What is a peremptory norm in international law, and what is its alternative name?

A peremptory norm, also known by the Latin term jus cogens, is a fundamental principle of international law. It is recognized by the entire international community of states as a norm from which no deviation or exception is permitted.

What is the primary characteristic that defines a peremptory norm?

The defining characteristic of a peremptory norm is that no derogation, meaning no violation or exception, is permitted. This makes it a supreme and unchangeable principle in international law.

Are there universally agreed-upon lists of peremptory norms, and how do they achieve this status?

No, there is no universal agreement on precisely which norms qualify as jus cogens, nor is there a single, definitive process for how a norm achieves that status. Recognition often arises from case law and evolving societal attitudes.

What are some examples of norms that are generally accepted as peremptory?

Generally accepted peremptory norms include prohibitions against genocide, maritime piracy, slavery and the slave trade, wars of aggression and territorial aggrandizement, torture, and refoulement (the forced return of refugees).

How do peremptory norms differ from ordinary customary international law?

Ordinary customary international law can be altered or set aside by treaties between states. In contrast, peremptory norms cannot be violated by any means, including international treaties, local customs, or even general customary rules that do not possess the same high normative force.

When can the historical roots of the concept of peremptory norms be traced back?

The conceptual basis for peremptory norms can be traced back to the mid-18th century, with discussions found in Vattel's The Law of Nations (1758) and Christian Wolff's Jus Gentium (1764), which were rooted in principles of natural law.

Which international court's decisions hinted at the existence of peremptory norms, even without explicitly naming them?

The Permanent Court of International Justice, particularly in the S.S. Wimbledon case in 1923, made statements suggesting that state sovereignty is not inalienable. These statements indicated the existence of higher legal principles that could override state sovereignty, foreshadowing the concept of peremptory norms.

What is the significance of Article 53 of the Vienna Convention on the Law of Treaties concerning peremptory norms?

Article 53 of the Vienna Convention on the Law of Treaties, adopted in 1969, states that any treaty which conflicts with a peremptory norm of general international law is void. This formally recognized the supremacy of such norms over treaty agreements.

Who were the primary proponents advocating for the inclusion of peremptory norms in the Vienna Convention on the Law of Treaties?

The concept of peremptory norms within the Vienna Convention was notably championed by Third World and socialist states during the 1960s, reflecting a desire to establish fundamental legal principles that could not be overridden by powerful states.

According to the Vienna Convention, how can a peremptory norm be modified?

A peremptory norm can only be modified by a subsequent norm of general international law that possesses the same peremptory character. This ensures that any change maintains the highest level of legal authority.

Does the Vienna Convention on the Law of Treaties provide an exhaustive list of peremptory norms?

No, the Vienna Convention does not specify or list all peremptory norms. However, it does mention the prohibition on the threat or use of force and the prohibition on the use of coercion to conclude an agreement as being related to these fundamental principles.

Beyond the examples in the introduction, what other prohibitions are generally included as peremptory norms?

Other prohibitions generally considered peremptory norms include those against waging aggressive war, crimes against humanity, war crimes, apartheid, and slavery.

What have international tribunals determined regarding a state's ability to acquire territory through war?

International tribunals have held that it is impermissible for a state to acquire territory through war. This ruling reflects the understanding that such territorial acquisition violates a peremptory norm.

What are some points of disagreement or criticism regarding the concept of peremptory norms?

Critics question the idea of a hierarchy of international legal norms, disagree on the methods by which norms achieve peremptory status, and note that the concept can seem at odds with the traditionally consensual basis of international law and state sovereignty.

How has the enforceability of peremptory norms evolved concerning individuals, especially after the Nuremberg Trials?

Since the Nuremberg Trials, which marked the first instance of holding individuals accountable under international law, there has been increasing acceptance that certain peremptory norms define criminal offenses enforceable against individuals, not just states. This is now widely considered uncontroversial.

On what basis were Nazi atrocities criminalized and punished at the Nuremberg Trials, if not explicitly using the term 'peremptory norm'?

The criminalization at the Nuremberg Trials was based on the principle that civilization could not tolerate the repetition of such atrocities, as it could not survive them. The language of peremptory norms was not explicitly used at the time.

Do states universally agree on whether a specific action violates a peremptory norm?

No, disagreements often arise regarding whether a particular case constitutes a violation of a peremptory norm. States generally maintain the right to interpret these concepts within their own legal frameworks.

What is the general stance of large states towards the concept of peremptory norms?

Many major states have accepted the concept of peremptory norms. Some have ratified the Vienna Convention on the Law of Treaties, while others consider it 'codificatory' of existing international law, and some have applied the concept in their international dealings.

What case involving the execution of juvenile offenders is cited as an example related to jus cogens?

The case of Michael Domingues v. United States is cited as an example where an international body, the Inter-American Commission of Human Rights, opined on a jus cogens norm concerning the execution of juvenile offenders.

What specific jus cogens norm did the Inter-American Commission of Human Rights identify in the Michael Domingues case?

The Commission concluded that there exists a jus cogens norm prohibiting the imposition of capital punishment on individuals who committed their crimes before reaching the age of 18.

What was the subsequent development in the United States regarding the execution of juvenile offenders, potentially influenced by international norms?

Following the Domingues case, the United States banned the execution of juvenile offenders. The Supreme Court, in the case of Roper v. Simmons, cited evolving international norms as one of the reasons for this ban, although the report itself was non-binding.

What is the status of the prohibition against torture within international law?

The prohibition of torture is regarded as a rule of customary international law that has achieved the status of jus cogens, meaning it is a peremptory norm from which no derogation is permitted.

What did the International Criminal Tribunal for the Former Yugoslavia (ICTY) rule regarding the prohibition of torture?

In the case of Prosecutor v. Furundžija, the ICTY stated that there is a jus cogens norm prohibiting torture. This ruling affirmed its status as a fundamental principle of international law.

What authority does the ICTY state every state possesses concerning individuals accused of torture?

The ICTY stated that every state is entitled to investigate, prosecute, punish, or extradite individuals accused of torture who are found within its jurisdiction. This reflects the universal obligation to address torture.

How did the U.S. Court of Appeals describe torturers in the Filártiga v. Peña-Irala case?

In Filártiga v. Peña-Irala, the court described a torturer as having become, like pirates and slave traders before them, hostis humani generis, meaning an enemy of all mankind. This highlights the universal condemnation of torture.

What does the Latin term hostis humani generis signify in international law?

Hostis humani generis is a Latin term meaning 'enemy of all mankind.' It is used to describe individuals who commit crimes so heinous that they are considered enemies of the entire international community, such as pirates, slave traders, and torturers.

What does the sidebar on 'Judicial interpretation' list as forms of legal interpretation?

The sidebar lists various forms of judicial interpretation, including constitutional review, judicial opinion, interpretation in Catholic canon law and Islamic jurisprudence (Ijtihad), kritarchy, statutory interpretation, and concepts related to judicial misconduct such as activism, chilling effect, discretion, immunity, restraint, and ultra vires.

What general rules or principles of interpretation are mentioned in the 'Judicial interpretation' sidebar?

The sidebar lists general rules and principles such as accountability, adversarial and inquisitorial systems, appeal, conflict of laws (including forum shopping), the golden rule, the mischief rule, the plain meaning rule, precedent, reasonableness, rule according to higher law, and concepts related to separation of powers like judicial independence and parliamentary sovereignty.

What general theories of legal interpretation are presented in the sidebar?

The sidebar outlines several theories of interpretation, including common good constitutionalism, jurisprudence, legal realism, legal formalism, legal process, legitimacy, the living constitution doctrine, originalism (including original meaning and intent), purposive approach, and textualism.

What international aspects related to law are included in the 'Judicial interpretation' sidebar?

The sidebar includes international aspects such as anarchy in international relations, hard law, international litigation, international legal theories, monism and dualism in international law, peremptory norms, soft law, and universal jurisdiction.

According to the navbox on International Criminal Law, what is the role of peremptory norms?

Peremptory norms are listed as one of the primary 'Sources' of international criminal law. This indicates their foundational importance in establishing the principles and prohibitions that govern international criminal justice.

What specific international crimes are listed under 'Crimes against international law' in the navbox?

The navbox lists crimes such as crimes against humanity, crime of aggression, crime of apartheid, genocide (including genocidal intent and incitement), piracy, slave trading, starvation, and war crimes.

What historical international tribunals are mentioned in the navbox for international criminal law?

The navbox mentions the International Military Tribunal (Nuremberg Trials), the International Military Tribunal for the Far East, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone, among others.

What are some 'Related concepts' to international criminal law listed in the navbox?

Related concepts include command responsibility, superior orders, joint criminal enterprise, international humanitarian law, international speech crimes, and universal jurisdiction. These concepts are crucial for understanding the application and scope of international criminal law.

What does the Latin term 'jus cogens' literally translate to in English?

The Latin term 'jus cogens' translates to 'compelling law' in English. This translation underscores the authoritative and non-derogable nature of these fundamental international legal principles.

What is the historical significance of Vattel's 'The Law of Nations' and Christian Wolff's 'Jus Gentium' regarding peremptory norms?

These 18th-century works are cited as early discussions rooted in natural law principles that foreshadowed the concept of peremptory norms, suggesting the existence of fundamental, unchangeable laws governing nations.

How does the concept of peremptory norms challenge traditional notions of state sovereignty?

Peremptory norms challenge absolute state sovereignty because they impose fundamental obligations that states cannot override through treaties or consent. This implies that certain principles are considered superior to the will of individual states, as indicated by the S.S. Wimbledon case's statement that state sovereignty is not inalienable.

What is the role of case law and social attitudes in establishing peremptory norms?

Since peremptory norms are not defined by an authoritative body, they arise and evolve through judicial decisions (case law) and changing social and political attitudes within the international community.

What is the legal implication if a treaty conflicts with a peremptory norm?

According to Article 53 of the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm of general international law at the time of its conclusion is considered void.

What does the term 'refoulement' refer to, as mentioned in the list of generally accepted peremptory norms?

Refoulement refers to the practice of forcibly returning refugees or asylum seekers to a country where they are likely to face persecution. Its prohibition is considered a peremptory norm of international law.

What is the significance of the 'Nuremberg Charter' and 'Nuremberg principles' as sources of international criminal law?

The Nuremberg Charter and principles established the legal framework and foundational concepts for prosecuting individuals for international crimes, notably war crimes, crimes against peace, and crimes against humanity, serving as key sources for modern international criminal law.

What does the term 'ultra vires' mean in the context of judicial misconduct?

Ultra vires, meaning 'beyond the powers,' refers to actions taken by a judicial officer or court that exceed their legal authority or jurisdiction. This can be considered a form of judicial misconduct.

What is the 'mischief rule' in statutory interpretation?

The mischief rule is an approach to statutory interpretation where courts examine the problem or 'mischief' that a law was intended to remedy. The interpretation then aims to apply the law in a way that effectively addresses that specific issue.

What does 'forum shopping' entail in the context of conflict of laws?

Forum shopping is the practice where litigants choose a particular court or jurisdiction to bring their case based on which location offers the most favorable laws or procedures for their claim, often exploiting differences between legal systems.

What is the 'golden rule' of statutory interpretation?

The golden rule allows a court to depart from the strict literal meaning of a statute if applying it would lead to an absurd, repugnant, or unjust outcome. It provides flexibility to avoid unintended consequences of literal interpretation.

What are the core tenets of 'monism' and 'dualism' in international law?

Monism views international law and domestic law as part of a single, unified legal system, while dualism considers them as two distinct and separate legal systems. This distinction affects how international norms are incorporated and applied within a country.

What does 'opinio juris sive necessitatis' mean, and why is it important in international law?

Opinio juris sive necessitatis is a Latin phrase meaning 'opinion of law or necessity.' It refers to the belief by states that their actions are legally required or permitted, which is a crucial element in establishing customary international law.

What is the relationship between peremptory norms and 'erga omnes' obligations?

Peremptory norms typically create 'erga omnes' obligations, which are duties owed by states to the international community as a whole. Violations of these norms are considered offenses against all states.

How does 'universal jurisdiction' relate to peremptory norms?

Universal jurisdiction allows any state to claim criminal jurisdiction over certain international crimes, regardless of where the crime was committed or the nationality of the perpetrator or victim. This principle is often applied to violations of peremptory norms, such as genocide or torture.

What does the term 'entrenched clause' imply in a legal context?

An entrenched clause is a provision within a legal document, such as a constitution, that is protected against easy amendment or repeal. This concept shares similarities with peremptory norms, which are also protected from derogation.

What is the purpose of the 'Authority control databases' section at the end of the article?

The Authority control databases section provides links to standardized cataloging records from various national and international libraries and archives (like the Library of Congress and Bibliothèque nationale de France). This helps in identifying, organizing, and accessing reliable information about the concept of peremptory norms.

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Defining Peremptory Norms

The Core Concept

A peremptory norm, often referred to by its Latin designation jus cogens (meaning "compelling law"), represents a fundamental principle within international law. It is a norm that is universally accepted and recognized by the international community of states as being of such paramount importance that no derogation or exception is permitted. These norms form the bedrock of the international legal order, setting absolute prohibitions on certain conduct.

Universal Acceptance

The status of a peremptory norm is derived from its acceptance and recognition by the international community of states as a whole. This implies a broad consensus, transcending regional or specific group agreements. Unlike ordinary customary international law, which can be modified by treaties or specific state practice, jus cogens norms are considered immutable, capable of being altered only by another norm of the same character.

Non-Derogable Principles

The defining characteristic of a peremptory norm is its non-derogable nature. This means that no state can lawfully deviate from these principles, regardless of treaties, local customs, or even general customary international law that lacks the same normative force. Any treaty provision that conflicts with a peremptory norm is considered void ab initio (from the beginning).

Status in International Law

Hierarchy of Norms

Peremptory norms occupy a unique and elevated position within the hierarchy of international law. While traditional international law is often viewed as consensual, relying on the consent of states to create obligations, jus cogens norms are seen as having a higher authority. They bind states irrespective of their explicit consent, reflecting fundamental values considered essential for the global community.

Vienna Convention on the Law of Treaties

The concept of peremptory norms was formally codified in Article 53 of the 1969 Vienna Convention on the Law of Treaties. This article states that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. It further defines such a norm as one 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 the same character.^[6]^[8]

Distinction from Customary Law

Ordinary customary international law arises from consistent state practice coupled with a belief that such practice is legally required (opinio juris). However, customary law can be altered by subsequent state practice or treaties between states. Peremptory norms, by contrast, are considered superior and immutable, reflecting fundamental principles that cannot be overridden by ordinary legal mechanisms.

Historical Roots and Evolution

Early Conceptions

While the term jus cogens gained prominence in the mid-20th century, the underlying concept of fundamental, unalterable legal principles can be traced back much further. Thinkers like Christian Wolff (1764) and Emer de Vattel (1758) discussed principles of natural law that were considered binding on all nations, suggesting an early recognition of norms that transcended state consent.^[4]

Judicial Recognition

Early judicial pronouncements, such as those from the Permanent Court of International Justice (PCIJ), hinted at the existence of norms that could not be contracted away by states. The S.S. Wimbledon case (1923) is often cited, where the court stated that state sovereignty is not absolute, implying limitations imposed by international law itself.^[4]

Codification Efforts

The formal codification of jus cogens gained momentum during the 1960s, particularly championed by developing and socialist states seeking to limit the power of colonial or dominant states. This effort culminated in the inclusion of Article 53 in the Vienna Convention on the Law of Treaties, establishing the voidness of treaties conflicting with peremptory norms.^[5]

Key Principles and Rules

Treaty Voidness

As stipulated by the Vienna Convention, any treaty that, at the time of its conclusion, conflicts with a peremptory norm of general international law is rendered void. This principle underscores the supremacy of jus cogens over conventional international law when a direct conflict arises.

Modification of Norms

While peremptory norms are non-derogable, the Vienna Convention acknowledges that they are not static. A peremptory norm can only be modified by a subsequent norm of general international law that possesses the same character. This allows for the evolution of international law to reflect changing global values and norms.

Individual Responsibility

Certain peremptory norms define criminal offenses that are enforceable not only against states but also against individuals. This principle gained significant traction following the Nuremberg Trials, establishing that individuals can be held criminally responsible for violating fundamental international norms, regardless of their official capacity or state orders.

Illustrative Examples of Jus Cogens

Core Prohibitions

While there is no exhaustive, universally agreed-upon list, several norms are widely accepted as having jus cogens status. These typically include prohibitions against:

Genocide: The deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying it.^[9]
Piracy: Acts of robbery or criminal violence committed by ship or boat crews against another ship or boat, typically on the high seas.
Slavery and Slave Trade: The ownership and control of persons as property, and the trade therein.
Wars of Aggression: The initiation of armed conflict by a state against the territorial integrity or political independence of another state.
Torture: The intentional infliction of severe physical or mental pain or suffering on an individual.
Refoulement: The forced return of refugees or asylum seekers to a country where they would face persecution.

Judicial and Commission Opinions

International bodies have affirmed the jus cogens status of certain norms through their jurisprudence:

The International Criminal Tribunal for the Former Yugoslavia (ICTY) recognized the prohibition against torture as jus cogens in the Prosecutor v. Furundžija case.^[3]^[13]
The Inter-American Commission of Human Rights, in the Michael Domingues v. United States case, concluded that a jus cogens norm exists prohibiting the imposition of capital punishment on individuals who committed crimes before reaching 18 years of age.^[12] This contributed to the evolving international standard reflected in the US Supreme Court's decision in Roper v. Simmons.

Debates and Recognition

Challenges to the Concept

Despite its codification, the concept of peremptory norms faces certain criticisms. Some scholars question the strict hierarchy of international law, arguing that international law is fundamentally based on state consent and that imposing non-derogable norms might undermine state sovereignty. There is also ongoing debate regarding the precise criteria for recognizing a norm as jus cogens and which specific norms qualify.

State Acceptance

Many major states have accepted the concept of peremptory norms, either by ratifying the Vienna Convention or by acknowledging its status as codificatory of existing international law. The application of these norms is increasingly evident in international tribunals and state practice, particularly concerning egregious violations of human rights and international peace.

Related Legal Concepts

Erga Omnes Obligations

Peremptory norms are closely linked to the concept of erga omnes obligations. While jus cogens refers to the character of the norm itself (i.e., non-derogable), erga omnes refers to the scope of the obligation – owed by states towards the international community as a whole. Many jus cogens norms give rise to erga omnes obligations, meaning all states have a legal interest in their protection.

Universal Jurisdiction

The principle of universal jurisdiction allows national courts to prosecute certain international crimes, regardless of where the crime occurred or the nationality of the perpetrator or victim. This principle is often invoked in relation to violations of jus cogens norms, such as torture and genocide, reflecting the idea that these offenses are of concern to the entire international community.

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References

M. Cherif Bassiouni. (Autumn 1996) "International Crimes: 'Jus Cogens' and 'Obligatio Erga Omnes'". Law and Contemporary Problems. Vol. 59, No. 4, p. 68.

Prosecutor v. FurundÅ¾ija, International Criminal Tribunal for the Former Yugoslavia, 2002, 121 International Law Reports 213 (2002)

Cherif Bassiouni. 2011. Crimes Against Humanity: Historical Evolution and Contemporary Application. New York: Cambridge University Press, p. 266. See also Wimbledon Case, p.25

Umut Ãzsu, Completing Humanity: The International Law of Decolonization, 1960-82 (Cambridge: Cambridge University Press, 2023), ch. 2.

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 and Jan Wouters (2005). Grondlijnen van internationaal recht, Intersentia, Antwerp etc., p. 92.

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, 310â313

The Michael Domingues Case: Report on the Inter-American Commission on Human Rights, Report No. 62/02, Merits, Case 12.285 (2002)

FilÃ¡rtiga v. PeÃ±a-Irala, 630 F. 2d 876 (2d Cir.1980).

A full list of references for this article are available at the Peremptory norm Wikipedia page

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The Unassailable Pillars of Law

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Defining Peremptory Norms ⚖️

📜 The Core Concept

🌍 Universal Acceptance

🚫 Non-Derogable Principles

Status in International Law 🏛️

🔗 Hierarchy of Norms

📜 Vienna Convention on the Law of Treaties

⚖️ Distinction from Customary Law

Historical Roots and Evolution ⏳

💡 Early Conceptions

⭐ Judicial Recognition

🤝 Codification Efforts

Key Principles and Rules ⚙️

📝 Treaty Voidness

🔄 Modification of Norms

👤 Individual Responsibility

Illustrative Examples of Jus Cogens ❗

💥 Core Prohibitions

⚖️ Judicial and Commission Opinions

Debates and Recognition 🤔

❓ Challenges to the Concept

✅ State Acceptance

Related Legal Concepts 🔗

🌐 Erga Omnes Obligations

⚖️ Universal Jurisdiction

Teacher's Corner 🧑‍🏫

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📜 Important Notice

Dive in with Flashcard Learning!

Defining Peremptory Norms

The Core Concept

Universal Acceptance

Non-Derogable Principles

Status in International Law

Hierarchy of Norms

Vienna Convention on the Law of Treaties

Distinction from Customary Law

Historical Roots and Evolution

Early Conceptions

Judicial Recognition

Codification Efforts

Key Principles and Rules

Treaty Voidness

Modification of Norms

Individual Responsibility

Illustrative Examples of Jus Cogens

Core Prohibitions

Judicial and Commission Opinions

Debates and Recognition

Challenges to the Concept

State Acceptance

Related Legal Concepts

Erga Omnes Obligations

Universal Jurisdiction

Teacher's Corner

True or False?

Test Your Knowledge!

Gamer's Corner

Discover other topics to study!

References

Feedback & Support

Disclaimer

Important Notice