Editing Peremptory norm

{{Short description|Principle of international law from which no derogation is permitted}}
{{EngvarB|date=January 2019}}
{{Judicial interpretation}}
A '''peremptory norm''' (also called '''{{Langx|la|jus cogens|label=none}}''')<ref>or '''''{{Langx|la|ius cogens|label=none}}''''' {{IPAc-en|ˌ|dʒ|ʌ|s|_|ˈ|k|oʊ|dʒ|ɛ|n|z|,_|ˌ|j|ʌ|s}}; [[Latin]] for "compelling law" {{Cite web | url=http://oxforddictionaries.com/definition/jus+cogens | archive-url=https://web.archive.org/web/20110717135623/http://oxforddictionaries.com/definition/jus+cogens | url-status=dead | archive-date=July 17, 2011 | title=Jus cogens &#124; Definition of jus cogens in English by Oxford Dictionaries}}</ref> is a fundamental principle of [[international law]] that is accepted by the international community of [[sovereign state|states]] as a [[Norm (sociology)|norm]] from which no [[derogation]] is permitted.

There is no universal agreement regarding precisely which norms are ''jus cogens'' nor how a norm reaches that status, but it is generally accepted that ''jus cogens'' bans [[genocide]], maritime [[piracy]], enslaving in general (i.e. [[slavery]] as well as [[History of slavery|slave trade]]), [[war of aggression|wars of aggression and territorial aggrandizement]], and generally as well [[torture]], and [[refoulement]].<ref>M. Cherif Bassiouni. (Autumn 1996) "International Crimes: 'Jus Cogens' and 'Obligatio Erga Omnes{{'"}}. ''Law and Contemporary Problems''. Vol. 59, No. 4, p. 68.</ref>

==Status of peremptory norms under international law==
Unlike ordinary [[Customary international law|customary law]], which has traditionally required consent and allows the alteration of its obligations between states through [[treaty|treaties]], peremptory norms may not be violated by any state "through international treaties or local or special customs or even general customary rules not endowed with the same normative force".<ref name="Prosecutor v. Furundžija 2002">''Prosecutor v. Furundžija'', International Criminal Tribunal for the Former Yugoslavia, 2002, 121 ''International Law Reports'' 213 (2002)</ref>

Discussions of the necessity of such norms could be traced back as far as 1758 (in Vattel's ''[[The Law of Nations]]'') and 1764 (in [[Christian Wolff (philosopher)|Christian Wolff]]'s ''Jus Gentium''), clearly rooted in principles of [[natural law]]. But it was the judgments of the [[Permanent Court of International Justice]] that indicate the existence of such a peremptory norm, in the [[S.S. Wimbledon case|S.S. ''Wimbledon'' case]] in 1923, not mentioning peremptory norms explicitly but stating how state sovereignty is not inalienable.<ref>Cherif Bassiouni. 2011. ''Crimes Against Humanity: Historical Evolution and Contemporary Application''. New York: Cambridge University Press, p. 266. See also Wimbledon Case, p.25</ref>

Under Article 53 of the [[Vienna Convention on the Law of Treaties]], championed by [[Third World]] and socialist states during the 1960s,<ref>[[Umut Özsu]], ''Completing Humanity: The International Law of Decolonization, 1960-82'' (Cambridge: Cambridge University Press, 2023), ch. 2.</ref> any treaty that conflicts with a peremptory norm is void.<ref>Vienna Convention on the Law of Treaties, Article 53, May 23, 1969, 1155 U.N.T.S 331, 8 ''International Legal Materials''  679 (1969)</ref> The treaty allows for the emergence of new peremptory norms,<ref>Vienna Convention on the Law of Treaties, Article 64, May 23, 1969, 1155 U.N.T.S 331, 8 ''International Legal Materials''  679 (1969)</ref> but does not specify any peremptory norms. It does mention the prohibition on the threat of use of force and on the use of coercion to conclude an agreement:

<blockquote>A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law 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.<ref>U.N. Doc. A/CONF.39/27 (1969), repinted in 63 Am. J. Int'l L. 875 (1969).</ref>
</blockquote>

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 [[War of aggression|aggressive war]], [[crimes against humanity]], [[war crimes]], maritime [[piracy]], [[genocide]],<ref>{{cite book |last1=Jones |first1=Adam |title=Genocide: A Comprehensive Introduction |date=2006 |publisher=Routledge |isbn=978-1-134-25981-6 |pages=28–30 |chapter-url=https://books.google.com/books?id=HXXJ4I4XuV8C&pg=PA28 |chapter=Is genocide ever justified?}}</ref> [[Crime of apartheid|apartheid]], [[slavery]], and [[torture]]. As an example, international tribunals have held that it is impermissible for a state to acquire territory through war.<ref>Marc Bossuyt and Jan Wouters (2005). ''Grondlijnen van internationaal recht'', Intersentia, Antwerp etc., p. 92.</ref><ref name="Prosecutor v. Furundžija 2002"/>

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 seems to be at odds with the traditionally consensual nature of international law considered necessary to state [[sovereignty]].

Some peremptory norms define criminal offences considered to be enforceable against not only states but also individuals. That 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.

Many large states have accepted this concept. Some of them have ratified the Vienna Convention, while others have stated in their official statements that they accept the Vienna Convention as "codificatory". Some have applied the concept in their dealings with international organizations and other states.

==Examples==

===Execution of juvenile offenders===
The case of ''[[Michael Domingues v. United States]]'' provides an example of an international body's opinion that a particular norm is of a ''jus cogens'' nature. 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.<ref name="The Michael Domingues Case 2001">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'', pp. 303, 310–313</ref> 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".<ref name="The Michael Domingues Case 2001"/> 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".<ref>The Michael Domingues Case: Report on the Inter-American Commission on Human Rights, Report No. 62/02, Merits, Case 12.285 (2002)</ref>

The United States has subsequently banned the execution of juvenile offenders. Although not necessarily in response to the above non-binding report, the Supreme Court cited evolving international norms as one of the reasons for the ban (''[[Roper v. Simmons]]'').

===Torture===
The prohibition of torture is a rule of customary international law regarded as ''jus cogens''.<ref>[[International Court of Justice]], Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment of 20 July 2012, § 99; [[European Court of Human Rights]], ''Al-Adsani v. the United Kingdom'' [GC], no. 35763/97, § 60, ECHR 2001 XI.</ref>
The [[International Criminal Tribunal for the Former Yugoslavia]] stated in ''Prosecutor v. Furundžija'' that there is a ''jus cogens'' for the prohibition against torture.<ref name="Prosecutor v. Furundžija 2002"/> 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".<ref>[[International Criminal Tribunal for the Former Yugoslavia]] (ICTY), ''Prosecutor v. Anto Furundzija'' (Trial Judgement), (IT-95-17/1-T), 10 December 1998, §§ 144 and 153-57.</ref> The [[United States Court of Appeals for the Second Circuit]] stated in ''Filártiga v. Peña-Irala'' that "the torturer has become, like the pirate and the slave trader before him, ''[[hostis humani generis]]'', an enemy of all mankind".<ref>''[[Filártiga v. Peña-Irala]]'', 630 F. 2d 876 (2d Cir.1980).</ref>

==See also==
*''[[Actio popularis]]''
* [[Customary international law]]
*[[Entrenched clause]]
*''[[Erga omnes]]''
*[[List of treaties by number of parties]]
*[[Universal jurisdiction]]

==References==
{{Reflist}}

==External links==
*[http://libraryresources.unog.ch/loader.php?type=d&id=1213931 Jus cogens (bibliography)]

{{International Criminal Law}}
{{Authority control}}

[[Category:International law]]
[[Category:International criminal law]]
[[Category:Legal doctrines and principles]]
[[Category:International law legal terminology]]