Qualified Sovereignty and Jus Cogens as the International Grundnorm

June 13, 2010

The 65th anniversary of the United Nations is just around the corner. It is important to note that, while the United Nations Charters guarantees “the sovereign equality of all its Members,”[1] there is certainly nothing that asserts the absoluteness of national sovereignty. Nevertheless, even as the UN Charter takes on the role of an international constitution,[2] and the ICJ and ICC take on the role of World Courts, there remains a deeply rooted misunderstanding about the nature of national sovereignty and its relationship with international peremptory norms.

“Sovereignty has long been considered the grundnorm [sic] of international law. The sovereignty norm affirms the territorial integrity of the state and the rule of non-intervention. While many scholars have traced its development to the Peace of Westphalia, the sovereignty norm did not enter the lexicon of international law until the 18th Century, with the writings of Emerich de Vattel. Since then, the stature of the sovereignty norm has increased. In 1945, its primacy in international law was affirmed through codification in Article 2(4) of the United Nations Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state … .” The International Court of Justice (“ICJ”), which is the principal judicial organ of the United Nations, has acknowledged the importance of the sovereignty norm on numerous occasions.”[3]

The supposedly absolute nature of national sovereignty is in fact qualified by peremptory norms, which are determined by jus cogens. Jus Cogens (literally “compelling law”) should be viewed as the authentic Grundnorm[4] of modern international law. Of course, if one takes a pragmatic view of international law, that “[s]tate consent plays an important role in maintaining an international legal order [and t]he obligation of a contract in civil law, or the obligation of a treaty in international law, clearly arises by way of [sovereign] consent.”[5] However, the body of jus cogens, being one from which “no derogation is permitted,” represents a dramatic limitation to the authority of the sovereign.

Customary rules allow objectors to abstain from following the rule; jus cogens rules require objectors’ obedience. Jus cogens norms restrain state behavior and only the emergence of another norm possessing the same character can modify them. War crimes, crimes against humanity, and prohibitions on piracy, genocide, and slavery are all considered jus cogens norms of peremptory international law. However, “there is very little agreement as to which other norms fall within the category of jus cogens norms,” or how a norm reaches this level.

Though some debate still exists, jurists and academics generally agree that the prohibition against torture has reached the status of a jus cogens norm. The Ninth Circuit wrote, “We conclude that the right to be free from official torture is fundamental and universal, a right deserving of the highest status under international law, a norm of jus cogens.” The House of Lords recognized the jus cogens nature of the torture prohibition in Pinochet. The ICTY held that “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.”[6]

The “restraint on sovereignty” provided by peremptory norms is an essential characteristic of jus cogens. If jus cogens does not function as Grundnorm, and rather requires the positive consent of the sovereign, then sovereign is able to “opt out,” thus rendering the doctrine utterly ineffectual.

[1] United Nations Charter, Article 2, http://uncharter.org/article/2

[2] See, for example, Bardo Fassbender The United Nations Charter As Constitution of The International Community, 36 Colum. J. Transnat’l L. 529

[3] William J. Aceves, Relative Normativity: Challenging the Sovereignty Norm Through Human Rights Litigation 25 Hastings Int’l & Comp. L. Rev. 261 at  261[citations omitted]

[4] Grundnorm, meaning “ground norm,” was coined by famed jurist Hans Kelsen.  I use the term somewhat more colloquially here than Kelsen may have intended.

[5] Jianming Shen, The Basis of International Law: Why Nations Observe, 17 Dick. J. Int’l L. 287 at 316 [citations omitted]

[6] Stacy Humes-Schulz, Limiting Sovereign Immunity in the Age of Human Rights, 21 Harv. Hum. Rts. J. 105 at 110-111


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