Jus Cogens and the French Experience
July 19, 2010
While the body of jus cogens law has become generally accepted to encompass human rights crimes, and not to permit sovereign exception, there remains much opposition to this expanding doctrine. It is therefore not surprising that universality is met with some resistance, and is seen by many as an unacceptable encroachment on national sovereignty qua territorial jurisdiction. This particularly seems to be the case among officials of the national governments themselves, who have a vested interest in the absolute notion of sovereignty. Nevertheless, there are many countries that are embracing aleadership role in this area of law, France being one of the most outspoken. France is unique among the countries of Western Europe in thoroughly embracing the growing role of jus cogens and the universality of jurisdiction that goes with it.
The representative of France challenged that claim during the plenary drafting session, expressing his government’s opposition to Article 53 “because it did not agree with the recognition that article gave to jus cogens,” while another government called jus cogens “still a highly controversial concept which raised the fundamental question of how to recognize the scope and content of a peremptory norm of general international law,” noting that time had revealed “a divergence of views since 1969 regarding the nature of norms of jus cogens, which it had not been possible to define.”
Indeed, the French have always been some of the strongest advocates for a robust principle of universality, perhaps because of their own national history. Indeed, the French experience with international human rights norms represents something of a microcosm of the “an opportunity to observe first hand the struggle with, and ultimate acceptance of, an international legal norm by a domestic legal order, and not just by courts, but by political elites as well.” Certainly, the French experience under Nazi occupation during World War II would seem to have given them a firsthand experience with violations of international law:
The French experience with the Nuremberg principles provides an extraordinary example of this thesis in action – an opportunity to observe first hand the struggle with, and ultimate acceptance of, an international legal norm by a domestic legal order, and not just by courts, but by political elites as well. It provides an opportunity to observe empirically what scholars have postulated as a matter or theory – how and why a nation comes to adopt and embrace a particular set of international legal rules, even rules that may appear contrary to self-interest, at least to some constituencies.
Perhaps there is a lesson here for the United States and other countries reluctant to embrace robust principles of universal jurisdiction.
Michael Akehurst, Jurisdiction in International Law (1974), reprinted in Jurisdiction in International Law 25 (W. Michael Reisman ed., 1999).
 Dinah Shelton, Normative Hierarchy in International Law, 100 A.J.I.L. 291.
 Leila Nadya Sadat, The Nuremberg Paradox, 58 Am. J. Comp. L. 151.