Can Jus Cogens Regress?
July 26, 2011
“States that respect human rights and operate on democratic principles tend to be the world’s most peaceful and stable. On the other hand, the worst violators of human rights tend to be the world’s aggressors and proliferators. These states export threats to global security, whether in the shape of terrorism, massive refugee flows, or environmental pollution. Denying human rights not only lays waste to human lives; it creates instability that travels across borders.”
The peremptory norms recognized by the international community as jus cogens, the law from which no sovereign derogation is permitted, appears to be an ever-expanding body of law. There is little agreement among scholars as to precisely how jus cogens norms acquire their status, but when a norm has risen to such a level– to appropriate a phrase from Justice Stewart– one knows it when one sees it. There is little doubt, even among those critical of the expansion of jus cogens as a threat to traditional Westphalian notions of sovereignty, there is broad agreement that there indeed has been an expansion.
But what makes a jus cogens norm, international consensus, can also break a jus cogens norm. As the failure of important players in the international community to live up to basic standards of human rights becomes all too frequent, the risk becomes greater that these expanded body of jus cogens norms might erode away.
Thus, in Henkin’s words, “almost all nations observe almost all principles of international law… almost all of the time.”‘ When a nation deviates from that pattern of presumptive compliance, frictions are created? To avoid such frictions in a nation’s continuing interactions, national leaders may shift over time from a policy of violation to one of compliance. It is through this transnational legal process, this repeated cycle of interaction, interpretation, and internalization, that international law acquires its “stickiness,” that nation-states acquire their identity, and that nations come to “obey” international law out of perceived self-interest. In tracing the move from the external to the internal, from one-time grudging compliance with an external norm to habitual internalized obedience, the key factor is repeated participation in the transnational legal-process. That participation helps to reconstitute national interests, to establish the identity of actors as ones who obey the law, and to develop the norms that become part of the fabric of emerging international society.
Such a regression, disastrous to the cause of human rights, is a function of the nature of jus cogens itself. The doctrine, though rooted in Enlightenment-era concepts of natural rights, has long been understood to be the product of the positive consent of nations. It represents a voluntary concession of sovereignty for the sake of a global conscience. The crimes against jus cogens are those so repugnant to the community of nations as the warrant universal condemnation. The jus cogens perpetrator is a hostis humani generis, an enemy of all humanity.
But when the behavior at issue is commonplace, the danger of erosion of jus cogens becomes very real. When the global community does not take action to punish a behavior, or punishes inconsistently, the argument can be made that the norms are being abandoned by the global community. That they are, in effect, no longer crimes jus cogens at all.
 Warren Christopher, In Our Own Best Interests: How Defending Human Rights Benefits Us All (2002). At p. xix.
 See, e.g.: Jason Ralph, Defending the Society of States: Why America Opposes the International Criminal Court and its Vision of World Society. “In international law such rules are considered jus cogens, that is ‘a peremptory rule of law which may only be superseded by another peremptory rule’.”
 Koh, Harold Hongju, “Why Do Nations Obey International Law?” (1997).Faculty Scholarship Series. Paper 2101. http://digitalcommons.law.yale.edu/fss_papers/2101 at 2641 [citation omitted].