On the Constitutionalization of General International Law

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bb) Relational Entrenchment Proper4bb) Relational Entrenchment Proper4bb) Relational Entrenchment Proper
α) It used to be the most fundamental difference between municipal legal systems and international law that the former were perceived as objective systems whereas the latter was perceived as merely the sum of subjective legal relationships. However, this difference has been put into question by the emergence of international jus cogens, or peremptory norms. Originally, jus cogens is a civil law term; here, the concept indicates those norms of private law from which parties to a contract must not derogate;187 it therefore restricts the freedom of individuals to derogate from State law. In contrast, the exact meaning of international jus cogens is by no means clear. To draw an international parallel to the civil law situation is inherently at odds with the traditional concept of international law which did not provide for a law above the will of the individual States.188 But it is clear, if words are to have any meaning, that international jus cogens rules in some way must restrict — ante or post factum — the freedom of States to make law. As such a legal consequence is only feasible on the basis of an objective conception of the legal order of which jus cogens is part, the latter's emergence had to go hand in hand with the emergence of an objective concept of the international legal order,189 and therefore it can be claimed that it has revolutionized190 the very structure of international law.191
Because of the very different context of jus cogens in international law as compared to municipal law, quite naturally the former purportedly has developed features different from its civil law origin. In particular, international law does not appear to distinguish between jus cogens and ordre public or public policy norms192 whereas, in civil law, this distinction is an important one.193 Rules of international jus cogens are said therefore to combine legal attributes kept separate in municipal legal systems:194 being entrenched with regard to contracts/treaties, and being entrenched with regard to other general rules (jus dispositivum). International jus cogens is meant to be not only, as is civil law jus cogens, law which may not be derogated from by private contract or, in the international context, by treaty;195 it is also law meant to prime all other law and only to be modified by another rule of jus cogens;196 under Article 53 of the VTC, jus cogens rules are entrenched also with respect to jus dispositivum.197
Article 53 of the VTC does not specify whether rules of any source of international law can be jus cogens; it refers only to general i.e. universal international law. While, according to some, jus cogens must be customary law,198 there is no intrinsic reason why consensus law or, indeed, treaty rules (provided they are universal international law)199 should not acquire that status. It must also be borne in mind that those who consider that only customary law may be jus cogens include, in their notion of customary law, also consensus law. It therefore appears safe to regard at least both international customary law and international consensus as a possible source of jus cogens.
Three tests appear to be discussed for determining whether a given international law rule has acquired the status of jus cogens: two procedural ones and a contents based one.200 The first procedural test (jus cogens according to Article 53 of the VTC) has found expression in Article 53 of the VTC, quoted above.201 As it has been put forward in a treaty it cannot decide on the customary law category of jus cogens;202 but it may be understood as the expression of a customary law norm.203 As has been said correctly, „[t]he criteria [this clause] relies on are utterly formalistic“.204 The second procedural test (jus cogens according to precedent) has been relied on repeatedly by municipal and international courts.205 It simply applies the general judicial method of determining international law to the question of the emergence of jus cogens. It differs from Article 53 of the VTC in putting greater weight on judicial decisions and other authorities and looking less directly to the acceptance and recognition of a rule as jus cogens by the international community as a whole. There is an obvious advantage to both tests: norms of jus cogens having passed one of them are firmly integrated into international law; they are positive law adopted by the international community or recognized by judicial precedents and therefore international law within the Kelsenian Grundnorm.
The contents based test may have found expression in the fact that „almost all authors having dealt with the issue are unanimous in holding that the justification for the superior legal force of a peremptory norm must be sought in its contents, inasmuch as it reflects common values essential for upholding peace and justice in the world“.206 This fact may be taken as a case of „the teachings of the most highly qualified publicists of the various nations“ which are a „subsidiary means for the determination of rules of law“ within the meaning of Article 38 (1) (d) of the ICJ Statute. This position can be taken either to describe the most likely reasons for the international community to elevate a norm, in the form provided for by Article 53 of the VTC, to the position of jus cogens (weak version), or to define the contents of a norm as sufficient reason for that elevation (strong version). The first alternative, dealing only with the „legislative“ motives the international community regularly has when defining a jus cogens norm, effectively accepts (one of) the procedural test(s). In contrast, jus cogens defined according to the second alternative (jus cogens according to its contents) is pure natural law and therefore not easily reconcilable with the idea of the international community as a man-made construction.207 Also, to consider a rule as entrenched for purely substantive reasons i.e. because its contents are derived from a more general norm — e.g. that there ought to be peace and justice in the world — runs the obvious risk that its rules are not readily ascertainable. On the one hand, it presupposes that such a deduction can only lead to rules compatible with one another i.e. to non-contradictory rules.208 But the opposite is the case: different people can, and do, reasonably maintain that peace and justice are best served by the absolute proscription of torture, and by its permitted application in certain cases, respectively. This approach therefore generally does not allow to determine which one of two contradictory norms is jus cogens, and thereby entrenched with regard to the other. On the other hand, „it would be only too easy to postulate as a norm of jus cogens a principle which happened neatly to serve a particular ideological or economic goal“.209
To remedy this problem, it has been proposed to define jus cogens as those rules of international law regarded by the community of states as so essential for the system of international law as a whole that the willingness to respect these rules has become absolutely indispensable in the sense of an international ordre public in order for a new state to be admitted to the international community and such that the community of states is even prepared to accept difficulties in international relations as a result.210
But this test has the inconvenience that it can only be applied in the rather rare cases in which the adherence to a norm has been made the precondition of the recognition of a State (which happens, for factual reasons, increasingly seldom), and therefore cannot be taken to define norms of jus cogens exhaustively.
The three tests discussed to define the jus cogens status of a norm — the two procedural ones and the strong version of the contents based one — are all quite unknown to municipal systems where it is generally a question of the interpretation of an individual norm whether or not it is to be considered as jus cogens.211 They are also clearly quite different among themselves. It does not appear possible to decide that the one or the other of those tests is the correct one; rather, they appear to coëxist. It follows that those norms jus cogens according to Article 53 of the VTC, those norms jus cogens according to precedent, and those norms jus cogens according to their contents may very well be different norms. While, for practical reasons, it is rather unlikely that a norm jus cogens according to Article 53 of the VTC, or according to precedent, is not at the same time a norm jus cogens according to its contents — for what other reasons than for its contents would the international community, or a court, elevate a norm to the category of jus cogens? —, it is very likely that there are norms considered, at least by some, as jus cogens according to their contents that will not fulfill the procedural test either of Article 53 of the VTC or of precedent.212
β) On international jus cogens generally, it has been remarked that [i]n general, theory and practice diverge: there seems to be a pronounced gulf between the views of scholars and those of states and most international tribunals on the supremacy of human rights law, either totally or partially. Despite the efforts of proponents, state practice and judicial decisions are sparse in recognizing and giving effect to ... the doctrine of jus cogens.213
This appears to indicate that there is no jus cogens within the Kelsenian Grundnorm of general international law. But the jurisprudence of national and international courts on jus cogens cannot simply be put on the same side of the divide as State (i.e. government) practice; rather, it is situated somewhere in the middle between the views of scholars and that practice. It also is more complicated. It is most developed in torture and war crimes cases.
The pivotal judicial decision on the jus cogens character of the prohibition of torture is the judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case Prosecutor v. Furundzija.214 The Chamber there held that 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. 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. ...
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, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. 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".
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 treatymaking 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 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.215

This discourse was, in Furundzija, clearly obiter216 (and aptly called a „jurisprudence commando“)217 as is demonstrated inter alia by the fact that the Appeals Chamber of the ICTY, seized of an appeal against the judgment quoted, upheld the judgment but did not mention jus cogens with one single word.218 Nevertheless, while the brazen founding of that discourse in natural law („because of the importance of the values it protects“) has not been repeated widely by other courts, the Trial Chamber's decision was quite influential in municipal and international jurisprudence. It is now widely admitted that the prohibition of torture is a jus cogens rule.219 But there is dispute as to the test on the basis of which it may be found to be such a rule, and as to the consequences that may flow from its being jus cogens. In this context, it is striking that, as far as I can see, no judicial decision has adopted the first procedural test provided for in Article 53 of the VTC.
Clearly, according to Furundzija, the prohibition of torture is jus cogens according to its contents. In contrast, in Al-Adsani the ECtHR stated that it „accepts, on the basis of these authorities [quoted in the preceding paragraph i.e. treaties and judicial decisions], that the prohibition of torture has achieved the status of a peremptory norm in international law“.220 These differences about the legal basis of the jus cogens character of the prohibition of torture correspond to a certain degree to different legal consequences flowing therefrom (if any, because in most cases, as in Furundzija itself, the statement of the jus cogens quality of the prohibition of torture remains obiter).221 Put shortly, and leaving aside possibly important details, it appears that those jurisdictions founding their decisions on jus cogens according to its contents assumed, true to the natural law test they applied for determining jus cogens, on the basis of the values protected by the rule considered as jus cogens, a wide array of legal consequences going well beyond those laid down in Article 53 of the VTC,222 whereas those jurisdictions presumably applying the second procedural test (i.e. precedent) looked at general international law as it stood at the time of their respective decision (which presumably is still the law at the time of writing) for determining those consequences.
Some courts have specifically refused to draw certain consequences from the fact that the defendant State had acted in violation of jus cogens. While not always clearly stating on the basis of which test they accepted the jus cogens character of the proscription of torture, or of particularly heinous war crimes, or accepting that character for argument's sake only, when deciding on the legal consequences to be drawn from it, they did not accept the natural law approach chosen in Furundzija. In particular, Al-Adsani did not find it „established that there is yet acceptance in international law of the proposition that States are not entitled to immunity in respect of civil claims for damages brought against them in another State for crimes against humanity“.223 The Highest Special Court of Greece held „that according to the current state of international law there still exists a generally recognized international norm, which prohibits that a State be sued in another State for damages in relation to crimes which were committed on the territory of the forum state with the participation of troops of the defendant State in times of war as well as in times of peace“,224 those crimes having been war crimes of the most heinous kind. Similarly, the German Supreme Court, also dealing with war crimes, held that „there have recently been tendencies toward a more limited principle of state immunity, which should not apply in case a peremptory norm of international law (jus cogens) has been violated ... According to the prevailing view, this is not international law currently in force ...; otherwise the principle of immunity would be of little use“.225
In contrast, in Jones v. Saudi Arabia, summarizing the Law Lords' speeches in the Pinochet case,226 it was held that „a state cannot assert immunity ratione materiae in relation to a criminal prosecution of torture in as much as torture is a breach of jus cogens under international law“.227 This was so because a breach of a jus cogens prohibition cannot constitute a legitimate State policy; especially, „torture can no longer fall within the scope of the official duties of a state official“;228 „torture cannot constitute an act of government“.229 Jones v. Saudi Arabia has extended this reasoning to civil proceedings brought not against a foreign State (which itself remains immune ratione personae)230 but individually against a State official.231 The jus cogens or, more exactly, the ordre public character of the prohibition of torture thus has been used normatively (if possibly contrafactually)232 to circumscribe, as a matter of international law, the admissible scope of State functions.233 But it is also possible to understand Jones v. Saudi Arabia in the terms of Furundzija as „internationally delegitimis[ing] any [municipal] act authorizing torture“ and thereby giving „additional legal effects [to] peremptory norms, which could even include the abrogation of intra-state measures that obstruct the effective enforcement of a jus cogens norm“.234 This understanding would imply a kind of a hierarchical argument i.e. that jus cogens primes obstructing (not necessarily directly conflicting) municipal law.
Similarly, though with a different reasoning, the Italian Supreme Court (Corte di cassazione) has held in the Ferrini case235, quoting Furundzija, that norms prohibiting war crimes (in the case discussed, deportation for the purpose of forced labor) are jus cogens norms prevailing over every other international law norm and, therefore, also those concerning immunity.236 In reaching this conclusion, the Court relies exclusively on „the particularly grave violation ... of the fundamental rights of the human person, whose protection is upheld by peremptory norms of international law“,237 thereby applying the natural law test. This decision reflects two earlier „Courts of First Instance [cases which] assumed that the stronger normative quality of the jus cogens prohibition of torture would extinguish all colliding non-peremptory norms“.238 This reasoning presupposes that there is a conflict between State immunity rules and the jus cogens rule in question;239 the assumed hierarchy of norms can only assist in resolving such conflicts. But of course, similarly to the Jones v. Saudi-Arabia case, a policy argument is possible according to which jus cogens primes also all merely obstructing international law.
This overwiew over judicial decisions allows the tentative conclusion that it is universally accepted by municipal and international courts alike, if in some decisions for argument's sake only, that the prohibition of torture, and also the prohibition of war crimes, constitutes jus cogens. In international law as applied by the ECtHR as well as by the German and Greek courts a violation of a jus cogens rule (jus cogens according to precedent) by a State does not affect the power of that State to rely on its immunity before the courts of another State. In international law as applied by the English courts a violation of a jus cogens rule (also jus cogens according to precedent) deprives the State of the immunity ratione materiae in criminal prosecutions and, because violations of jus cogens cannot constitute acta jure imperii, in civil proceedings against an individual official. In international law as applied by the Italian courts jus cogens rules (jus cogens according to its contents) are hierarchically superior to other international law or prime even all merely obstructing such rules. At present, it does not appear possible to generalize these very specific statements.
Neither it is necessary to do so in the present context of the discussion of jus cogens entrenchment. Indeed, the obiter dictum in Furundzija apart, no court has ever held that the jus cogens character of a rule leads to the latter's entrenchment in this sense that it could not be affected by a subsequent treaty or that it could only be abolished, restricted or amended by another rule having the same character. While apparently no case posing that exact question ever was before any court the fact remains that there is no judicial pronouncement in this respect (although these questions, as least insofar as it concerns jus cogens according to Article 53 of the VTC, expressly are dealt with by that provision). There is therefore no evidence of a general international law rule within the Kelsenian Grundnorm replicating the jus cogens definition in Article 53 of the VTC i.e. claiming that a general international law norm may become relationally entrenched. Indeed, the aspect that jus cogens is meant to prime all other (existing) law does not necessarily have this effect of protection against future developments. It is one thing for a court to try to fix the position of a jus cogens rule within the existing body of international law, even, as the Italian Supreme Court did, thereby disregarding another international law rule that would merely obstruct the full efficiency of the jus cogens rule. It is quite another thing to disregard purported international law — customary, consensus or treaty law — not jus cogens that had been developed by the (international community of) States after the emergence of the relevant jus cogens rule. Thus, in spite of the emergence of the category of jus cogens, it cannot (yet) be demonstrated that general international law provides for the relational entrenchment of those rules.240

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