International Law and Jus Cogens

The 1986 Vienna Convention contains provisions concerning jus cogens.

In 1969, the ICJ did not embrace jus cogens in its legal analysis, but by 1986, it thoroughly embraced it and characterized the prohibition on the aggressive use of force as a 'conspicuous example of a rule in international law having the character of jus cogens'.

There is a polarity between jus cogens and State sovereignty, as jus cogens implies that certain norms exist that no State may deviate from, while State sovereignty implies that States have the authority to do as they wish.

The concept of jus cogens originates from Natural Law, implying that certain norms exist independently of State consent and bind States regardless of their agreement.

In such a scenario, the approval of torture by the community of nations would potentially override any Natural Law or divinity-based norm against torture, highlighting the tension between jus cogens and State sovereignty.

The tension between jus cogens and State sovereignty has impaired the hope of achieving widespread agreement on what norms constitute jus cogens.

Consent

From Natural Law to Positivism

It would produce an enforceable obligation to wage aggressive wars

A long-lasting and generally maligning effect

A middle ground

A serviceable blend of both naturalist's morality and positivist's common assent of sovereign nations

Where a decision maker or researcher may look to ascertain the substantive content or applicable law

To decide in accordance with international law such disputes as are submitted to it

International conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and teachings

It provides a list of sources for ascertaining the content of International Law

It failed to acknowledge their ever-changing nature.

They perceived these sources as reflecting the external policy of the ruling classes.

Treaties, customs, and general principles as primary sources, and judicial decisions and scholarly writings as subsidiary sources.

The provision that the listed sources were to be considered en ordre successif - in successive order.

Customary rules at the top, followed by treaties and then sources provided by agreements.

Pacta sunt servanda (good faith performance).

The Article's list of sources was incomplete and did not accurately reflect the complexities of international law.

They saw the sources as reflecting the external policy of the ruling classes and having Eurocentric roots.

The treaty between Hitler and Stalin to divide Europe, conflicting with the customary rule against aggression.

As the most fundamental source of International Law.

Treaties can supersede customary law, and states are free to conclude treaties that depart from customary law.

Duration or passage of time, substantial uniformity or consistency of usage, generality of the practice, and opinio juris et necessitatis.

The case authoritatively analyzed the requisite international consensus for opinio juris to render a custom binding.

Treaties impose additional and different obligations, limit existing freedom and sovereign rights, and change the applicable norms.

Custom is a primary source for determining the content of International Law when there are no treaties.

It is necessary to research the actual practice of states to determine whether enough of them expect the practice to be applied.

The fourth element, opinio juris et necessitatis, is the most important and difficult to authenticate.

States must feel that they are conforming to what amounts to a legal obligation.

Treaties can depart from customary law, and can change the legal relations between participating states.

Customary International Law provides a rich and diverse source of international obligations.

The complexity arises from the dual process of determining both where to find evidence of the custom's existence and when it becomes obligatory.

To determine the lawfulness of military seizures of foreign vessels

It indicates the vessel's regular engagement in fishing on the coast of Cuba.

The seizure of the coastal fishing vessels was upheld.

An ancient usage among civilized nations, ripening into a rule of international law, recognizes coastal fishing vessels as exempt from capture.

The Court traced the history of the rule exempting coastal fishers from capture to establish its final establishment in the United States and globally.

The cargo consisted of fresh fish, caught by the crew from the sea, put on board as they were caught, and kept and sold alive.

The blockading squadron stopped the vessel, leading to its capture and seizure.

They had no interest in the vessel but were entitled to shares, amounting to two-thirds, of the catch.

It sought the condemnation of each vessel and her cargo as prize of war.

The court was not satisfied that, as a matter of law, without any ordinance, treaty, or proclamation, fishing vessels of this class are exempt from seizure.

It establishes the rule's final establishment in the United States and globally.

To declare and adjudge that the capture was unlawful and without probable cause.

The binding nature of the custom of exempting coastal fishers on the US and the degree of international recognition accorded to it.

It suggests that the US is not bound by international rules of war and can act unilaterally.

The law of nations is used to determine the legality of the capture, and the highest prize court of the United States has the duty to administer this law.

The proceeds of the sale of the vessel and its cargo will be restored to the claimant with damages and costs.

They illustrate the tension between the international law of war and the power of the President to decide on its application.

considerations of courtesy, convenience, or tradition

Regional customs are used by a few nations, while universal customs are practiced by many nations, and both can be binding.

That the custom is established in such a manner that it has become binding on the other party, and that it is in accordance with a constant and uniform usage.

Universality is rarely achieved in an international system composed of many diverse nations.

Practice is substantive evidence of a general consensus or acceptable expectation, and it gradually evolves through compromise and consistency of application.

Dissent or change of consensus can indicate that a certain norm is not supported by universal consensus, and may bring about a new norm or revision.

It illustrates how a group of decision makers determined whether a particular custom actually existed and was sufficiently acknowledged by the international community to be binding International Law.

Custom is a source of International Law, and it evolves through compromise and consistency of application.

Consistency of application is necessary to establish a custom as International Law, as it indicates a general consensus or acceptable expectation.

The concept of custom reflects the dynamic and evolving nature of International Law, which is shaped by the practice of States.

Considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states

They favored fishing vessels employed in catching and bringing to market fresh fish, setting a precedent for future exemptions

It established prize courts and exempted 'boats engaged in coast fisheries' from detention, along with other vessels

Their works provide trustworthy evidence of what the law really is, rather than speculations about what it ought to be

It manifested the general policy of the government to conduct the war in accordance with the principles of international law sanctioned by recent practice

The two vessels and their cargoes were condemned by the district court as prize of war, and the vessels were sold under its decrees

The general custom against the capture of such vessels, as established by the practice of civilized nations

It reflects a consideration of humanity to a poor and industrious order of men, ensuring their peaceful activities are protected

As an established rule, founded on considerations of humanity and mutual convenience, and sanctioned by the recent practice of civilized nations

It abundantly demonstrates the established rule of international law, based on the general consent of civilized nations

The list of sources was extracted from Article 38 of the prior Statute, unanimously adopted by the First Assembly of the League of Nations in 1920 for the original world court, the Permanent Court of International Justice (PCIJ).

The UN Secretary-General commented that the sources of International Law 'has been repeatedly treated as authoritative by international arbitral tribunals'.

The American Law Institute has published a number of restatements of various fields of law, which is a blend of what is, and what should be, the law in a particular field.

The sources of International Law under $102 of the Foreign Relations Law of the United States are customary law, international agreement, and general principles 'common to the major legal systems of the world'.

General Assembly resolutions are 'secondary' evidence, analogous to the ICJ Article 38 term 'subsidiary' sources, and are not considered a direct indicator of the content of International Law.

The purpose is to see whether the particular rule, which some participant is advocating, has been consented to by States.

The wording of Article 38 is open to certain criticisms, but it has worked well in practice and its retention is recommended.

The London Court of Appeal's pronouncement emphasizes the importance of taking judicial notice of international treaties and conventions, authoritative textbooks, practice and judicial decisions of other courts in other countries to determine International Law.

International organizations have no authority to make law, and their determinations of what is law ordinarily have no special weight.

The American Law Institute's Restatement provides guidance on the sources of International Law, including customary law, international agreement, and general principles 'common to the major legal systems of the world'.