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Genghis Khan and the Making of the Modern World Crown Publishing Group Weatherford, Jack Year: 2004 Language: english File: MOBI , 1.46 MB Your tags: 0 / 0

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Void: the strange physics of nothing Yale University Press Weatherall, James Owen Year: 2017 Language: english File: EPUB, 585 KB Your tags: 0 / 0

JUS COGENS

One of the most complex doctrines in contemporary international law, jus
cogens is the immediate product of the socialization of the international
community following the Second World War. However, the doctrine
resonates in a centuries-old legal tradition which constrains the dynamics
of voluntarism that characterize conventional international law. To reconcile this modern iteration of individual-oriented public order norms
with the traditionally State-based form of international law, Thomas
Weatherall applies the idea of a social contract to structure the analysis
of jus cogens into four areas: authority, sources, content, and enforcement.
The legal and political implications of this analysis give form to jus cogens
as the product of interrelation across an individual-oriented normative
framework, a State-based legal order, and values common to the international community as a whole.
thomas weatherall holds a J.D. from Georgetown University, a
Ph.D. in International Law from the University of Cambridge, an M.Sc.
in Global Governance and Diplomacy from the University of Oxford, and
a B.A. in International Studies from The Johns Hopkins University. This
book is based on the doctoral thesis completed by the author as an
International Scholar of the Cambridge Overseas Trust at the University
of Cambridge.

JUS COGENS
International Law and Social Contract

THOMAS WEATHERALL

University Printing House, Cambridge CB2 8BS, United Kingdom
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781107081765
© Thomas Weatherall 2015
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press; .
First published 2015
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication data
Weatherall, Thomas, author.
Jus cogens : international law and social contract / Thomas Weatherall.
pages cm
ISBN 978-1-107-08176-5 (Hardback)
1. Jus cogens (International law) I. Title.
KZ1261.W43 2015
3410 .1–dc23 2014043410
ISBN 978–1–107-08176-5 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of
URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.

CONTENTS

Foreword
ix
Acknowledgments
xviii
Table of cases
xx
Decisions of international courts and tribunals
Decisions of special tribunals
xxiii
Decisions of regional courts
xxiv
National court decisions
xxvi
Introduction
xxxvii
Overview
xlii

part i
1

2

The social contract

13

The authority of jus cogens

19

The interests of the international community

21

A

24

B
C

4

3

Peremptory norms of general international law (jus cogens)
Obligations erga omnes
8
The international law of responsibility
11

part ii
3

Peremptory norms of general international law
(jus cogens)
1

International law
A
B
C

xx

The international community of States as a whole
i ‘The international community’
24
ii ‘of States’
26
iii ‘as a whole’
28
Individual-oriented interests
29
The philosophy of human dignity
34

Human dignity as a general principle of law
A
B

Constitutional law
European Union law

44
48

v

41

3

vi

contents
C
D

5

The authority of jus cogens
A
B

C

6

Public international law
51
Peremptory norms of general international law (jus cogens)

7

C

D

Ancient law
111
The development of international law
114
The science of legal positivism
119
Jus cogens as public order in international law

Positive sources of international law
124
i Treaty law
125
ii Customary international law
126
iii General principles of law
129
Article 53 of the Vienna Convention
130
i Opinio juris sive necessitatis
136
ii State practice
144
iii Shortcomings of customary international law
A new source of international law
156
i Consent
156
ii Hierarchy
158
Judicial organs
162

Normativity and positivism: a reconciliation

part iv

Individual legal personality

107

121

124

152

175

Peremptory norms and the individual

Contemporary legal foundations
A

95

109

The formal source of peremptory norms

B

10

89

Material and formal sources of jus cogens

Historical antecedents

A

9

84

Expression of an international social contract

A
B
C
D

8

67

Human dignity as a moral concept
67
Morality and peremptory norms
71
i Travaux préparatoires
71
ii Jurisprudence
79
The expression of morality in jus cogens
i Non-derogation
86
ii Universality and normative hierarchy

part iii

54

185

185

183

vii

contents
B. The human rights movement
188
C. Individual responsibility in international law

11

The content of jus cogens
A

B
C

D

12

191

200

Identifying peremptory norms
200
i Piracy
205
ii Slavery
209
iii War crimes (serious violations of humanitarian law)
213
iv Crimes against humanity
219
v Aggression
223
vi Genocide
228
vii Torture
232
viii Apartheid (systematic racial discrimination)
236
ix Terrorism
241
Self-determination
250
The common heritage of mankind
253
i The high seas
255
ii Outer space, the moon and other celestial bodies
257
iii The Antarctic
258
iv The environment
259
v Cultural heritage
260
The right to life
264

Individual responsibility

266

A
B
C

Individual criminal responsibility
267
Individual civil responsibility
276
Immunities
285
i Immunity ratione personae
287
ii Immunity ratione materiae
299
D Amnesty
319
i Invalidation
322
ii Non-recognition
331

13

The form of jus cogens
A
B

The individual as the subject of peremptory norms
Social contract through historical exigencies
342

part v
14

339
339

349

Peremptory norms and the State

The enforcement of jus cogens: obligations erga omnes
A
B

Prevention and consequences for third-States
Protection and the use of force
363

355

351

viii

contents

C

15

State responsibility and jus cogens
A

B
C
D

16

C
D

384

409

The violation of peremptory norms
410
Breaches of obligations erga omnes arising from peremptory
norms
412
Consequences for breaches of obligations erga omnes
416
Individual and State responsibility
423

Realizing the international social contract

part vi
18

431

International law and social contract

Legal observations

Theoretical implications
A
B
C

20

447

Frameworks relevant to jus cogens
The social contract
452
Final remarks
456

Annex
Index

459
476

439

441

A An individual-oriented jus cogens
441
B. The State-based legal framework of peremptory norms

19

369

State responsibility for internationally wrongful acts
384
i International responsibility for breaches of obligations erga
omnes
384
ii International responsibility for violations of peremptory
norms
391
Dual responsibility
394
Standing before the International Court of Justice
398
Jurisdictional immunity of the State
402

An illustration: the Libya crisis
A
B

17

i The conservative position
365
ii The interventionist position
366
iii The hybrid position: ‘humanitarian self-defence’
Punishment and universal jurisdiction
371

447

444

FOREWORD

The history of political thought is marked by a constant tension between
the universal and the parochial. Ever since the formation of the first city
states, political organization was conceived of as a form of governance
focused on the self. But it was also defined in terms of governance free
from the other—free from control of those political organizations that
had formed themselves beyond the city walls.
True, among the Greek city states there was a sense of a broader
Hellenic identity. Large threats, such as Persian invasion, required the
otherwise bickering microstates of the Hellenic world to engage in
temporary alliances. But whatever united them, the Greek polis as an
individual unit was seen as the natural focus and principal or exclusive
unit of governance.1
Similarly, when Rome absorbed much of the Western world, it still
defined itself, its Roman core, in contrast to those barbarians to whom
the civilizing mission of the Empire was sadly denied.
However, throughout history, starting with the influential school of the
Stoa, this parochial view was of course balanced by the recognition of
common bonds of humanity. Just like the physical laws of nature that
apply equally everywhere on the globe or throughout the universe,
human characteristics were seen to exhibit similar, universal features that
make humans human. These could be inherent in human nature, such as
the will to survive, the capacity to love, or the need for a metaphysical
grounding of life and of the inexorable drive towards death consciously
experienced.
For some, shared humanity meant that there were also shared principles relating to rules of human conduct that apply universally. As
1

Aristotle famously noted that a state should only be as large as was necessary to fulfil its
function of security, a good life for its citizens, and not more than can be ‘taken in at a
single view’. Artistotle, The Politics 163 (Stephen Everson, ed., Cambridge University
Press 1988).

ix

x

foreword

Cicero observed, human laws would differ from community to community. However, true law, and justice, are universal and eternal:
But of all the things which are a subject of philosophical debate there is
nothing more worthwhile than clearly to understand that we are born for
justice and that justice is established not by opinion but by nature. That
will be clear if you examine the common bonds among human beings.
There is no similarity, no likeness of one thing to another, so great as the
likeness we all share.2

Cicero also laid the groundwork for subsequent natural law theory in
emphasizing that ‘True law is right reason, consonant with nature, spread
through all people.’3 Anticipating to an extent the discussion about
jus cogens, he added:
It is wrong to pass laws obviating this law; it is not permitted to abrogate
any of it; it cannot be totally repealed. We cannot be released from this
law by the senate or the people. . . . There will not be one law at Rome and
another at Athens, and now and another later, but all nations at all times
will be bound by this one eternal and unchangeable law.4

As natural law theory advanced from the period of scholasticism and the
Renaissance towards modernity, the manifestations of eternal rules of
human behaviour became more varied. Indeed, they are altogether too
varied to be summarized in a few short points. However, one might
perhaps roughly distinguish four types of natural law:
• There were those rules that flowed directly or indirectly from religious
text or precepts. It is divine will re-cast into mandatory rules of
conduct, into divine law. While these rules applied principally to the
circle of believers, some principles might also be applied to those who
had not yet been converted—a debate that erupted with particular
vigour in the context of the ‘discovery’ of the native population of the
Americas by Spain.
• There was the assumption that all human beings, made in the image of
God, share certain attributes, including in particular human dignity.
Hence, all human societies would similarly share common features.
Among them were the eternal principles of natural law. These could be

2

3

Marcus Tulius Cicero, On the Commonwealth and On the Laws 115 (James E. G.
Zetzel ed., Cambridge University Press 1999).
4
Id. at 71.
Id.

foreword

xi

identified through the application of right reason by those capable of
applying reason right.
• Referring back to Roman law, there was also reference to a more
positive expression of these principles, through the concept of jus
gentium. These were voluntary or necessary rules shared by the civilized in-group (Rome) and the barbarians outside of the civilizational
system of the empire.
• Finally, there was the jus inter gentes—international law. This could be
voluntary or contractarian law, or it could be natural law. The latter
assumed that states were collectivities of persons, and they would
therefore behave like natural persons. Hence, states, too, were subject
to the natural rules that necessarily govern any human society.
These different types of law shared a number of common characteristics.
First, as natural law was related to traits of human nature, and therefore
of human societies, it was pre-ordained or inherent. It could be discovered through biblical exegesis or the application of right reason, but it
did not need to be created through an act of will. It was necessary law,
rather than voluntary law.
Second, the principles of natural law were eternal, or at least as stable
as the perennial characteristics of human nature.
Third, natural law, being based in the universal reach of God or the
universally shared characteristics of human beings, applied universally.
This could be true universality, applying to all human beings. Or there
could be relative universality, extending to those seen to be part of the
community of mankind, but excluding others. In previous ages this might
for instance have excluded women, slaves, or in some respects the infidels.
Fourth, natural law principles applied directly to the conduct of
individuals, whether acting for themselves, or as agents of a social
organization including the state. Natural law was therefore perfect law
in itself, rather than a pre-cursor of law. No additional step was necessary
to enact natural law to render it binding.
Fifth, the content of natural law tended to be dominated by values.
Natural law generally aimed at a perfecting society, a social organization
arranged according to universal core values that would channel human
conduct towards ethically and socially desirable ends.
When Jean Bodin proclaimed the principle of state sovereignty in his
Six livres de la republique of 1576, this did not spell the end of natural
law. Instead, natural law theories and approaches coexisted with the
increasing emphasis on voluntary law, as is most famously evident in

xii

foreword

the work of Hugo Grotius.5 Universal values that could command the
force of law without positive enactment persisted. This included values
relating to the worth and dignity of the human person. Indeed, the
communitarian vision of a civitas maxima found its high point in the
writings of Christian Wolff, reaching well into the ‘Westphalian age’. His
Grundsaetze des Natur- und Voelkerrchts appeared in 1754. He postulated that the obligatio universalis ‘connects all human beings as they are
human beings. General law (jus universale) flows from this and consists
of that which is owed to all human beings, because they are human
beings.’6
However, only four years after the appearance of Wolff’s book, Emer
de Vattel published his own text on the Laws of Nations or the Principles
of Natural Law. Vattel accepted that there existed a natural law of
nations, or a necessary law of nations. Nevertheless, he expressly opposed
Wolff’s vision of a civitas maxima united under one law. Instead, in
substantive terms, Vattel’s treatise emphasized the voluntary law of
nations. He argued that nations were born free and equal, and endowed
with the fullest freedom of action. So long as they had not voluntarily
submitted to other men or other nations, they ‘remain absolutely free and
independent’.7
Vattel is generally seen as the harbinger of unrestrained positivism—as
the man who broke the common bond of mankind and helped bury the
remnants of what had been an unbroken adherence to universalism and
natural law argument since antiquity.8 And yet he accepted that the
voluntary law of nations was circumscribed by natural law. Hence, there
was a distinction between ‘lawful and unlawful treaties or conventions
and between customs which are innocent and reasonable and which are
unjust and deserving of condemnation’.9 States would only be ‘permitted’
by the necessary law of nations to conclude agreements or establish rules
of customary law that complied with the necessary law of nations.10
While Vattel acknowledged that individuals had formed themselves into
5

6

7

8
9

Hugo Grotius, De Jure Belli ac Pacis Libri Tres (James B. Scott ed., Francis Kelsey
trans., 1925) (1646).
Christian Wolff, Grundsaetze des Natur-und Voelkerrechts 43 (1754) translation
by author.
Emer de Vattel, Le Droit des gens, ou, Principes de la loi naturelle appliqués a la
conduite et aux affaires des nations er des souverains 3 (James B. Scott ed.,
Charles G. Ferwick trans., 1916) (1797).
Phillip Allott, Josephine Onoh Memerial Lecture (Hull University Press 1989).
10
Ibid. at 4.
Ibid.

foreword

xiii

sovereign states, he did not accept that this process had broken the bonds
of common humanity. He asserted that ‘no convention or special agreement can release’ man from the duty to comply with the requirements of
the ‘universal society of the human race’.11
It is true though that the subsequent turn towards positivism emphasized state sovereignty at the expense of the recognition of the individual
as a holder of rights at the international level. The rights of individuals
were increasingly submerged within the metaphysical person of the state.
The state was no longer seen as being embedded in a naturalist legal
order circumscribing its competences and conduct. Instead of universal
rules, international law could increasingly only reach as far as the consent
of individual states would carry it.
It was only after World War II and the horrors visited upon countless
populations that the concept of human dignity as a principle of law
started to surface again. And, it took the hard slog of establishing human
rights in positive law to give meaning to the ‘elementary principles of
humanity’ that had been boldly proclaimed by the International Court of
Justice in 1949.12 That hard slog during the years of ideological division
of the Cold War commenced with the adoption of the Universal Declaration of Human Rights in 1948, and reached its zenith with the entry into
force of the ‘Bill’ of Human Rights of the two UN Covenants in 1976. The
UN Declaration, and with it the Bill of Rights, were clearly dedicated to
the universal protection of human dignity.
The end of the Cold War was celebrated in human rights terms with
the 1993 Vienna World Conference on Human Rights. The conference
was somewhat side-tracked by the attempt of some Asian and developing
states to argue that human rights were not, after all, fully universal, but in
fact, subject to what was called ‘national particularities’. However, in the
end, the Conference adopted a Declaration which confirmed, in its
opening Article, that ‘the universal nature of these rights and freedoms
is beyond question’.13 The Preamble echoed the wording of the Universal
Declaration, confirming that ‘all human rights derive from the dignity
and worth inherent in the human person, and that the human person is
the central subject of human rights and fundamental freedoms’.
11
12

13

Ibid. at 5.
The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v.
Albania), Judgment, ICJ Reports 1949, p. 4) 22.
The World Conference on Human Rights, Vienna Declaration and Programme of
Action, adopted 25 June 1993.

xiv

foreword

Arguably, at this point the legal community of mankind had returned to
a fully universal belief in common characteristics of human beings. That
belief supported the claim of universal rights and fundamental freedoms—
a claim directly based on the inherent dignity of the human person.
By this time, the international legal system had undergone a number of
structural developments. The International Court of Justice had recognized since 1970 that there exist legal obligations owed to the international community as a whole.14 These ‘erga omnes’ obligations give
all states a legal interest in the performance of key obligations of international constitutional standing by all other states.
In addition, the 1969 Vienna Convention on the Law of Treaties had
recognized the doctrine of jus cogens. A rule of jus cogens, or a peremptory norm of general international law, was defined as:
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.15

Hence, states cannot exempt themselves from having to comply with
rules of jus cogens, which require compliance under all circumstances. In
addition, the Articles on State Responsibility put forward by the International Law Commission introduced the concept of serious violations of
peremptory norms (jus cogens). Such serious violations would trigger an
obligation by all other states not to recognize the outcome of the transgression, not to assist the offender in keeping it in place, and to cooperate
with a view to overturning it.16 Moreover, under the doctrine of universal
criminal jurisdiction, the commissioning of such violations might trigger
individual criminal responsibility directly under international law.
In short, as rules of general international law, jus cogens rules are
universal. They must be complied with by all under all circumstances.
An infraction legally affects all other members of the organized international community as a whole. Indeed, they are legally obliged to

14

15

16

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, ICJ
Reports 1970, p. 3, 32.
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155
UNTS 331, Article 53 (entered into force 27 January 1980).
International Law Commission, Draft Articles on Responsibility of States for Intentionally Wrongful Acts, Report of the International Law Commission on the Work of its
Fifty-Third Session, [2001] II(2) YBILC 26 et seq., Articles 40–41.

xv

foreword

oppose serious violations. Moreover, individual perpetrators face criminal sanction.
It might be argued that the 19th and early 20th centuries something of
an aberration. They key elements of natural law doctrine described above
appear to have resurfaced:

Item

300 BC–late 18th
century

19th to mid 20th
century

Mid 20th century to
present

Reach

Universal

Universal

Made by

A priori, inherent
rule of natural law
Eternal

Binds only
consenting
states
Strict state
consent
Changes
frequently,
according to
changing
interests of
states

Stability of
the Rule

Substantive
Content
Applies to
Legal Effect

Transports values
All levels
Cannot be
contracted out of

Advances
interests
States only
Inferior to state
sovereignty

Universal consensus
Can change/expand if
a new rule is
recognized as a
rule of jus cogens
by the
international
community as a
whole
Transports values
States and individuals
Jus cogens, erga
omnes, etc.

The exact catalogue of jus cogens rules is subject to controversy. They are
generally believed to include the prohibition of the threat or use of force,
or of aggression, the prohibitions of slavery, genocide, ethnic cleansing,
apartheid, torture, crimes against humanity including sexual violence,
grave breaches of humanitarian law and fundamental human rights law.
Self-determination and the protection of diplomatic agents are also at
times proposed for inclusion in the list.
All of the items listed are focused on the protection of the human person
from acts of war or from grave abuse in times of peace. With the exception
of the final item, these protections apply to all persons. One might see in
this development the positive enactment of previous natural law thinking
at the international level. Alternatively, one might content oneself with the

xvi

foreword

observation that a minimum catalogue of legal rules for the protection of
the human person now enjoys the protection of the international legal
order as a matter of positive law, without the need to refer back to any
natural law roots connected with the idea of human dignity.
A third, and exciting, explanation is proposed in the present book.
This is the idea of a social contract as the source of, or explanation for,
the elevation of elementary human rights to the level of jus cogens. This
idea implies a global social compact made by humanity as such with a
view to safeguarding a common set of rights flowing directly from the
concept of human dignity shared by all.
Of course, the concept of the social contract has been put forward in a
number of different variants. To Hobbes, the social contract described
the process whereby individuals gave up all their rights in exchange for
protection from life in a brutal state of nature. An almighty state would
provide security, but demanded unquestioned obedience.
To Rousseau, the social contract offered an opportunity to secure
radically direct democratic governance. The individual would renounce
his or her autonomy and subject him or herself to the ‘general will’ of
society. Rather than denying their own identity by subjecting it to
majority governance, Rousseau thought that individuals can only fulfil
themselves through such action within a greater collective.
Rawls has proposed more recently that a social contract can aim to
establish greater social or material equality among individuals. In addition to security from one’s fellow human beings, to direct democracy or
to egalitarian aims, a fourth type of social contract was of course proposed by John Locke. According to Locke, human beings do not enter an
organized society with a view to abandoning all their rights, or to achieve
equality among all. Instead, the very essence of the social contract is that
individuals subscribe to societal organizations precisely because they
wish to see their rights protected by a central authority, and because
they wish to be able to accumulate unequal levels of wealth.
For Locke, pre-state societies were inherently unstable as all its
members enjoyed the power to enforce their own rights. Opting into the
state meant a certain loss of freedom on the part of individuals, but it also
meant that the organs of the state would now ensure stable and predictable relations with the society. In particular, individuals could be confident in their right to hold property and not to be arbitrarily deprived of it.
Locke’s conception was therefore not quite the same as modern
arguments concerning human rights. The struggles for human rights
and fundamental freedoms of the 19th century and the first half of the

foreword

xvii

20th century have led to a concept of human rights as a defence against
arbitrary and abusive action of the state. While Locke would also oppose
such action, his principal aim was to preserve and protect individuals
from arbitrary or violent action among themselves.
But can we see the operationalization of the concept of human dignity,
and the enshrinement of key human rights among the highest order rules
of the positive system of international law, as a modern form of social
contract? This view is certainly an attractive one from a number of angles.
Liberal international law scholars tend to focus on what happens
within states when considering how international law works. The idea
of the self-constituting of mankind through a global social contract, and
through invisible and highly complex global networking, seems consistent with such an approach.
Those interested in constructing a constitutional or public law view of
international law will also likely applaud this concept. Constitutions tend
to promote certain core values, and provide mechanisms to entrench and
privilege these within the legal system. The global social contract can help
explain this function at the international level.
The advance in social contract theory offered in this book must also
strike a chord with those who take a cosmopolitan view of the international system. The universal values they seek to defend can finally be
grounded in an act of positive will. As this is a general and universal will,
the global social contract theory helps cosmopolitans to extricate themselves from the allegation that they contribute to value-imperialism.
Finally, strictly positivist international lawyers, and international relations ‘realists’, can maintain that the state remains relevant and indeed
dominant within the international system. However, it is now impossible
to deny the reality of the existence of a concept of the organized international community ‘as a whole’. Social contract theory can help clarify the
somewhat murky identity of that concept. The international community
‘as a whole’ consists of all global constituents. They may often, or indeed,
mainly, continue to act through the medium of the state. However, increasingly, these constituencies will demand that states and other dominant
actors at the international level will deliver to them what they demand.
It is certain that this book will be received with great anticipation. This
is not only due to the recently revived interest in the doctrine of jus
cogens. The value of this splendid book lies in the originality of thought
and in the clarity and depth of the presentation by its author.
Marc Weller
Cambridge, England

ACKNOWLEDGMENTS

This book is based on my doctoral thesis completed at the University of
Cambridge in 2012 under the supervision of Professor Marc Weller. The
project was possible only through a great deal of support.
First and foremost, I owe the privilege of undertaking this project to
Professor Weller, who gave me the opportunity to study at Cambridge.
From the moment he took me on as his doctoral student, Professor
Weller remained confident in my ability to carry this project to fruition.
I also owe a debt of gratitude to those who were kind enough to read my
work at various stages of completion and provide commentary, most
notably Professors John Dunn, Mads Andenas, and Philip Allott. I also
wish to thank Judge Cançado-Trindade, who kindly met with me at The
Hague during the final stages of my doctoral studies.
I wish to thank my thesis examiners, James Crawford and Alexander
Orakhelashvili, for their genuine interest in seeing that this work might
make the greatest possible contribution to the study of jus cogens. I am
also grateful to the anonymous reviewers of this book, whose feedback
was invaluable in preparing it for publication.
During my time at Georgetown University, I benefited greatly from a
diversity of perspectives that influenced the contours of this work. In this
respect, Professors David Stewart, Don Wallace, and Michel Paradis
deserve special recognition; so too Judge Francis Allegra and Representative Eleanor Holmes Norton. Each had occasion to comment on
various topics related to this book, and I am grateful that their influences
have found expression at various points.
My three years in Cambridge were generously supported by the
Cambridge Overseas Trust, to which I am deeply grateful for making
my research possible. I must also thank King’s College for supporting me
in various ways throughout my time at Cambridge, and the Lauterpacht
Centre for International Law, which supported me as a research assistant.
The production of this book would not have been possible without the
expertise and professionalism of the team at Cambridge University Press.
xviii

acknowledgments

xix

Richard Woodham and David Mackenzie ensured that the book moved
smoothly through its various stages of production, and I thank them for
making that process a painless one. I am grateful to Maureen MacGlashan
for her meticulous compilation of the index, and to Jacqueline French for
her thorough copy-editing. Most of all, Elizabeth Spicer was instrumental
in shepherding my manuscript through its early stages at the Press, and
remained positive and encouraging throughout that process – I am
indebted to her for that support, without which this book might not exist.
Finally, I am grateful for my friends in Cambridge, especially Josh
Keeler, and the Cambridge University Cycling Club. I also wish to
recognize Dr Gleider Hernandez, who supervised my first course in
public international law at Oxford, and Mr G. H. L. LeMay, whose
tutorials at Worcester College will forever shape my intellectual endeavours. Lastly, I am grateful to the unending support and encouragement of
my dad Dr James Weatherall, my mom Kate, my sister Claire, and, of
course Emily.
Thomas Weatherall
Washington, D.C.

TABLE OF CASES

Decisions of international courts and tribunals
Permanent Court of International Justice (PCIJ)
The Case of the S.S. ‘Lotus’ (France v. Turkey), Judgment, 1927 PCIJ (ser. A) No. 10
(7 Sept.).
Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 PCIJ (ser. B) No. 15
(3 March).
Settlers of German Origin in Poland, Advisory Opinion, 1923 PCIJ (ser. B) No. 6
(10 Sept.).

International Court of Justice (ICJ)
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403.
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Compensation, Judgment, ICJ Reports 2012, p. 324.
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Merits, Judgment, ICJ Reports 2010, p. 639.
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ
Reports 2007, p. 43.
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary
Objections, Judgment, ICJ Reports 1996, p. 595.
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional
Measures, Order of 8 April 1993, ICJ Reports 1993, p. 3.
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment,
ICJ Reports 2011, p. 70.
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), ICJ Reports 2006, p. 3.

xx

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xxi

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium),
Judgment, ICJ Reports 2002, p. 3.
Asylum Case (Colombia v. Peru), Judgment, ICJ Reports 1950, p. 266.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), ICJ Reports
1970, p. 3.
Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Reports 1985, p. 13.
The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v.
Albania), Judgment, ICJ Reports 1949, p. 4.
East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, p. 90.
Fisheries Case (United Kingdom v. Norway), Judgment, ICJ Reports 1951, p. 116.
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports 1997, p. 7.
Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgment,
ICJ Reports 2012, p. 99.
LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 466.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion, ICJ Reports 1971, p. 16.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, p. 136.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996,
p. 226.
Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June
1999, ICJ Reports 1999, p. 761.
Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures,
Order of 2 June 1999, ICJ Reports 1999, p. 916.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, p. 392.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, ICJ Reports 1986, p. 14.
North Sea Continental Shelf (Federal Republic of Germany v. Denmark / Federal
Republic of Germany v. Netherlands), Judgment, ICJ Reports 1969, p. 3.
Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), Judgment, ICJ Reports
1955, p. 4.
Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application
Instituting Proceedings, 24 April 2013.
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, ICJ Reports 2012, p. 422.
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Provisional Measures, Order of 28 May 2009, ICJ Reports 2009, p. 139.
Reservations to the Convention on the Prevention and Punishment of Genocide,
Advisory Opinion, ICJ Reports 1951, p. 15.

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table of cases

South West Africa Cases (Ethiopia v. South Africa / Liberia v. South Africa) (Second
Phase), Judgment, ICJ Reports 1966, p. 6.

International Centre for Settlement of Investment Disputes (ICSID)
Azurix Corporation v. Argentina, Decision on Application for Annulment, No. ARB/
01/12 (2009).
CMS Gas Transmission Company v. Argentina, Award, No. ARB/01/8, IIC 65 (2005).
Continental Casualty Company v. Argentina, Decision on Application for Partial
Annulment, No. ARB/03/9 (2011).
Phoenix Action Limited v. Czech Republic, Award, No. ARB/06/5 (2009).
Sempra Energy International v. Argentina, Decision on Argentina’s Application for
Annulment of the Award, No. ARB/02/16 (2010).

International Criminal Court (ICC)
Prosecutor v. Al Bashir, Decision on the Cooperation of the Democratic Republic of the
Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court, No. ICC-02/
05-01/09–195 (2014).
Prosecutor v. Al Bashir, Decision on the Prosecution’s Application for a Warrant of
Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05–01/09–3 (2009).
Prosecutor v. Al Bashir, First Warrant of Arrest, No. ICC-02/05–01/09–1 (2009).
Prosecutor v. Al Bashir, Second Decision on the Prosecution’s Application for a Warrant of
Arrest against Omar Hassan Ahmad Al Bashir, No. ICC-02/05–01/09–94 (2010).
Prosecutor v. Al Bashir, Second Warrant of Arrest, No. ICC-02/05–01/09–95 (2010).
Prosecutor v. Gaddafi et al., Decision to Terminate the Case against Muammar
Mohammed Abu Minyar Gaddafi, No. ICC-01/11–01/11–28 (2011).
Prosecutor v. Gbagbo, Decision on the Confirmation of Charges, No. ICC-02/11–01/11656 (2014).
Prosecutor v. Gbagbo, Decision Pursuant to Article 15 of the Rome Statute on the
Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire,
No. ICC-02/11–14 (2011).
Situation in the Libyan Arab Jamahiriya, Decision on the ‘Prosecutor’s Application
Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif AlIslam Gaddafi and Abdullah Al-Senussi’, No. ICC-01/11–01/11–1 (2011).
Situation in the Libyan Arab Jamahiriya, Warrants of Arrest in respect of Muammar
Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Nos. ICC-01/11–01/11–2,
ICC-01/11–01/11–3, ICC-01/11–01/11–4 (2011).

International Tribunal for the Law of the Sea (ITLOS)
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, Advisory Opinion (Seabed Disputes Chamber), Case No. 17
(2011).

table of cases

xxiii

Permanent Court of Arbitration (PCA)
Dispute Concerning Access to Information Under Article 9 of the OSPAR Convention
(Ireland v. United Kingdom), Final Award, 42 ILM 1118 (2003).

United Nations Human Rights Committee (UNHRC)
Wackenheim v. France, No. 854/1999, CCPR/C/75/D/854/1999 (2002).

United Nations Committee Against Torture (UNCAT)
Agiza v. Sweden, No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005).
M.B.B. v. Sweden, No. 104/1998, UN Doc. CAT/C/22/D/104/1998 (1999).
Tapia Paez v. Sweden, No. 39/1996, UN Doc. CAT/C/18/D/39/1996 (1997).

Decisions of special tribunals
International Criminal Tribunal for the former Yugoslavia (ICTY)
Prosecutor v. Aleksovski, Judgment, IT-95-14/1-T (1999).
Prosecutor v. Blaškić, Appeals Chamber Judgment, IT-95-14-A (1997).
Prosecutor v. Blaškić, Judgment on the Request of Croatia for Review of the Decision of
Trial Chamber II of 18 July 1997, IT-95–14-AR108bis (1997).
Prosecutor v. Brđanin, Judgment, IT-99-36-T (2004).
Prosecutor v. Delalić et al., Judgment, IT-96-21-T (1998).
Prosecutor v. Furundžija, Judgment, IT-95-17/1-T (1998).
Prosecutor v. Galić, Judgment, IT-98-29-T (2003).
Prosecutor v. Jelisić, Judgment, IT-95-10-T (1999).
Prosecutor v. Karadžić, Third Amended Indictment, IT-95-5/18-PT (2009).
Prosecutor v. Kristić, Judgment, IT-98-33-T (2001).
Prosecutor v. Kupreškić, Judgment, IT-95-16-T (2000).
Prosecutor v. Kunarac et al., Judgment, IT-96-23-T & IT-96-23/1-T (2001).
Prosecutor v. Nikolić, Decision on Interlocutory Appeal Concerning Legality of Arrest,
Appeals Chamber Judgment, IT-94-2-AR73, (2003).
Prosecutor v. Popović et al., Judgment, IT-05-88-T (2010).
Prosecutor v. Simić, Judgment, IT-95-9/2-S (2002).
Prosecutor v. Tadić, Appeals Chamber Judgment, IT-94-1-A (1999).
Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, IT-94-1-A (1995).
Prosecutor v. Tadić, Opinion and Judgment, IT-94-1-T (1997).

International Criminal Tribunal for Rwanda (ICTR)
Prosecutor v. Akayesu, Judgment, ICTR-96-4-T (1998).
Prosecutor v. Bikindi, Judgment, ICTR-01-72-T (2008).

xxiv

table of cases

Prosecutor v. Kambanda, Judgment and Sentence, ICTR-97–23-S (1998).
Prosecutor v. Kayishema and Ruzindana, ICTR-95–1-T (1999).
Prosecutor v. Setako, Judgment and Sentence, ICTR-04–81-T (2010).

International Military Tribunal at Nuremberg (IMT)
United States v. List et al. (The Hostage Case), in 11 Trials of War Criminals before the
Nuernberg Military Tribunals under Control Council Law No. 10 759 (Washington:
GPO 1950).
Nazi Conspiracy and Aggression, Opinion and Judgment, International Military
Tribunal at Nuremberg (1946).

Special Court for Sierra Leone (SCSL)
Prosecutor v. Fofana and Kondewa, Judgment, SCSL-04-14-J (2007).
Prosecutor v. Gbao, Decision on Preliminary Motion on the Invalidity of the Agreement
between the United Nations and the Government of Sierra Leone on the
Establishment of the Special Court for Sierra Leone, SCSL-04-15-PT-141 (2004).
Prosecutor v. Kallon and Kamara, Decision on Challenge to Jurisdiction: Lomé Accord
Amnesty, SCSL-04-15-PT-060-I (2004).
Prosecutor v. Kondewa, Decision on Lack of Jurisdiction/Abuse of Process, Amnesty
Provided by the Lomé Accord, SCSL-04-14-T-128-7347 (2004).
Prosecutor v. Sesay et al., Judgment, SCSL-04-15-T (2009).
Prosecutor v. Norman et al., Judgment, SCSL-04-14-T (2007).
Prosecutor v. Taylor, Decision on Immunity from Jurisdiction, No. SCSL-03-01-I-059
(2004).
Prosecutor v. Taylor, Judgment, SCSL-03-01-T-1283 (2012).

Special Tribunal for Lebanon (STL)
Prosecutor v. Ayyash et al., No. STL-11-01/I/AC/R17bis, Interlocutory Decision on the
Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative
Charging, 145 ILR 232 (2011).

Decisions of regional courts
African Commission of Human and Peoples’ Rights (ACHPR)
Modise v. Botswana, Comm. No. 97/93, 2000 AHRLR 25 (1996).

African Court of Human and Peoples’ Rights (ACtPHR)
African Commission on Human and Peoples’ Rights v. Great Socialist People’s Libyan
Arab Jamahiriya, Order for Provisional Measures, Application No. 004/2011 (2011).

table of cases

xxv

European Court of Human Rights (ECtHR)
A. v. United Kingdom, No. 25599/94 (1998).
Ahmed v. Austria, No. 25964/94 (1996).
Al-Adsani v. United Kingdom, No. 35763/97 (2001).
Chahal v. United Kingdom, No. 22414/93 (1996).
Demir and Baykara v. Turkey, No. 34503/97 (2008).
Jones v. United Kingdom, Nos. 34356/06 & 40528/06 (2014).
Kalogeropoulou and Others v. Greece and Germany, No. 59021/00 (2002).
Othman v. United Kingdom, No. 8139/09 (2012).
Ould Dah v. France, No. 13113/03 (2009).
Soering v. United Kingdom, No. 14038/88 (1989).
S.W. v. United Kingdom / C.R. v. United Kingdom, Nos. 20166/92 & 20190/92
(1995).
Z. and Others v. United Kingdom, No. 29392/95 (2001).

European Court of Justice (ECJ)
Kadi et al. v. Council of the European Union et al., C-402/05 P / C-415/05 P, [2008]
ECR I-6351 (2008).
Omega Spielhallen-und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der
Bundesstadt Bonn, C-36/02, [2004] ECR I-9609 (2004).

Inter-American Commission of Human Rights (IACHR)
Thomas v. United States, Case 12.240, Report No. 100/03 (2003).
Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87 (1987).
Domingues v. United States, Case 12.285, Report No. 62/02 (2002).
Romero y Galdámez v. El Salvador, Case 11.481, Report No. 37/00 (1999).

Inter-American Court of Human Rights (IACtHR)
Almonacid Arellano et al. v. Chile, Judgment, Series C No. 154 (2006).
Aloeboetoe et al. v. Suriname, Judgment, Series C No. 15 (1993).
Baldeón García v. Peru, Judgment, Series C No. 147 (2006).
Barrios Altos Case, Judgment, Series C No. 75 (2001).
Bayarri v. Argentina, Judgment, Series C No. 187 (2008).
Brothers Gomez Paquiyauri v. Peru, Judgment, Series C No. 110 (2004).
Bueno Alves v. Argentina, Judgment, Series C No. 164 (2007).
Ceaser v. Trinidad and Tobago, Judgment, Series C No. 123 (2005).
Gelman v. Uruguay, Judgment, Series C No. 221 (2011).
Gomes-Lund et al. (Guerrilha do Araguaia) v. Brazil, Judgment, Series C No. 219
(2010).

xxvi

table of cases

The Juridical Condition and the Rights of Undocumented Migrants, Advisory Opinion,
OC-18/03, Series A No. 18 (2003).
La Cantuta v. Peru, Judgment, Series C No. 162 (2006).
Miguel Castro-Castro Prison v. Peru, Judgment, Series C No. 160 (2006).
Ramírez v. Guatemala, Judgment, Series C No. 126 (2005).
Servellón García and ors v. Honduras, Judgment, Series C No. 152 (2006).
Tibi v. Ecuador, Judgment, Series C No. 114 (2004).
Velásquez-Rodríguez v. Honduras, Judgment, Series C No. 4 (1988).
Ximenes-Lopes v. Brazil, Judgment, Series C No. 149 (2006).
Yatama v. Nicaragua, Judgment, Series C No. 127 (2005).

National court decisions
Argentina
Chile v. Arancibia Clavel, Supreme Court of Justice (Argentina), A/533/XXXVIII, ILDC
1082 (2004).
Office of the Prosecutor v. Priebke, Supreme Court of Justice (Argentina), P/457/XXXI,
ILDC 1599 (1995).
Riveros v. Office of the Public Prosecutor, Supreme Court of Justice (Argentina), M/
2333/XLII, ILDC 1084 (2007).
Simón v. Office of the Public Prosecutor, Supreme Court of Justice (Argentina), S/1767/
XXXVIII, ILDC 579 (2005).
Washington Cabrera J. E. c. Comisión Técnica Mixta de Salto Grande, Supreme Court of
Justice (Argentina), Fallas 1993-305-2150 (1983).

Australia
Habib v. Australia, Federal Court of Australia, [2010] FCAFC 12, ILDC 1518
(2010).
Nulyarimma and Others v. Thompson / Buzzacott v. Minister for the Environment and
Others, Federal Court of Australia, [1999] FCA 1192, 120 ILR 353 (1999).
R. v. Tang, High Court of Australia, [2008] HCA 39 (2008).
Zhang v. Zemin, New South Wales Court of Appeal (Australia), [2010] NSWCA 255
(2010).

Austria
A.A. v. Austria, Supreme Court (Austria), No. 1Ob225/07f (2008).
Anita W. v. John Adam II (Prince of Liechtenstein), Supreme Court (Austria), No.
7Ob316/00x, ILDC 1 (2001).
Decision No. 11Os139/98, Supreme Court (Austria) (1998).

table of cases

xxvii

Belgium
Jugoslovenski Aerotransport v. Belgium, Court of Appeal (Bruxelles) (Belgium), No.
1998/KR/528 (1999).
R.D. v. Belgium, Court of Cassation (Belgium), No. P.04.1211.N, JT 2005, 322, ILDC 6
(2004).
Re Sharon and Yaron, Court of Cassation (Belgium), No. P.02.1139.F/2, JT 2003, 243,
ILDC 5 (2003); Court of Appeal (Bruxelles), 127 ILR 110 (2002).
Société Anonyme des Chemins de Fer Liégeois-Luxembourgeois v. The Netherlands,
Supreme Court (Belgium), Pasicrisie Belge, I, p. 294 (1903).

Bosnia and Herzegovina
Prosecutor’s Office v. Anić, Court of Bosnia and Herzegovina (Section I for War
Crimes), S1 1 K 005596 11 Kro, ILDC 1907 (2011).

Canada
Bouzari v. Islamic Republic of Iran, Court of Appeal for Ontario (Canada), 71 OR (3d)
675 (2004).
R. v. Finta, Supreme Court (Canada), [1994] 1 SCR 701 (1994).
R. v. Munyaneza, Montreal Superior Court (Criminal Division) (Canada), [2009]
QCCS 2201 (2009).
Suresh v. Canada (Minister of Citizenship and Immigration), Supreme Court (Canada),
[2002] 1 SCR 3 (2002).
Victoria (City) v. Adams, Supreme Court of British Columbia (Canada), [2008] BCSC
1363 (2008).
Zrig v. Canada (Minister of Citizenship and Immigration), Federal Court of Appeal
(Canada), [2003] FCA 178, [2003] 3 F.C. 761 (2003).

Chile
Peru v. Chile, Supreme Court (Chile), No. 2242-06, ILDC 1443 (2007).
Re Víctor Raúl Pinto v. Relatives of Tomás Rojas, Supreme Court (Chile), Decision on
Annulment, No. 3125-04, ILDC 1093 (2007).

Colombia
Constitutional Case No. C-225/95, Constitutional Court (Colombia), No. C-225/95
(1995).
Gallón Giraldo y Otros v. Colombia, Constitutional Court (Colombia), No. C-370/2006,
ILDC 660 (2006).

xxviii

table of cases

Review of the Constitutionality of the Rome Statute of the International Criminal Court,
Constitutional Court (Colombia), No. C-578/2002 (2002).
Segovia Massacre Case, Supreme Court of Justice (Colombia), No. 156 (2010)
(reproduced in Gomes-Lund et al. (Guerrilha do Araguaia) v. Brazil, IACtHR Series
C No. 219 (2010)).

Czech Republic
Novotný v. Ministry of Justice, Constitutional Court of the Czech Republic, No. I ÚS
601/04, ILDC 990 (2007).

France
AFP and PLO v. Alstom and Veolia, Versailles Court of Appeal (France), No. 11-05331,
52 ILM 1161 (2013).
Bucheron v. Germany, Court of Cassation (France), No. 02-45961, Bull. Civ., 2003, I,
No. 258 (2003).
Ely Ould Dah Case, Gard Assizes Court (France), No. 70/05 (Arrêt de condamnation) /
No. 71/05 (Arrêt statuant sur les intérêts civils) (2005).
Gaddafi Case, Paris Court of Appeal (Chambre d’accusation) (France), RGDIP 1999, p.
464 (2000), Court of Cassation (Criminal Chamber), RGDIP 2001, p. 473 (2001),
152 ILR 490.
Lydienne X v. Prosecutor, Court of Cassation (Criminal Chamber) (France), No. 1281676, ILDC 2035 (2013).
Réunion Aérienne v. Socialist People’s Libyan Arab Jamahiriya, Court of Cassation
(Civil Chamber I) (France), No. 09-14743, 150 ILR 630 (2011).
Rwanda Genocide Case, Court of Cassation (Criminal Division) (France), No. 96-82491
(1998).
Spanish Government v. Lambege et Pujol, Court of Cassation (France), D. 1849 1 (1849).

Germany
Attorney of the Federal Armed Forces v. Anonymous (a Major of the Armed Forces),
Federal Administrative Court (Germany), 2 WD 12:04, ILDC 483 (2005).
East German Expropriation Case, Mr von der M, BVerfG [Constitutional Court]
(Germany), 2 BvR 955/00, ILDC 66 (2004).
Former Syrian Ambassador to the German Democratic Republic, BVerfG
[Constitutional Court] (Germany), 2 BvR 1516/96, 115 ILR 596 (1997).
Jorgic Case, BVerfG [Constitutional Court] (Germany), 2 BvR 1290/99, ILDC 132
(2000).
Proceedings on the Constitutionality of §211 of the Criminal Code (Life Imprisonment
Case), BVerfG [Constitutional Court] (Germany), 45 BVerfGE 187 (1977).

table of cases

xxix

Greece
Margellos and Others v. Federal Republic of Germany, Special Supreme Court (Anotato
Eidiko Dikastirio) (Greece), No. 6/2002, 129 ILR 525 (2007).
Prefecture of Voiotia v. Federal Republic of Germany (Distomo Massacre Case), Court of
Cassation (Areios Pagos) (Greece), No. 11/2000, 129 ILR 513 (2000).

Guatemala
Guatemala Genocide Case, Constitutional Court (Guatemala), No. 3380-2007 (2007).

Hong Kong (China)
C v. Director of Immigration, Court of First Instance (Hong Kong), HCAL 132/2006,
[2008] 2 HKC 165, ILDC 1119 (2008).
C, KMF and BF v. Director of Immigration and Secretary for Security, Court of Final
Instance (Hong Kong), FACV Nos. 18/19/20 2011 (2013).

Israel
Attorney-General (Israel) v. Eichmann, Supreme Court (Israel), 36 ILR 5 (1962).

Italy
Ferrini v. Germany, Court of Cassation (Civil Section) (Italy), No. 5044/2004, ILDC 19
(2004).
Frascà v. Germany and Giachini (Guardian of Priebke) and Italy (joining), Court of
Cassation (Italy), No. 4284/2013, ILDC 1998 (2013).
Germany v. De Guglielmi et al., Court of Appeal (Italy), No. 941/2012, ILDC 1905
(2012).
Germany v. Mantelli and ors, Court of Cassation (Italy), No. 14201/2008, ILDC 1037
(2008).
Germany v. Milde, Court of Cassation (First Criminal Section) (Italy), No. 1072/2009,
ILDC 1224 (2009).
Italy v. Abdelaziz and ors, Court of Cassation (First Criminal Section) (Italy), No. 1072,
ILDC 559 (2007).
Lozano v. Italy, Court of Cassation (First Criminal Section) (Italy), No. 31171/2008,
ILDC 1085 (2008).
Military Prosecutor v. Albers, Court of Cassation (First Criminal Section) (Italy),
No. 32139/2012, ILDC 1921 (2012).

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table of cases
Kenya

Kenya v. Aid Mohamed Ahmed et al., Chief Magistrate Court (Kenya), CR 3486/2008
(2008).
Kenya Section of the International Commission of Jurists v. Attorney General et al., High
Court (Kenya), [2011] eKLR, ILDC 1804 (2011).
R.M. v. Attorney General, High Court (Kenya), Civil Case 1351, AHRLR 256
(KeHC 2006), ILDC 699 (2006).
R. v. Abdirahnam Isse Mohamud et al., High Court (Kenya), CR 72/2011 (2011).

Latvia
Kariņš and ors v. Parliament of Latvia and Cabinet of Ministers of Latvia (Border
Treaty), Constitutional Court (Latvia), No. 2007–10–0102, ILDC 884 (2007).

Mexico
Decision on the Extradition of Ricardo Miguel Cavallo, Supreme Court (Mexico), No.
712/2003, 42 ILM 888 (2003).

Namibia
Minister of Defence v. Mwandinghi, High Court (Namibia), 1991 (1) SA 851 (Nm), 91
ILR 343 (1990), affirmed by Supreme Court (Namibia), 1992 (2) SA 355 (NmS), 91
ILR 35 (1991).

The Netherlands
Association of Lawyers for Peace (Vereniging van Juristen voor de Vrede) and ors v.
Netherlands, Supreme Court (Netherlands), LJN: AN8071, ILDC 152 (2004).
Bouterse Case, Amsterdam Court of Appeal (Netherlands), Nos. R 97/163/12 Sv &
R 97/176/12 Sv (2000), abrogated on other grounds by Bouterse Case, Supreme Court
(Netherlands), LJN: AB1471, ILDC 80 (2001).
Samanyolu Case, Rotterdam District Court (Netherlands), CR 10/600012-09 (2010).
Stichting Mothers of Srebrenica and ors v. Netherlands and United Nations, Supreme
Court (Netherlands), LJN: BW1999, ILDC 1760 (2012).

New Zealand
Attorney General v. Ahmed Zaoui and ors, Supreme Court (New Zealand), SC CIV 19/
2004, [2005] NZSC 38, ILDC 81 (2005).

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xxxi

Fang v. Jiang, High Court (New Zealand), CIV 2004-404-5843, [2007] NZAR 420,
ILDC 1226 (2006).
Mansouri-Rad v. Department of Labour, Refugee Status Appeals Authority (New
Zealand), No. 74665/03, [2005] NZAR 60, ILDC 217 (2005).

Peru
Case of Santiago Martín Rivas, Supreme Court (Constitutional and Social Chamber)
(Peru), No. 679-2005-PA/TC, ILDC 960 (2007).
Fujimori Case, Supreme Court (Specialized Criminal Law Chamber) (Peru), No. 192001 AV, ILDC 1516 (2009).
Rivera Lazo and ors, Superior Court (Third Criminal Chamber) (Peru), No. 28-2001,
ILDC 1887 (2010).

The Philippines
Muna et al. v. Romulo et al., Supreme Court (Philippines), GR No. 159618, ILDC 2059
(2011).

Poland
Natoniewski v. Germany, Supreme Court (Poland), No. IV CSK 465/09, 2010 Polish
Yearbook of International Law 299, ILDC 1996 (2010).

Russia
H. v. Prosecutor General Office, Supreme Court (Russia), N KAS06-129, ILDC 1361
(2006).

Seychelles
R. v. Mohamed Ahmed Dahir & Ten (10) Others, Supreme Court of Seychelles, CR 51/
2009 (2010).

Slovenia
A.A. v. Germany, Constitutional Court (Slovenia), Up-13/99-24 (2001).
Arbitration Agreement Opinion Procedure, Constitutional Court (Slovenia), Rm-1/0926, ILDC 1485 (2010).
One Third of the National Assembly Deputies, Constitutional Court (Slovenia), Rm-1/
00-29, ILDC 402 (2001).

xxxii

table of cases
South Africa

Azanian Peoples Organization (‘AZAPO’) and ors v. President of South Africa and ors,
Constitutional Court (South Africa), No. CCT 17/96, 1996 (4) SA 671 (CC), ILDC
648 (1996).
Azanian Peoples Organization and ors v. Truth and Reconciliation Commission and ors,
Cape Provincial Division of the Supreme Court (South Africa), 1996 (4) SA 562 (C)
(1996).
Kaunda v. President of South Africa and ors, Constitutional Court (South Africa), No.
CCT 23/04, 2005 (4) SA 235 (CC), ILDC 89 (2004).
Mthembu v. State, Supreme Court of Appeal (South Africa), No. 379/07, (2008) ZASCA
51, ILDC 958 (2008).
The State v. Walter Basson, Constitutional Court (South Africa), No. CCT 30/03, 2005
(1) SA 171 (CC) (2004).
Van Zyl and ors v. Government of South Africa and ors, North Gauteng High Court
(South Africa), No. 20320/02, [2005] ZAGPHC 70, ILDC 171 (2005).

South Korea
Yeo and ors v. Nippon Steel & Sumitomo Metal, High Court (South Korea), 2012 Na
44947, ILDC 2104 (2013).

Spain
Criminal Law Chamber of the Supreme Court et al. v. Garzón Real, Supreme Court
(Spain), No. 101/2012, ILDC 1855 (2012).
Decision (Auto) of the Full Penal Chamber Confirming Spanish Jurisdiction to
Investigate Crimes of Genocide and Terrorism Committed during the Chilean
Dictatorship, National Court (Audiencia Nacional) (Spain), No. 173/98, 119 ILR 331
(1998).
Decision (Auto) of the Full Penal Chamber Confirming Spanish Jurisdiction over the
Crimes of Genocide and Terrorism committed during the Argentine Dictatorship,
National Court (Audiencia Nacional) (Spain), No. 84/98 (1998).
Guatemala Genocide Case (Menchú Tumn and ors v. Two Guatemalan Government
Officials and Six Members of the Guatemalan Military), Constitutional Court
(Criminal Chamber) (Spain), No. 237/2005, ILDC 137 (2005).
Guatemala Genocide Case (Menchú Tumn and ors v. Two Guatemalan Government
Officials and Six Members of the Guatemalan Military), Constitutional Court
(Criminal Chamber) (Spain), No. 327/2003, 42 ILM 686 (2003).
Public Prosecutor’s Office and ors v. Scilingo Manzorro, National Court (Audiencia
Nacional) (Criminal Chamber) (Spain), No. 16/2005, ILDC 136 (2005).

table of cases

xxxiii

Sánchez and ors v. Gibson and ors, Supreme Court (Spain), No. 1240/2006, ILDC 993
(2006).
Scilingo Manzorro v. Spain, Supreme Court (Spain), No. 798/2007, ILDC 1430 (2007).

Switzerland
A. v. Federal Department of Economic Affairs, Federal Supreme Court (Switzerland),
No. 2A 783/2006, ILDC 1200 (2008).
A. (Kahled Nezzar) v. Office of the Attorney General, Federal Criminal Court
(Switzerland), No. BB.2011.140 (2012).
A. v. State Secretariat for Economic Affairs and Federal Department of Economic
Affairs, First Public Law Chamber (Switzerland), No. 1A 48/2007, ILDC 1201
(2008).
Nada v. State Secretariat for Economic Affairs and Federal Department of Economic
Affairs, Federal Supreme Court (Switzerland), No. 1A 45/2007, ILDC 461 (2007).

United Kingdom
A. and Others v. Secretary of State for the Home Department (No. 2), House of Lords
(UK), [2005] UKHL 71 (2005).
Campaign for Nuclear Disarmament v. Prime Minister of the United Kingdom and ors,
High Court of Justice (UK), [2002] EWHC 2777 (Admin.) (2002).
Jones v. Ministry of the Interior of Saudi Arabia and Lieutenant Colonel Abdul Aziz,
House of Lords (UK), [2006] UKHL 26 (2006).
K. v. Secretary of State for the Home Department, House of Lords (UK), [2006] UKHL
46 (2006).
Kuwait Airways Corporation v. Iraqi Airways Company, House of Lords (UK), [2002]
UKHL 19 (2002).
R. v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex parte Pinochet
Ugarte (No. 3), House of Lords (UK), [2000] 1 A.C. 147, 38 ILM 581 (1999).
R. v. Gul, [2012] EWCA Crim 280, 152 ILR 568 (2012).
R. (on the application of Al-Jedda) v. Secretary of State for Defence, House of Lords
(UK), [2007] UKHL 58 (2007).
R. (on the application of Al Rawi and ors) v. Secretary of State for Foreign and
Commonwealth Affairs et al., Court of Appeal (UK), [2006] EWCA Civ 1279 (2006).
R. (on the application of Al-Skeini and ors) v. Secretary of State for Defence, High Court
of Justice (UK), [2004] EWHC 2911 (Admin.) (2004).
R. (on the application of European Roma Rights Centre) v. Immigration Officer at
Prague Airport, House of Lords (UK), [2004] UKHL 55 (2004).
R. (on the application of Hilal Abdul-Razzaq Ali Al-Jedda) v. Secretary of State for
Defence, Court of Appeal (UK), [2006] EWCA Civ 327 (2006).

xxxiv

table of cases
United States

Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th Cir. 2012).
Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495 (SDNY 2005) rev’d and remanded sub nom.
Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009).
Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (SD Tex. 2009).
Al–Bihani v. Obama, 619 F.3d 1 (DC Cir. 2010).
Almog v. Arab Bank, PLC, 471 F. Supp. 2d 257 (EDNY 2007).
Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003) rev’d sub nom. Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004) and vacated, 374 F.3d 1384 (9th Cir. 2004).
Argentine Republic v. Amerada Hess Shipping Corp., 488 US 428 (1989).
Ashcroft v. Iqbal, 556 US 662 (2009).
Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999).
Belhas v. Ya’alon, 515 F.3d 1279 (DC Cir. 2008).
Bell Atlantic Corp. v. Twombly, 550 US 544 (2007).
Benas v. Baca, No. CV-00-11507 LGB (SHX), 2001 WL 485168 (CD Cal. 2001) aff’d, 30
F. App’x 753 (9th Cir. 2002).
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 US 388
(1971).
Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001).
Chuidian v. Philippine National Bank, 912 F.2d 1095 (9th Cir. 1990).
Committee of US Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (DC Cir. 1988).
Doe v. Saravia, 348 F. Supp. 2d 1112 (ED Cal. 2004).
Doe v. Qi, 349 F. Supp. 2d 1258 (ND Cal. 2004).
Doe I v. State of Israel, 400 F. Supp. 2d 86 (DDC 2005).
Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) on reh’g en banc sub nom. John Doe
I v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005).
Ewing v. California, 538 US 11 (2003)
Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980).
Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (DDC 1998).
Habyarimana v. Kagame, 696 F.3d 1029 (10th Cir. 2012) cert. denied, 133 S. Ct. 1607
(US 2013).
Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002).
Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244 (CD Cal. 1999) rev’d in part, 251
F.3d 1230 (9th Cir. 2001).
Hilton v. Guyot, 159 US 113 (1895).
In re Doe, 860 F.2d 40 (2nd Cir. 1988).
In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467
(9th Cir. 1994).
In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493
(9th Cir. 1992).
In re Islamic Republic of Iran Terrorism Litigation, 659 F. Supp. 2d 31 (DDC 2009).

table of cases

xxxv

In re South African Apartheid Litigation, 617 F. Supp. 2d 228 (SDNY 2009).
Institute of Cetacean Research v. Sea Shepherd Conservation Society, 725 F.3d 940 (9th
Cir. 2013).
Kadic v. Karadžić, 70 F.3d 232 (2nd Cir. 1995).
Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010) aff’d, 133 S. Ct. 1659
(US 2013).
Lafontant v. Aristide, 844 F.Supp. 128 (EDNY 1994).
Manoharan v. Rajapaksa, 845 F. Supp. 2d 260 (DDC 2012) aff’d, 711 F.3d 178 (DC Cir.
2013).
Matar v. Dichter, 563 F.3d 6 (2nd Cir. 2009).
Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (ND Ga. 2002).
The Paquete Habana, 175 US 677 (1900).
Princz v. Federal Republic of Germany, 26 F.3d 1166 (DC Cir. 1994).
Samantar v. Yousuf, 560 US 305 (2010).
Sampson v. Federal Republic of Germany, 250 F.3d 1145 (7th Cir. 2001).
Sandhu v. Burke, No. 97 CIV. 4608 (JGK), 2000 WL 191707 (SDNY 2000).
Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) on reh’g en banc, 550 F.3d 822
(9th Cir. 2008).
Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) cert. granted, judgment vacated sub
nom. Rio Tinto PLC v. Sarei, 133 S. Ct. 1995 (2013).
Schooner Exchange v. McFaddon, 11 US 116 (1812).
Siderman de Blake v. Argentina, 965 F 2d 699 (9th Cir. 1992).
Smith v. Libya, 101 F.3d 239 (2nd Cir. 1996).
Sosa v. Alvarez–Machain, 542 US 692 (2004).
Tachiona v. Mugabe, 169 F. Supp. 2d 259 (SDNY 2001) aff’d in part, rev’d in part and
remanded sub nom. Tachiona v. United States, 386 F.3d 205 (2nd Cir. 2004).
Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2007).
Tel–Oren v. Libyan Arab Republic, 726 F.2d 774 (DC Cir. 1984).
Trials of Major Bonnet and others for Piracy, 5 George I (1718), in 15 A Complete
Collection of State Trials and Proceedings for High Treason and
Other Crimes and Misdemeanors from the Earliest Period to the
Year 1783 (London: T. C. Hansard, Thomas Howell ed., 1819).
Underhill v. Hernandez, 168 US 250 (1897).
United States v. Dire, 680 F.3d 446 (4th Cir. 2012) cert. denied, 133 S. Ct. 982 (2013).
United States v. Hasan, 747 F. Supp. 2d 599 (ED Va. 2010) aff’d sub nom. United States
v. Dire, 680 F.3d 446 (4th Cir. 2012).
United States v. The La Jeune Eugenie, 26 F. Cas. 832 (CCD Mass. 1822).
United States v. Robins, 27 F. Cas. 825 (DSC 1799).
United States v. Smith, 18 US 153 (1820).
United States v. Yunis, 924 F.2d 1086 (DC Cir. 1991).
White v. Paulsen, 997 F. Supp. 1380 (ED Wash. 1998).

xxxvi

table of cases

Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).
Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004).
Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012) cert. denied, 134 S. Ct. 897 (US 2014).

Uruguay
Case of de Nibia Sabalsagaray Curutchet, Supreme Court of Justice (Uruguay), No. 365/
09 (2009).

Zimbabwe
Mann v. Republic of Equatorial Guinea, High Court (Zimbabwe), No. CA 507/07,
[2008] ZWHHC 1, 153 ILR 697 (2008).

INTRODUCTION

The concept of jus cogens had existed in international law for a long time,
even if in inchoate form. There were, however, profound differences of
opinion as to the reasons for its existence and the foundations on which it
rested; some based it on positive law, others on natural law, while yet others
attributed to it a higher or even divine origin. But on one point there was
general agreement – namely, that the concept of jus cogens expressed some
higher social need. In principle, all legal rules were equal; the very concept of
jus cogens, therefore, was a derogation from a fundamental legal principle.
Ultimately, it was more society and less the law itself which defined the
content of jus cogens.
–Excerpt from the 685th Meeting of the International Law Commission1

What does it mean for acts to be universally condemned as offensive to
the conscience of mankind? To issue global arrest warrants for atrocities
carried out against a civilian population? Or for the international community to use force to suppress violations of basic human dignity within
the borders of a recalcitrant State? Such actions, increasingly commonplace in contemporary international relations, are expressions of the twin
developments of a common morality of the international community and
its realization through a universal legal framework. These developments
are part and parcel of a regime of international ordre public that has
crystallized since the middle of the twentieth century, conceived in the
wake of the two world wars and increasingly deployed since the end of
the Cold War. This public order is evocative of a particular conceptualization of the international community that recasts the way in which
sovereignty functions in international law and politics.
The ordre public of international order has evolved through the corpus
of peremptory norms of general international law (jus cogens).
A peremptory norm is ‘accepted and recognized by the international
1

[1963] I YbILC 73, para. 4 (685th Meeting, statement by Mr Rosenne).

xxxvii

xxxviii

introduction

community of States as a whole as a norm from which no derogation is
permitted’. The legal category of jus cogens (compelling law) was codified
with the intent of establishing a public order in international law by
explicitly incorporating considerations of morality into norms that
cannot be modified by the conventional sources of international law.
The inviolable status of a peremptory norm is a feature of the subject
matter of the rule, rather than the legislative process through which it
was codified, and is therefore intrinsic to the norm itself. From peremptory norms arise obligations erga omnes (against all), duties of enforcement that extend to all States a general legal interest in their fulfilment.
Claims are increasingly voiced in support of a nascent actio popularis
(popular action) affording States the authority to respond to violations of
peremptory norms. Violations of peremptory norms are classified as
international crimes that give rise to individual criminal responsibility,
and the extension of sovereign immunity to shield such conduct from
prosecution has waned. Universal jurisdiction extends to all States the
legal capacity to prosecute such violations pursuant to a duty aut dedere
aut judicare (extradite or prosecute).
Of course, all of this represents a marked contrast to the distinctly
Statist tradition of international legal order that has defined the postWestphalian world since Vattel. After 1648, sovereignty endowed the
State with an almost metaphysical quality through which it became a
discrete, inviolable political entity in both its internal and its external
affairs. The international legal system personified States as legal persons,
sovereign individuals among purported equals, in a global arena shaped
by the dynamics of power politics. It is against this backdrop that the
legal philosophy of positivism adopted the law of nations, transforming
an order formerly rooted in natural law into the exclusive domain of the
sovereign State. Because international law came to be recognized as the
product of the explicit consent of the State and a manifestation of its
interests, it followed that international legal obligation could be undertaken only by the will of the State. This conceptualization dominated the
discourse of international law until 1945 and has since endured as the
traditional approach to international law.
In some ways, the post-1945 international public order can be cast as
an admonishment of the Westphalian system, a refutation of its political
philosophy and rejection of its legal structures. Violations of State sovereignty, where necessitated by the dictates of humanity, have been authorized time and again by the governance organs of the international
community. This runs against the Statist rejoinder that subjugation to

introduction

xxxix

international obligations under universal humanitarian law violates the
principle that the State cannot be legally compelled against its sovereign
will: that intervention, even in cases of grave humanitarian crisis, is
simultaneously a contravention of sovereignty, a breach of the principle
of non-intervention, and a violation of fundamental legal norms prohibiting the use of force. On the contrary a precedent has emerged
according to which State sovereignty is contingent upon respect for
fundamental norms of good governance, alongside the expectation that
grave violations of basic principles of humanity will be met with an
international response. This premise is reflected in the ‘responsibility to
protect’, a principle that has gained currency at the United Nations over
the past decade as a safeguard against mass atrocities. The peremptory
norms driving this evolution confer protections directly upon the individual, and in principle, accountability for their violation can be enforced
against whomever perpetrates them, wherever they occur. Recognition of
the individual as the recipient of rights and duties is a departure from an
international legal philosophy that admits the State as the sole subject of
law. State sovereignty, the fundamental ordering principle of the Westphalian system, can no longer be considered in isolation from the rule of
law and basic considerations of humanity.
To be sure, international law fundamentally remains a legal system
emanating from States, notwithstanding the stark contrast between the
post-Westphalian and post-world war legal orders. The goal of this book
is to reconcile the development of public order norms of jus cogens with
the traditionally State-based structure of international law. It will demonstrate that contemporary developments in international law are consistent with a positivist legal framework, a proposition that requires a
critical view of the concept of jus cogens to understand the way in which
peremptory norms develop and operate through the international
community.
Resolution of this tension resides in a Liberal approach to international
law and politics. The task reflects normative individualism, a deontological, individual-oriented perspective that maintains the fundamental
purpose of all law to be the good of the human being. It also appeals to
the school of international constitutionalism, which recognizes core
values common to the international community, admits basic rights
and duties that bind the State beyond the traditional requirement of
consent, and embraces extra-State legal interests and mechanisms.
Finally, a Liberal approach conceives of international public order as an
expression of cosmopolitanism, a progressive political theory that refers

xl

introduction

to the most basic and fundamental rights, moral in origin yet legal in
nature, which transcend the boundaries of the State and accrue to the
individual directly. According to this approach to international law, the
State is best understood as an instrument for the fulfilment of individual
wellbeing, a premise that casts sovereignty in a sense of basic responsibility rather than absolute unaccountability.
The proposition highlighted by this Liberal approach is that values
matter in international law. This position illuminates the key distinction
between the international law preceding the Second World War and a
contemporary international legal order, and links the present epoch of
international law with the classical tradition of the law of nations. While
such an acknowledgment requires moving beyond a strictly positivist
approach to international law and politics, it in no way amounts to a
rejection of positivism. Instead, considerations of morality have been
authoritatively incorporated into positive international law as peremptory norms of general international law. These fundamental norms are
very much in force as positive law and have been reaffirmed on a regular
basis: for example, in international condemnation of atrocities committed against the dignity of human beings in times of peace and war; in
global non-recognition of the effects of aggression, discrimination, and
violence against civilians; in multilateral responses by the international
community to prevent and suppress widespread violations of humanitarian norms; and by the prosecution of individuals before international
criminal courts and tribunals. While it is clear that a normative branch of
peremptory international law is recognized, accepted, and implemented
by the international community, what is far from obvious is how these
public order norms are formed or how they delineate legal subjects and
objects.
These legal issues confronting jus cogens are inexorably connected with
political questions of the most basic kind. While peremptory norms serve
the common interests of the international community of States as a
whole, interests in some way oriented in basic considerations of humanity, what remains to be explained is precisely how these considerations
are expressed as positive law. Peremptory norms, as a product of the
socialization of the post-war era, do not conform to the dynamics of State
voluntarism that characterize conventional international law. One way of
elucidating such a public order is through the idea of the social contract,
a political theory that for centuries has been employed to provide a
narrative for the social origin of fundamental political and legal structures. The appropriateness of the social contract underlies one early

introduction

xli

interpretation of jus cogens during its incorporation into international
law by the International Law Commission:
[M]embership of a community required the respect of certain rules. If that
were not so, society would remain in the condition of savagery described
by the phrase homo homini lupus, which had lasted until the First World
War and had prevailed almost unchallenged in the inter-war period. By
becoming members of the international society, States recognized the
existence of a minimum international order, which was none other than
jus cogens.2

The social contract is a theoretical construct that explains governance
structures as the product of the recognition of common rules, with
correlative duties, to protect the most basic common interests of a
community.
In the context of jus cogens, the idea of a social contract offers a
compelling narrative of the confluence of an individual-oriented normative structure, a State-based legal order, and values common to the
international community as a whole. Classical contractarianism is
designed to provide an explanation of the legitimacy of political authority
by accounting for the existence of civil society in terms of the interests of
the individual. It invokes the social contract as a device through which
elemental rights and duties are established in order to maximize individual wellbeing in the context of social coexistence. Consequently, the
social contract can be implemented to cognize the interplay of sources,
authority, content, and enforcement of the public order norms of civil
society. It should be noted, explicitly at the outset, that it is the relevant
aspects of law under consideration, and not the social contract itself, that
bear the conceptual weight of the issues in question. It is to this end that
contractarianism is employed as an ordering framework for this book: to
guide an examination of particular legal aspects of public order norms
that, in turn, expresses a political vision that reconciles the development
of an individual-oriented jus cogens within a State-based international
legal order.

2

[1966] I(1) YbILC 39, para. 40 (828th Meeting, statement by Mr Bartoš). See [1963]
I YbILC 76, para. 33 (685th Meeting, statement by Mr Bartoš) (‘the international public
order was merely the superstructure of the international community which resulted from
the evolution of international society. It was the minimum of rules of conduct necessary to
make orderly international relations possible’).

OVERVIEW

The jurisprudence of jus cogens reveals a range of unresolved substantive
and systemic issues. A contractarian assessment of these issues – applying elements of the social contract to frame an examination of jus cogens
– orients jus cogens in the familiar discourse of the social contract.
Ultimately, probing these discontents of jus cogens makes it possible to
conceive of peremptory norms with greater lucidity and, in turn, forge a
better understanding of international public order.
The first part of this book, Peremptory Norms of General International Law (Jus Cogens), presents the core concepts that will be relied
upon throughout the analysis. Chapter 1 introduces peremptory norms
of general international law (jus cogens), obligations erga omnes, and
international responsibility, which are elements of international law
necessary to understand the operation of peremptory norms. Next,
Chapter 2 discusses the theory of social contract and how the idea serves
as an ordering framework for the present analysis by drawing attention
to four principal areas of jus cogens: authority, sources, content, and
enforcement.
Part II of this book, The Authority of Jus Cogens, negotiates philosophical principle and legal practice to develop an explanation of the
authority of peremptory norms of international law. Chapter 3 confronts
the idea of authority through a critical assessment of the juridical construction the international community of States as a whole, that entity
which accepts and recognizes peremptory norms. History and practice
reveal that the interests of the international community, implicated by
the relations of States, are represented by the protection of human
dignity. Chapter 4 examines the distinct role of human dignity as a
general principle of law across four domains: domestic constitutional
law, European Union law, public international law, and jus cogens.
Chapter 5 applies the normative aspect of human dignity to account
for considerations of morality in the doctrine of peremptory norms,
ultimately leading to an explanation of the effect of morality in jus cogens.
xlii

overview

xliii

This part concludes with Chapter 6, which relates the authority of jus
cogens as a product of the interests of the international community to the
starting point of the theory of social contract.
Jurisprudence is the focus of Part III, Material and Formal Sources of
Jus Cogens, the aim of which is to elucidate the sources of peremptory
norms in international law. Chapter 7 examines historical considerations
relevant to understanding the normativity implicit in jus cogens as a
category of non-derogable norms in international law. In this context,
Chapter 8 considers the formal source of peremptory norms indicated by
Article 53 of the Vienna Convention and the way in which normativity is
formally incorporated into positive international law. Chapter 9 then
accesses the interplay of the material and formal sources of peremptory
norms to support an understanding by which normative elements akin to
the natural law tradition contribute to the emergence of jus cogens
through formal, positive sources of law in a way that resembles the
mechanics of the social contract.
Part IV, Peremptory Norms and the Individual, develops a substantive
conceptualization of the form of peremptory norms as they concern
rights and duties incumbent upon the individual. The part begins with
Chapter 10, which discusses the development of individual legal personality in international law, and the subsequent crystallization of individual
rights and duties in the international sphere. Against this backdrop, and
through application of the understanding of the formal source of peremptory norms developed in the previous part, Chapter 11 surveys the
material content of jus cogens to identify the peremptory norms accepted
and recognized by the international community of States as a whole.
Chapter 12 examines aspects of individual responsibility, both criminal
and civil, for violations of peremptory norms as the principal locus of
responsibility arising from jus cogens under international law, and also
considers the complicated erosion of sovereign immunity and amnesty in
the context of jus cogens violations. The final chapter of this part, Chapter
13, considers implications of the individual as the primary subject of
peremptory norms and the way in which the content of jus cogens reflects
the emergence of the social contract through historical exigencies.
Part V of this book, Peremptory Norms and the State, concerns the
legal effects of peremptory norms with respect to the State, an examination framed by obligations erga omnes arising from peremptory norms
and responsibility for their breach. Chapter 14 discusses the performance
of obligations erga omnes as the concept has evolved in contemporary
practice. This includes consideration of the consequences for breaches of

xliv

overview

these obligations and the way in which these effects reflect structures that
have emerged pursuant to the enforcement of peremptory norms. Chapter 15 then assesses the nature of State responsibility arising under jus
cogens and its divergence from that of the individual, characterized by the
principle of ‘dual responsibility’; it also considers the effect of the erga
omnes status of obligations for purposes of standing before the International Court of Justice, as well as the jurisdictional immunity of the
State before domestic courts in cases concerning State responsibility for
jus cogens violations. Chapter 16 consists of a case study of the crisis in
Libya, which illustrates how the legal regime of obligations erga omnes
arising from peremptory norms harmonizes with the governing institutions of the international community. Finally, Chapter 17 considers
how the enforcement of jus cogens through obligations erga omnes
reflects the operational elements of the social contract.
The conclusion of this book is Part VI, International Law and Social
Contract, which consolidates the findings of the previous chapters as they
concern the purpose of this book – to reconcile an individual-oriented
normative structure of public order with a State-based international legal
order. Chapter 18 discusses the legal observations that are the primary
focus of the book by reviewing understandings of the sources, authority,
content, and enforcement of jus cogens developed herein, and the way in
which the effects of peremptory norms occupy a coherent, State-based
legal order. Based on these legal findings, Chapter 19 considers the
broader theoretical implications of this book. This entails a summary of
academic frameworks related to jus cogens, a review of the way features of
jus cogens are consistent with the social contract, and an evaluation of
public order exhibiting characteristics of a social contract in international
law.*

* Chapter 20 provides an index surveying domestic jus cogens jurisprudence in greater detail
than permitted in the main text of the book.

PART I
Peremptory norms of general international law
(jus cogens)

The doctrine of jus cogens can be understood as the confluence of
international law and social contract. This part presents these core
concepts as referred to throughout this book. Chapter 1 consists of a
discussion of interrelated elements of international law – peremptory
norms of general international law (jus cogens), obligations erga omnes,
and the international law of responsibility – that give definition to jus
cogens. Chapter 2 provides an introduction to the theory of the social
contract and explains how the idea is applied to jus cogens to frame the
analysis of this book. The analysis of the elements of international law set
out in Chapter 1, in the parts of this book to follow, are guided by the
framework set out in Chapter 2.

1

1
International law

This book comes into contact with three interrelated areas of international law: peremptory norms of general international law (jus cogens),
obligations erga omnes, and the international law of responsibility. An
understanding of jus cogens requires consideration of each of these
convergent elements, and it serves to introduce them at the outset.

A Peremptory norms of general international law (jus cogens)
Translating from Latin to mean ‘compelling law’, the concept of jus
cogens is of Roman law origin, though the term itself only first arises in
nineteenth-century works regarding pandects.1 The principle of jus
cogens originates from the municipal law of obligations, with reference
to those particular rules and principles whose application cannot be
compromised by the will of parties to a contract.2 Formally, jus cogens
constitutes a form of public order by delineating the boundaries within
which positive law may be concluded.3 As a legal concept, the notion of
jus cogens is regarded to be universal: it is found in all major forms of
domestic legal order.4 The proposal to introduce a provision on jus
cogens into international law is found in the First Report on the Law of
Treaties by special rapporteur Hersch Lauterpacht. Lauterpacht, the
second of four special rapporteurs appointed by the International Law
1

2

3

4

Manfred Lachs, The Development and General Trends of International Law in our Time,
169 Recueil des Cours 202 (1980); Jerzy Sztucki, Jus Cogens and the Vienna
Convention on the Law of Treaties 6 (Vienna: Springer-Verlag 1974).
Egon Schwelb, Some Aspects of International Jus Cogens as Formulated by the International Law Commission, 61 American Journal of International Law 946, 948–9
(1967).
Alexander Orakhelashvili, Peremptory Norms in International Law 19 (Oxford
University Press, 2006).
Karen Parker & Lyn Beth Neylon, Jus Cogens: Compelling the Law of Human Rights, 12
Hastings International & Comparative Law Review 411, 423 (1989).

3

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jus cogens

Commission (ILC) on the matter, posited in 1953 that there must be
recognized boundaries beyond which the State may not conclude law:
It would thus appear that the test whether the object of the treaty is illegal
and whether the treaty is void for that reason is not inconsistency with
customary international law pure and simple, but inconsistency with such
overriding principles of international law which may be regarded as
constituting principles of international public policy (ordre international
public). These principles need not necessarily have crystallized in a clearly
accepted rule of law such as prohibition of piracy or of aggressive war.
They may be expressive of rules of international morality so cogent that
an international tribunal would consider them as forming part of those
principles of law generally recognized by civilized nations[.]5

The inception of a category of international law expressive of the higher
interests and values of the international community, one from which
conventional law could not deviate, is often contextualized as a reaction
to the excesses of unbridled State sovereignty that reached a zenith
during the Second World War.6 It represents a departure from theories
of international law that hold State practice to be the exclusive source of
international law.
The notion of international public policy was further developed during
the drafting of the law of treaties by the ILC. Gerald Fitzmaurice, the
third special rapporteur on the law of treaties, postulated that the establishment of such a category in international law necessarily gave rise to a
distinction between two classes of rules in international law, ‘those which
are mandatory and imperative in any circumstances (jus cogens) and
those (jus dispositivum) . . . the variation or modification of which under
an agreed régime is permissible’.7 Echoing the commentary by Lauterpacht, Fitzmaurice alluded to the normativity implicit in the material
content of jus cogens:
It is not possible – nor for the present purposes necessary – to state
exhaustively what are the rules of international law that have the character
of jus cogens, but a feature common to them, or to a great many of them,
evidently is that they involve not only legal rules but considerations of
morals and of international good order.8

5
6

7
8

Hersch Lauterpacht, First Report on the Law of Treaties, [1953] II YbILC 154–6, para. 4.
Mark Janis, The Nature of Jus Cogens, 3 Connecticut Journal of International Law
359, 362 (1987–8).
Gerald Fitzmaurice, Third Report on the Law of Treaties, [1958] II YbILC 40, para. 76.
Ibid., 40–1, para. 76 (Fitzmaurice distinguishes jus cogens from morals or good order not
incorporated as ‘an actual legal rule’).

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Humphrey Waldock, the fourth and final special rapporteur on the law of
treaties, similarly affirmed the notion of public order norms in international law:
Imperfect though the international legal order may be, the view that in the
last analysis there is no international public order – no rule from which
States cannot at their own free will contract out – has become increasingly
difficult to sustain.9

Although no explicit reference to ‘international public order’ was
included in the final draft of the law of treaties,10 its effect is manifest
in the establishment of a normative category of inviolable rules of such
importance to the international community that no derogation is permitted. Broad consensus in support of this conceptualization of jus
cogens among the drafters of the law of treaties is reflected in a statement
by the Soviet member of the ILC:
[T]here was no disagreement on the juridical nature of jus cogens. The
important point was that all members agreed on the practical issues that a
rule having the character of jus cogens was one from which States could
not contract out, and that such rules existed.11

The formal recognition of jus cogens in the law of treaties was therefore
conceived to have broad structural implications in international law.12
The category of jus cogens formally entered into international law in
Articles 53 and 64 of the Vienna Convention on the Law of Treaties
(1969),13 which establish the illegality of treaties conflicting with a
peremptory norm of general international law:
Article 53. Treaties conflicting with a peremptory norm of
general international law (‘jus cogens’)
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

9

10
11
12

13

Humphrey Waldock, Second Report on the Law of Treaties, [1963] II YbILC 52, para. 1
(noting that the limitation of the use of force and development of international criminal
law ‘presupposes the existence of an international public order containing rules having
the character of jus cogens’).
[1966] I(1) YbILC 38, para. 25 (828th Meeting, statement by Mr Tunkin).
[1963] I YbILC 76, para. 28 (685th Meeting, statement by Mr Tunkin) (emphasis added).
See, e.g., [1963] I YbILC 62–78 (683rd–686th Meetings); [1966] I(1) YbILC 36–41 (828th
Meeting).
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155
UNTS 331 (entered into force 27 Jan. 1980).

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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.
...

Article 64. Emergence of a new peremptory norm of
general international law (‘jus cogens’)
If a new peremptory norm of general international law emerges, any existing
treaty which is in conflict with that norm becomes void and terminates.14

The ‘Vienna Convention’ effects of peremptory norms are clear: a treaty
is null and void upon its conclusion that conflicts with a norm belonging
to jus cogens, and should a peremptory norm emerge with which a treaty
in force conflicts, that treaty ‘becomes void and terminates’. No treaty is
valid in international law that derogates from a peremptory norm.15
Although the Vienna Convention concerns the law of treaties and
binds only signatories – notwithstanding that its provisions are considered to be declaratory of customary international law16 – Article 53
reflected a concept with legal effect beyond the treaty context. As much
was indicated by the Chairman of the drafting committee at the first
session of the UN Conference on the Law of Treaties at Vienna in 1968:
The article expressed a reality by setting forth the consequences in the
realm of treaty law of the existence of rules of jus cogens. The existence of
such rules was beyond dispute. No jurist would deny that a treaty which
violated such rules as prohibition of the slave-trade was null and void.
Article 5[3], however, did not purport to deal with the whole broad
problem of the rule of jus cogens: its sole purpose was to set forth the
effect of those rules on treaties.17
14
15

16

17

Ibid., Articles 53 and 64.
See Fitzmaurice, Third Report, [1958] II YbILC 26, para. 2 (Article 16. Legality of the object
(general)) (‘It is essential to the validity of a treaty that it should be in conformity with or not
contravene, or that its execution should not involve an infraction of those principles and rules
of international law which are in the nature of jus cogens’); Waldock, Second Report, [1963] II
YbILC 52 (a treaty is void ‘if its object or its execution involves the infringement of a general
rule or principle of international law having the character of jus cogens’).
See, e.g., Restatement (Third) of Foreign Relations Law of the United States,
Introductory Note (1987) (quoting the US Department of State) (The Vienna Convention
‘is already generally recognized as the authoritative guide to current treaty law and
practice . . . codifying existing international law’).
United Nations Conference on the Law of Treaties, Vienna, 26 March – 24 May 1968,
A/CONF.39/11 (1969), First Session 295, para. 21 (statement by Mr Yasseen).

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The contemporary practice of international and domestic judicial organs,
to refer to Article 53 for any consideration of jus cogens, is consistent
with this view of a concept existing outside the treaty context.18 As the
best available textual guidance to jus cogens in international law, Article
53 provides the logical starting point from which to analyze the formal
source of peremptory norms.19 And, as the first codification of the
concept of jus cogens in international law, the travaux préparatoires of
Article 53 provides a rich resource documenting understandings of the
ILC during drafting, positions of governments present at the UN Conference on the Law of Treaties at Vienna, and the views of States ratifying
the Vienna Convention.
Since its codification in the law of treaties, the concept of jus cogens has
evolved dramatically.20 Although the first codified consequence of public
order norms in international law is to invalidate contrary law concluded
between States, there is virtually no instance in which Article 53 has been
invoked to invalidate a treaty.21 Moreover, in practice, peremptory norms
are violated by individual conduct rather than international agreements
between States. This suggests that the inclusion of a provision concerning
peremptory norms in the law of treaties was primarily structural: if
international law admits the existence of non-derogable norms that bind
18

19

20

21

See, e.g., Military Prosecutor v. Albers, Court of Cassation (Italy), No. 32139/2012, ILDC
1921, para. 2.3 (2012); Habib v. Australia, Federal Court of Australia, [2010] FCAFC 12,
para. 83, ILDC 1518 (2010); C v. Director of Immigration, Court of First Instance (Hong
Kong), HCAL 132/2006, [2008] 2 HKC 165, para. 77, ILDC 1119 (2008); A. v. Federal
Department of Economic Affairs, Federal Supreme Court (Switzerland), No. 2A 783/2006,
para. 8.1, ILDC 1200 (2008); Re Víctor Raúl Pinto v. Relatives of Tomás Rojas, Supreme
Court (Chile), Decision on Annulment, No. 3125-04, ILDC 1093, para. 32 (2007); Fang v.
Jiang, High Court (New Zealand), [2007] NZAR 420, para. 26 (2006); Jones v. Ministry of
the Interior of Saudi Arabia and Lieutenant Colonel Abdul Aziz, House of Lords (United
Kingdom) [2006] UKHL 26, 21, para. 42 (Hoffmann, L.) (2006); Suresh v. Canada
(Minister of Citizenship and Immigration), Supreme Court (Canada), 2002 SCC 1, para.
61 (2002); Prosecutor v. Kupreškić, IT-95-16-T, para. 520, note 771 (2000); Office of the
Prosecutor v. Priebke, Supreme Court (Argentina), P/457/XXXI, para. 70, ILDC 1599
(1995); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714–15 (9th Cir. 1992).
See, e.g., Vladimir Degan, Sources of International Law, 217–18 (The Hague: Martinus Nijhoff 1997) (‘The starting point of any discussion on jus cogens in general
international law is Article 53 of the 1969 Vienna Convention on the Law of Treaties’).
To suggest that jus cogens has merely been ‘[s]eized upon by idealists, who would extend
it beyond the narrow context of treaty making’, demonstrates unawareness of a depth of
jus cogens jurisprudence: Compare David Armstrong, Theo Farrell & Hélène Lambert,
International Law and International Relations 14–15 (Cambridge University
Press 2nd edn, 2012), with discussion infra, Chapter 8.D (Judicial Organs).
See discussion infra, Chapter 5.C.i (Non-Derogation).

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States apart from their consent, a fortiori, these norms cannot be abrogated by treaty agreements between States. The unilateral aspect of
peremptory norms, rather than the treaty dimension articulated in Article 53, has assumed the greatest practical importance,22 as illustrated by
jurisprudence of the International Court of Justice (ICJ).23

B

Obligations erga omnes

The concept of obligations erga omnes in international law is closely
related to jus cogens norms. Literally translating to mean ‘against all’, erga
omnes refers to an obligation owed by each State to the international
community as a whole.24 The doctrine of obligations erga omnes was first
articulated by the International Court of Justice in Barcelona Traction,
22

23

24

Orakhelashvili, Peremptory Norms in International Law 205–8; Andrea Bianchi,
Human Rights and the Magic of Jus Cogens, 19(3) European Journal of International Law 491, 495–6 (2008); Bruno Simma, From Bilateralism to Community
Interest in International Law, 250 Recueil des Cours 288 (1994); Theodor Meron,
Human Rights Law-Making in the United Nations 196–7 (Oxford: Clarendon Press
1986); Egon Schwelb, Some Aspects of International Jus Cogens as Formulated by the
International Law Commission, 61 American Journal of International Law 946, 955
(1967).
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, ICJ Reports 2012, p. 422, para. 99 (finding erga omnes obligations arising
from jus cogens prohibition of torture sufficient under Torture Convention to grant thirdState standing before the court); Jurisdictional Immunities of the State (Germany v. Italy:
Greece Intervening), Judgment, ICJ Reports 2012, p. 99, para. 93 (finding jus cogens
prohibitions of war crimes and slavery substantive rules with no impact on the procedural
rule of State immunity under customary international law); Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion, ICJ Reports 2010, p. 403, para. 81 (noting illegality of declarations of independence connected with ‘the unlawful use of force’, as among ‘egregious violations of norms
of general international law, in particular those of a peremptory character (jus cogens)’);
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43,
para. 161 (finding international responsibility of Serbia for breach of erga omnes obligations arising from ju