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Class 18:
Non-Consensual Sources of
International Law
In addition to treaties and custom, both of which arguably have consensual underpinnings, some scholars argue that certain international law norms are non- consensual – in particular, "general principles of law" and "jus cogens."
1. General Principles
The Statute of the ICJ lists "general principles of law recognized by civilized nations" as one of the three basic sources of law. There is little agreement, however, about the nature of "general principles." Some argue that general principles are the basic rules of legal logic that the ICJ must use to decide cases – for example, the later-in-time rule or the lex specialis rule. Others contend that general principles include substantive legal norms that are common to most legal systems in the world – for example, liability for ultrahazardous activity or basic norms of human rights. On this view, a comparative law, inductive methodology should be used to discover general principles. A third theory of general principles holds that general principles derive from natural law and are discoverable through reason. This last view is particularly antithetical to the consensual theory of international law.
Schachter, International Law in Theory and Practice 50–55 (1991)
We can distinguish five categories of general principles that have been invoked and applied in international law discourse and cases. Each has a different basis for its authority and validity as law. They are:
- The general principles of municipal law "recognized by civilized nations."
- General principles of law "derived from the specific nature of the international community."
- Principles "intrinsic to the idea of law and basic to all legal systems."
- Principles "valid through all kinds of societies in relationships of hierarchy and co-ordination."
- Principles of justice founded on "the very nature of man as a rational and social being."
Although these five categories are analytically distinct, it is not unusual for a particular general principle to fall into more than one of the categories. For example, the principle that no one shall be a judge in his own cause or that a victim of a legal wrong is entitled to reparation are considered part of most, if not all, systems of municipal law and as intrinsic to the basic idea of law.
Our first category, general principles of municipal law, has given rise to a considerable body of writing and much controversy. Article 38(1)(c) of the Statute of the Court does not expressly refer to principles of national law, but rather general principles "recognized by civilized nations." The travaux preparatoires reveal an interesting variety of views about this subparagraph during the drafting stage. . . . Elihu Root, the American member of the drafting committee, prepared the text finally adopted and it seemed clear that his amendment was intended to refer to principles "actually recognized and applied in national systems." The fact that the subparagraph was distinct from those on treaty and custom indicated an intent to treat general principles as an independent source of law, and not as a subsidiary source. As an independent source, it did not appear to require any separate proof that such principles of national law had been "received" into international law.
However, a significant minority of jurists holds that national law principles, even if generally found in most legal systems, cannot ipso facto be international law. One view is that they must receive the imprimatur of state consent through custom or treaty in order to become international law. The strict positivist school adheres to that view. A somewhat modified version is adopted by others to the effect that rules of municipal law cannot be considered as recognized by civilized nations unless there is evidence of the concurrence of states on their status as international law. Such concurrence may occur through treaty, custom or other evidence of recognition.
Several influential international legal scholars have considered municipal law as an important means for developing international law and extending it into new areas of international concern. For example, Wilfred Jencks and Wolfgang Friedmann have looked to a "common law of mankind" to meet problems raised by humanitarian concerns, environmental threats, and economic relations. . . .
Despite the eloquent arguments made for using national law principles as an independent source of international law, it cannot be said that either courts or the political organs of States have significantly drawn on municipal law principles as an autonomous and distinct ground for binding rules of conduct. . . .
. . . . The most important limitation on the use of municipal law principles arises from the requirement that the principle be appropriate for application on the international level. Thus, the universally accepted common crimes – murder, theft, assault, incest – that apply to individuals are not crimes under international law by virtue of their ubiquity. . . .
The second category of general principles included in our list comprises principles derived from the specific character of the international community. The most obvious candidates for this category of principles . . . include the principles of pacta sunt servanda, non-intervention, territorial integrity, self- defense and the legal equality of states. . . .
Our third category is even more abstract but not infrequently cited: principles "intrinsic to the idea of law and basic to all legal systems.". . . Most of the principles cited in World Court and arbitral decisions as common in municipal law are also referred to as "basic" to all law. . . . Some of the examples that fall under this heading would seem to be analytical (or tautologous) propositions. Pacta sunt servanda and nemo plus iuris transfere potest quam ipse habet (no one can transfer more rights than he possesses) are good examples. (Expressing tautologies in Latin apparently adds to their weight in judicial reasoning.) Several other maxims (also commonly expressed in Latin phrases), considered as intrinsic to all representative legal systems, are sometimes described as juridical "postulates," or as essential elements of legal reasoning. Some principles of interpretation fall in this category: for example, the lex specialis rule and the maxim lex posterior derogat priori (the latter supersedes the earlier law, if both have the same source). A similar sense of lawyers' logic supports certain postulates of judicial proceedings: for example, res judicata and the equality of all parties before a tribunal. . .
. . . In actual practice those postulates are established by "logic" or a process of reasoning, with illustrative examples added. . . . However, if a particular principle or postulate becomes a subject of dispute regarding its general acceptance, it is likely to lose its persuasive force as an intrinsic principle. Hence, in the last analysis, these principles, however "intrinsic" they may seem to be to the idea of law, rest on an implied consent of the relevant community.
The foregoing comments are also pertinent to the next two categories of general principles. The idea of principles "jus rationale" "valid through all kinds of human society" (in Judge Tanaka's words) is associated with traditional natural law doctrine. At the present time its theological links are mainly historical as far as international law is concerned, but its principal justification does not depart too far from the classic natural law emphasis on the nature of "man," that is, on the human person as a rational and social creature.
. . . [O]ur fifth category – the principles of natural justice – [is a concept] well known in many municipal law systems. . . . "Natural justice" in its international legal manifestation has two aspects. One refers to the minimal standards of decency and respect for the individual human being that are largely spelled out in the human rights instruments. . . . The second aspect of "natural justice" tends to be absorbed into the related concept of equity which includes such elements of "natural justice" as fairness, reciprocity, and consideration of the particular circumstances of a case.
Waldock, General Course on Public International Law, 106 Hague Recueil 54 (1962-II)
On one side there are jurists like Verdross, who say that Article 38 has the effect of incorporating "natural law" in international law and claim that positive rules of international law are invalid if they conflict with natural law. At the other extreme are jurists like Guggenheim and Tunkin, who maintain that paragraph (c) adds nothing to what is already covered by treaties and custom; for these authorities hold that general principles of national law are part of international law only to the extent that they have been adopted by states in treaties or recognized in state practice. In between stand the majority of jurists. . . . They take the view that general principles recognized in national law constitute a reservoir of principles which an international judge is authorized by Article 38 to apply in an international dispute, if their application appears relevant and appropriate in the different context of inter- state relations. . . .
The Court, it must be admitted, has shown restraint in its recourse to "general principles of national law" as authority for its own pronouncements, although individual judges have been less reluctant to invoke them as support for their opinions. Even when apparently relying on this source of law, the Court has not infrequently either referred also to customary law or left it ambiguous as to whether it was speaking of a general principle of national or international law.
2. Jus Cogens
A second type of norm that may not be consensual are norms of jus cogens – that is, peremptory norms from which no derogation is permitted. The concept of jus cogens has been very controversial, and there is little agreement about which norms qualify as jus cogens. Candidates include the prohibitions on slavery, genocide, and apartheid. In its decision in the Nicaragua case, the International Court of Justice referred to the rule against the use of force as "a conspicuous example of a rule of international law having the character of jus cogens."
A version of the jus cogens doctrine was accepted in the Vienna Convention on the Law of Treaties. Article 53 provides:
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law. For the purposes of the 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.
This doctrine is analogous to the rule of contract law that a contract is void if contrary to public policy.
The notion that there can be non-consensual norms of international law is, not surprisingly, threatening to many states. Thus, the Vienna Convention accommodates the view that jus cogens is consensual, by referring to peremptory norms as norms "accepted and recognized by the international community of states as a whole" (emphasis added).
Most discussions of jus cogens, however, view jus cogens as non-consensual. On this view, just as the Vienna Convention does not permit states to derogate from norms of jus cogens by means of a treaty, states may not opt out of jus cogens through persistent objection.
Oppenheim's International Law 7-8 (9th ed. 1992)
States may, by and within the limits of agreement between themselves, vary or even dispense altogether with most rules of international law. There are, however, a few rules from which no derogation is permissible. The latter – rules of jus cogens, or peremptory norms of international law – have been defined in Article 53 of the Vienna Convention on the Law of Treaties (and for the purpose of that Convention) as norms "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;" and Article 64 contemplates the emergence of new rules of jus cogens in the future.
Such a category of rules of jus cogens is a comparatively recent development and there is no general agreement as to which rules have this character. The International Law Commission regarded the law of the Charter concerning the prohibition on the use of force as a conspicuous example of such a rule. Although the Commission refrained from giving in its draft Articles on the Law of Treaties any examples of rules of jus cogens, it did record that in this context mention had additionally been made of the prohibition of criminal acts under international law, and of acts such as trade in slaves, piracy or genocide, in the suppression of which every state is called upon to cooperate; the observance of human rights, the equality of states, and the principle of self-determination. The full content of the category of jus cogens remains to be worked out in the practice of states and in the jurisprudence of international tribunals. . . .
The operation and effect of rules of jus cogens in areas other than that of treaties are similarly unclear. Presumably no act done contrary to such a rule can be legitimated by means of consent, acquiescence or recognition; nor is a protest necessary to preserve rights affected by such an act; nor can a rule of customary international law which conflicts with a rule of jus cogens continue to exist or subsequently be created (unless it has the character of jus cogens, a possibility which raises questions – to which no firm answer can yet be given – of the relationship between rules of jus cogens, and of the legitimacy of an act done in reliance on one rule of jus cogens but resulting in a violation of another such rule).
The Italian jurist, Roberto Ago, has contrasted positivism with non-
consensual approaches in the following terms:
[T]he essence of [positivism] cannot . . . be detached from a creation of law by a definite productive organ, from its being "laid down" by a body – though this body may be society . . . . It is bound up with the whole conception of law as "having been" produced by society, and linked to the premise . . . of the necessarily "positive" nature of all existing legal norms.FN1
In contrast, non-positivist approaches believe that:
there are norms, existing and in force, which differ from the others, not because they were produced by a source different from and superior to the law . . . but because they are norms which have no "source" of any kind, which grew up in the conscience of the members of society without having been "produced" or "formulated" by any body . . . . [L]egality is not a quality conferred on norms because they were laid down by a given body, whichever that may be. . . . [L]aw as a social phenomenon . . . is manifested and operates in the life of a society and . . . therefore one must look for it in society, and consider and understand it in relation to society and its needs.FN1
Questions
Read the Antelope and Roach cases and consider the following questions:
- Was slave trade always illegal, or did it only become illegal in the nineteenth
century? If the former, what was the source of the norm prohibiting the slave trade?
If the latter, what brought about the change?
- Must states consent to international law, or do some norms of international
law (like the prohibition on slave trading) not depend on consent? If the latter, how
do we distinguish international law from international morality, or are the two
equivalent? What is the difference between saying that slavery (and the execution
of juveniles) is immoral and saying that they are illegal?
- What is the role of the big powers in the establishment of non-consensual
norms? Is the category of "non-consensual norms" really a euphemism for what the
big powers impose on the rest of the world community?
- What type of international law is jus cogens? Is it a type of customary law? A separate source of law? Is it "law" at all, or simply international morality?
The Antelope
[In 1820, an American patrol vessel captured a boat carrying Africans freed from
Spanish, Portuguese and American slave ships. After the US government refused to
return the Africans to Spain and Portugal, those nations pressed claims for their
return. In his opinion, Chief Justice John Marshall considered whether international
law prohibits the slave trade.]
APPEAL from the Circuit Court of Georgia.
These cases were allegations filed by the Vice-Consuls of Spain and Portugal,
claiming certain Africans as the property of subjects of their nation. The material
facts were as follows: a privateer, called the Colombia, sailing under a Venezuelan
commission, entered the port of Baltimore in the year 1819; clandestinely shipped a
crew of thirty or forty men; proceeded to sea, and hoisted the Artegan flag, assuming
the name of the Arraganta, and prosecuted a voyage along the coast of Africa; her
officers and the greater part of her crew being citizens of the United States. Off the
coast of Africa she captured an American vessel, from Bristol, in Rhode Island, from
which she took twenty-five Africans; she captured several Portuguese vessels, from
which she also took Africans; and she captured a Spanish vessel, called the Antelope,
from which she also took a considerable number of Africans. The two vessels then
sailed in company to the coast of Brazil, where the Arraganta was wrecked, and her
master, Metcalf, and a great part of his crew, made prisoners; the rest of the crew,
with the armament of the Arraganta, were transferred to the Antelope, which, thus
armed, assumed the name of the General Ramirez, under the command of John
Smith, a citizen of the United States; and on board this vessel were all the Africans,
which had been captured by the privateer in the course of her voyage. This vessel,
thus freighted, was found hovering near the coast of the United States by the revenue
cutter, Dallas, under the command of Captain Jackson, and finally brought into the
port of Savannah for adjudication. The Africans, at the time of her capture,
amounted to upwards of two hundred and eighty. On their arrival, the vessel, and the
Africans, were libeled, and claimed by the Portuguese and Spanish Vice-Consuls
reciprocally. They were also claimed by John Smith, as captured jure belli. They
were claimed by the United States, as having been transported from foreign parts by
American citizens, in contravention to the laws of the United StatesFN2, and as entitled
to their freedom by those laws, and by the law of nations. Captain Jackson, the
master of the revenue cutter, filed an alternative claim for the bounty given by law,
if the Africans should be adjudged to the United States; or to salvage, if the whole
subject should be adjudged to the Portuguese and Spanish Consuls.
The Court dismissed the libel and claim of John Smith. They dismissed the
claim of the United States, except as to that portion of the Africans which had been
taken from the American vessel. The residue was divided between the Spanish and
Portuguese claimants.
* * * *
Mr. Chief Justice Marshall delivered the opinion of the Court, and, after
stating the case, proceeded as follows:
In prosecuting this appeal the United States assert no property in themselves.
They appear in the character of guardians, or next friends, of these Africans, who are
brought, without any act of their own, into the bosom of our country, insist on their
right to freedom, and submit their claim to the laws of the land, and to the tribunals
of the nation.
The Consuls of Spain and Portugal, respectively, demand these Africans as
slaves, who have, in the regular course of legitimate commerce, been acquired as
property by the subjects of their respective sovereigns, and claim their restitution
under the laws of the United States.
In examining claims of this momentous importance; claims in which the
sacred rights of liberty and of property come in conflict with each other; which have
drawn from the bar a degree of talent and of eloquence, worthy of the questions that
have been discussed; this Court must not yield to feelings which might seduce it from
the path of duty, and must obey the mandate of the law.
That the course of opinion on the slave trade should be unsettled, ought to
excite no surprise. The Christian and civilized nations of the world, with whom we
have most intercourse have all been engaged in it. However abhorrent this traffic
may be to a mind whose original feelings are not blunted by familiarity with the
practice, it has been sanctioned in modern times by the laws of all nations who
possess distant colonies, each of whom has engaged in it as a common commercial
business which no other could rightfully interrupt. It has claimed all the sanction
which could be derived from long usage, and general acquiescence. That trade could
not be considered as contrary to the law of nations which was authorized and
protected by the laws of all commercial nations; the right to carry on which was
claimed by each, and allowed by each. The course of unexamined opinion, which was founded on this inveterate
usage, received its first check in America; and, as soon as these States acquired the
right of self-government, the traffic was forbidden by most of them. In the beginning
of this century, several humane and enlightened individuals of Great Britain devoted
themselves to the cause of the Africans; and, by frequent appeals to the nation, in
which the enormity of this commerce was unveiled, and exposed to the public eye,
the general sentiment was at length roused against it, and the feelings of justice and
humanity, regaining their long lost ascendancy, prevailed so far in the British
parliament as to obtain an act for its abolition. The utmost efforts of the British
government, as well as of that of the United States, have since been assiduously
employed in its suppression. It has been denounced by both in terms of great
severity, and those concerned in it are subjected to the heaviest penalties which law
can inflict. In addition to these measures operating on their own people, they have
used all their influence to bring other nations into the same system, and to interdict
this trade by the consent of all.
Public sentiment has, in both countries, kept pace with the measures of
government; and the opinion is extensively, if not universally entertained, that this
unnatural traffic ought to be suppressed. While its illegality is asserted by some
governments, but not admitted by all; while the detestation in which it is held is
growing daily, and even those nations who tolerate it in fact, almost disavow their
own conduct, and rather connive at, than legalize, the acts of their subjects; is it not
wonderful that public feeling should march somewhat in advance of strict law, and
that opposite opinions should be entertained on the precise cases in which our own
laws may control and limit the practice of others. Indeed, we ought not to be
surprised, if, on this novel series of cases, even Courts of Justice should, in some
instances, have carried the principle of suppression farther than a more deliberate
consideration of the subject would justify.
* * *
In the United States, different opinions have been entertained in the different
Circuits and Districts; and the subject is now for the first time, before this Court.
The question, whether the slave trade is prohibited by the law of nations has
been seriously propounded, and both the affirmative and negative of the proposition
have been maintained with equal earnestness.
That it is contrary to the law of nature will scarcely be denied. That every man
has a natural right to the fruits of his own labor, is generally admitted; and that no
other person can rightfully deprive him of those fruits, and appropriate them against
his will, seems to be the necessary result of this admission. But from the earliest
times war has existed, and war confers rights in which all have acquiesced. Among
the most enlightened nations of antiquity, one of these was, that the victor might
enslave the vanquished. This, which was the usage of all, could not be pronounced
repugnant to the law of nations, which is certainly to be tried by the test of general
usage. That which has received the assent of all, must be the law of all.
Slavery, then, has its origin in force; but as the world has agreed that it is a
legitimate result of force, the state of things which is thus produced by general
consent, cannot be pronounced unlawful.
Throughout Christendom, this harsh rule has been exploded, and war is no
longer considered as giving a right to enslave captives. But this triumph of humanity
has not been universal. The parties to the modern law of nations do not propagate
their principles by force; and Africa has not yet adopted them. Throughout the whole
extent of that immense continent, so far as we know its history, it is still the law of
nations that prisoners are slaves. Can those who have themselves renounced this law,
be permitted to participate in its effects by purchasing the beings who are its victims?
Whatever might be the answer of a moralist to this question, a jurist must
search for its legal solution, in those principles of action which are sanctioned by the
usages, the national acts, and the general assent, of that portion of the world of which
he considers himself as a part, and to whose law the appeal is made. If we resort to
this standard as the test of international law, the question, as has already been
observed, is decided in favour of the legality of the trade. Both Europe and America
embarked in it; and for nearly two centuries, it was carried on without opposition,
and without censure. A jurist could not say, that a practice thus supported was illegal,
and that those engaged in it might be punished, either personally, or by deprivation
of property.
In this commerce, thus sanctioned by universal assent, every nation had an
equal right to engage. How is this right to be lost? Each may renounce it for its own
people; but can this renunciation affect others?
No principle of general law is more universally acknowledged, than the
perfect equality of nations. Russia and Geneva have equal rights. It results from this
equality, that no one can rightfully impose a rule on another. Each legislates for itself
but its legislation can operate on itself alone. A right, then, which is vested in all by
the consent of all, can be divested only by consent; and this trade, in which all have
participated, must remain lawful to those who cannot be induced to relinquish it. As
no nation can prescribe a rule for others, none can make a law of nations; and this
traffic remains lawful to those whose governments have not forbidden it.
* * *
It follows, that a foreign vessel engaged in the African slave trade, captured
on the high seas in time of peace, by an American cruiser, and brought in for
adjudication, would be restored.
In re Roach and Pinkerton [The Inter-American Commission on Human Rights was established by the
Organization of American States (OAS). Like the European Commission on Human
Rights, it may hear petitions by individuals regarding alleged violations of human
rights. The Commission's competence includes violations of either the American
Declaration of the Rights and Duties of Man (a non-binding resolution of the OAS)
or the American Convention on Human Rights.
[The Roach and Pinkerton cases involved challenges to the practice of some US
states of executing individuals for crimes committed under the age of 18. The
American Convention on Human Rights expressly prohibits imposing the death
penalty for crimes committed by people under 18 years old. However, the United
States is not a party to the American Convention. Thus, the Commission had to
consider whether the juvenile death penalty violates the American Declaration.]
I. INTRODUCTION
A. Summary of the facts and the Petitioners' complaint * * * *
V. OPINION OF THE COMMISSION
A. Point at issue B. The international obligation of the United States under the American
Declaration 45. The [1969] American Convention on Human Rights, on the other
hand, refers specifically to capital punishment in five of its provisions. Article 4 of
the American Convention, which protects the right to life, reads as follows:
Article 4. Right to Life * * * *
47. The United States is a member State of the Organization of American
States [OAS], but is not a State party to the American Convention on Human Rights,
and, therefore, cannot be found to be in violation of Article 4(5) of the Convention,
since as the Commission stated in Case 2141 (United States), para. 31:
* * * *
50. The central violation denounced in the petition concerns a violation
of the right to life, Article I of the Declaration, which states: "Every human being has
the right to life. . . ." Since the Declaration is silent on the issue of capital
punishment, Petitioners, in connection with Article I, seek an affirmative response
to the question: Is there a norm of customary international law which prohibits the
imposition of the death penalty on persons who committed capital crimes before
completing eighteen years of age?
51. The elements of a norm of customary international law are the
following: 52. The evidence of a customary rule of international law requires
evidence of widespread state practice. Article 38 of the Statute of the International
Court of Justice (ICJ) defines "international custom, as evidence of a general
practice accepted as law." The customary rule, however, does not bind States which
protest the norm.
In the Fisheries Case (United Kingdom v. Norway) the ICJ found that
although the
How many states need to engage in the state practice for it to acquire the
authority of a customary norm has never been definitively established, but it is clear
that while a universal practice is not necessary, the practice must be common and
widespread.
53. The U.S. Government, in December 1977, transmitted the American
Convention on Human Rights, inter alia, to the U.S. Senate for advice and consent
to ratification subject to specified reservations. As regards the issue in question, the
U.S. Government proposed reservations to Articles 4 and 5 which were presented
as follows:
[Article (5)], [p]aragraph 5 requires that minors subject to
criminal proceedings are to be separated from adults and
brought before specialized tribunals as speedily as possible.
. . . With respect to paragraph (5), the law reserves the right
to try minors as adults in certain cases and there is no present
intent to revise these laws. The following statement is
recommended:
54. Since the United States has protested the norm, it would not be
applicable to the United States should it be held to exist. For a norm of customary
international law to be binding on a State which has protested the norm, it must have
acquired the status of jus cogens.FN4 Petitioners do not argue that a rule prohibiting the
execution of juvenile offenders has acquired the authority of jus cogens, a peremptory
norm of international law from which no derogation is permitted. The Commission,
however, is not a judicial body and is not limited to considering only the
submissions presented by the parties to a dispute.
D. General principles applicable to the present case
55. The concept of jus cogens is derived from ancient law concepts of a
"superior order" of legal norms, which the laws of man or nations may not
contravene. The norms of jus cogens have been described by publicists as
comprising "international public policy." They are "rules which have been accepted,
either expressly by treaty or tacitly by custom, as being necessary to protect the
public interest of the society of States or to maintain the standards of public morality
recognized by them."FN5
According to Ian Brownlie, the major distinguishing feature of rules of jus cogens
is their "relative indelibility." Brownlie suggests certain examples of jus cogens
such as: "the prohibition of aggressive war, the law of genocide, the principle
of racial non-discrimination, crimes against humanity, and the rules prohibiting trade
in slaves and piracy."FN6
Since the acceptance of norms of jus cogens is still subject to
some debate in some sectors, it might be argued that the International Court of
Justice did not
consider the prohibition against genocide, for example, to be a norm of jus cogens.
It has been argued, however, that the World Court has made "indirect references" to
the concept of jus cogens, without actually calling it such by name, in the advisory
opinion on the Reservations to the Genocide Convention case, in which the Court
stated:
The rule prohibiting genocide would be binding on States not parties to the
Genocide Convention, even if derived only from customary international law,
without having acquired the status of jus cogens, but it achieves the status of jus
cogens precisely because it is the kind of rule that it would shock the conscience of
mankind and the standards of public morality for a State to protest.
The International Court of Justice, in a later case, categorized the prohibition
of genocide as an obligation erga omnes. Whereas the ICJ does not make reference
to the concept jus cogens, it has been suggested that the examples given of
obligations erga omnes are examples of what the ICJ would consider to be norms of
jus cogens. The following distinction between obligations of a State vis-a-vis the
international community (erga omnes) and vis-a-vis another State is taken from the
judgment in the Barcelona Traction case:
When a State admits into its territory foreign investments or
foreign nationals, whether natural or juristic persons, it is
bound to extend to them the protection of the law and
assumes obligations concerning the treatment to be afforded
them. These obligations, however, are neither absolute nor
unqualified. ln particular, an essential distinction should be
drawn between the obligations of a State towards the
international community as a whole, and those arising
vis-a-vis another State in the field of diplomatic protection.
By their very nature the former are the concern of all States.
In view of the importance of the rights involved, all States can
be held to have a legal interest in their protection; they are
obligations erga omnes.
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the
body of general international law (Reservations to the
Convention on the Prevention and Punishment of the Crime
of Genocide, Advisory Opinion, ICJ Reports 1951, p. 23);
others are conferred by international instruments of a
universal or quasi-universal character.
Obligations the performance of which is the subject of
diplomatic protection are not of the same category.
As to whether "the principles and rules concerning the basic rights of the
human person" is intended to mean that all codified human rights provisions
contained in international treaties are embraced by the concept of jus cogens is an
issue that is both controversial and beyond the scope of the matter presented for the
Commission to decide.
56. The Commission finds that in the member States of the OAS there is
recognized a norm of jus cogens which prohibits the State execution of children.
This norm is accepted by all the States of the inter-American system, including the
United States. The response of the U.S. Government to the petition in this case
affirms that "[A]ll states, moreover, have juvenile justice systems: none permits its
juvenile courts to impose the death penalty."
* * * *
CONCLUSION 64. The Commission concludes, by 5 votes to 1, that the United States
Government violated Article I (right to life) of the American Declaration of the
Rights and Duties of Man in executing James Terry Roach and Jay Pinkerton.
DISSENTING OPINION OF DR. MARCO GERARDO MONROY CABRA,
[Dr. Cabra first considered whether U.S. application of the death penalty to juveniles
violated the American Declaration of the Rights and Duties of Man, and concluded
it did not. He then turned to the customary international law question:]
3. THERE IS NO EXISTING RULE IN CUSTOMARY
INTERNATIONAL LAW PROHIBITING THE IMPOSITION OF
THE DEATH PENALTY WITH RESPECT TO JUVENILES
Article 38 of the Statute of the International Court of Justice lists as a source
of international law: "(b) international custom, as evidence of a general practice
accepted as law". Max Sorensen states the following:
Ch. Rousseau, professor of international law, lists three characteristics of
custom: A generalized and uniform practice does not suffice; of vital importance is
the opinion juris. In the judgment on the North Sea Continental Shelf Case, the
International Court of Justice said the following on the requirement of the subjective
element and opinion juris:
According to Professor of international law, Eduardo Jimenez de Arechaga,
customary law, which finds its expression in treaties, can operate in three different
ways: the text of the treaty can simply declare a customary rule that existed
previously; it can give concrete expression to a rule that is developing in statu
nascend; or, the provision of a treaty can convert de lege ferenda to a subsequent
state practice after a process of consolidation whereupon it converts to customFN10. In
other cases, the custom can derive from the consensus of states in adopting United
Nations General Assembly resolutions, as in the case of the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations, or the 1963
Declaration of Legal Principles Governing the Activities of States in the Exploration
and Use of Outer Space, or Resolution 1514 on the Granting of Independence to
Colonial Countries and Peoples, etc. According to Sorensen (op cit. p. 133), it is not possible to speak of a custom
as general if its observance is confined to a particular group of states. This means
that an essential requirement concerning custom is that it should derive from the
community of States as a whole. Sorensen notes that: "A custom cannot be
transformed into a rule of law if it encounters opposition of a proportion of the states
comprising the international community or, as the case may be, the region or group
within which it is in operation. For in such a case the requisite is not forthcoming"
(op cit p. 135). This implies that the opposition of a number of states thwarts the
formation of a general customary rule.
The application of the foregoing principles to Case 9647 shows, in my view,
the nonexistence of a general rule of customary law prohibiting the application of the
death penalty on persons who committed capital crimes under 18 years of age. This
conclusion is drawn from the following analysis:
The fact that prohibition of the death penalty with respect to juveniles under
18 years of age appears in the American Convention on Human Rights (Article 4.5),
in the International Covenant on Civilian and Political Rights (Article 6.5) and in the
Fourth Geneva Convention (Art. 68) does not mean that these treaties have declared
an existing custom or have crystallized or reflected a custom. The only thing that
can be accepted is the generating effect de lege ferenda, which can lead to the
development of the custom if state practice in the matter is consolidated. With regard
to the prohibition of the death penalty, there is no uniformity in the laws of states,
since some allow it and others prohibit it; further, some prohibit the death penalty
in the case of minors, and others accept it or remain silent on the subject. It is
possible that with time, the practice of States will lead to the emergence of the
custom in the instant case, but at present, it is not an international custom.
The practice and the laws of states with regard to the death penalty in general
and in relation to minors show variations and discrepancies. Ultimately, one sees a
lack of continuity, and contrary to the Commission's mistaken view, it is not possible
to find standard and constant application of it practiced with the intent of producing
legal effects. There is no proof to the effect that all states worldwide feel bound by
an obligatory rule of customary law prohibiting the death penalty with respect to
juveniles under 18 years of age given the fact that the laws of the states are not even
uniform as regards the age at which an individual is punishable.
In fact, there is no evidence of opinion juris, that is to say, demonstration of
state practice that has led to non-application of the death penalty with respect to
minors under 18 years of age, or that this has been a practice for a long time.
Moreover, one must bear in mind that not only has the United States not
given its consent to the development of the so-called custom; but rather it has not
been proven that uniformity exists, not even with respect to the abolition of the death
penalty. In the matter of the Barcelona Traction case, the International Court of
Justice said that "a body of rules could only have developed with the consent of the
parties concerned. The difficulties encountered have been reflected in the evolution
of the law on the subject." (1970 ICJ 48, para. 89). Nor can one speak in terms of
local American custom, since the American Convention on Human Rights has only
been ratified by 19 of the 32 states in the Americas, an indication that there is no
standard practice in the Americas regarding the prohibition of the death penalty, and
even less so with regard to juveniles. The International Covenant on Civil and
Political Rights has not yet been ratified by all states worldwide, and the Fourth
Geneva Convention (art. 68), which has received 162 ratifications, only applies to
international armed conflicts, and consequently, cannot be considered to be a
demonstration of a custom in time of peace.
IN CONCLUSION - It was not proven that a widespread and uniform practice
exists on the part of states, or the opinio juris or conviction that practice has become
obligatory because of the existence of a norm prohibiting the death penalty with
respect to minors under 18 years of age. This custom does not derive from state
practice, or from the provisions of public treaties that have not been ratified by all
states. One cannot therefore consider that there is consensus on this matter.
4. PROHIBITION OF THE DEATH PENALTY WITH RESPECT TO
MINORS UNDER 18 YEARS OF AGE IS NOT A NORM OF JUS
COGENS
Article 53 of the Vienna Convention on the Law of Treaties defines jus
cogens 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."
In its reference to reservations on genocide (May 28, 1951), the ICJ said that
"the principles underlying the Convention are principles which are recognized by
civilized nations as binding on States, even without any conventional obligation.".
. . .
The following appeared as examples of jus cogens at the Vienna Conference
on the Law of Treaties: (a) Treaty concerning a case of the illegitimate use of force
in violation of the principles of the Charter; (b) Treaty concerning the perpetration
of any other criminal act in international law; and (c) Treaty to prohibit the
perpetration or tolerance of such acts as the slave trade, piracy and genocide in the
suppression of which every State is obliged to cooperate. While human rights
standards constitute principles of jus cogens, as we have said in our publication on
human rights (Los Derechos Humanos, Marco Gerardo Monroy Cabra, Edit. Temis,
1980), the prohibition of the death penalty with respect to juveniles under 18 years
of age is not in the nature of a norm of jus cogens. Indeed, it has not been proven
that uniformity exists, since not all states prohibit the death penalty and not all States
prohibit the pronouncement of it with respect to minors under 18 years of age. While
there is undoubtedly a tendency towards abolishing the death penalty, it cannot be
said that the prohibition of the death penalty for minors under 18 years of age is a
norm that has been accepted by the international community as a whole, and
consequently, a norm of jus cogens has not been created. The prohibition of the
death penalty with respect to minors under 18 years of age cannot be compared with
the cases cited at the Vienna Conference, such as the prohibition of piracy or slavery
or the white slave trade or racial discrimination or the prohibition of genocide, since
in all these cases, all states prohibit them. Such is not the case here. The death
penalty is still recognized by a considerable number of States. One cannot speak in
terms of the existence of a norm of jus cogens in effect for the OAS member States
since the American Convention on Human Rights, which prohibits the execution of
minors under 18 years of age, has only been ratified by 19 States. Also, there are
reservations on the matter of the death penalty and it is not a norm that has been
accepted by the 32 American states, and far less by all states worldwide. By virtue
of this fact, it is therefore not a general imperative norm. One need hardly point out
that there can be no " American jus cogens" or "African jus cogens", etc. Rather, one
must be in the presence of an imperative norm that has gained acceptance in the
international community "as a whole", as the Vienna Convention on the Law of
Treaties states in its Article 53.
Not even in the United States is there a rule setting age 18 as the minimum
age for imposition of the death penalty, and to date, the Supreme Court of Justice has
not declared such application unconstitutional. The punishable age is not uniform
among states since some set it at age 16, others at 17, and others at 18. This means
that there is no standard legislation among states as regards the minimum punishable
age or the minimum age for imposition of the death penalty.
IN CONCLUSION - It cannot be inferred from either the practice of states,
or from international jurisprudence, or from doctrine, or from the laws of the states
that a norm of jus cogens prohibiting the imposition of the death penalty with respect
to minors under 18 years of age has come into existence. While human rights
standards are of jus cogens, specifically the prohibition of the death penalty and its
application to minors under 18 years of age do not constitute an imperative norm of
general international law since it has not been accepted by all states that make up the
international legal community.
FN1 Ago, Positive Law and International Law, 51 Am. J. Int'l L. 691, 726-27 (1957)
FN2 The U.S. Congress forbade the importation of slaves beginning
January 1, 1808, the earliest date permitted by the Constitution. American ships
were also banned from the international slave trade. American vessels engaged in
the slave trade could be seized and their crew executed for piracy. While some ships
were seized, there is no evidence of capital punishment for crew members. -- Ed. note.
FN3 Fisheries Case (UK v. Norway), Judgment of Dec. 18, 1951, 1951 I.C.J. 116, 131.
FN4 The concept of jus cogens is included in Article 53 of the
Vienna Convention on the Law of Treaties which states: "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 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." FN5 See Sir Ian Sinclair, The Vienna Convention on the Law of
Treaties 208 (1973). FN7 Manual of Public International Law 130 (1968). FN8 Derecho Internacional Publico Profundizado 96-97 (1966) FN9 1996 ICJ 44. FN10 El Derecho Internacional Contemporaneo 19 (1980).
Inter-American Commission on Human Rights
Resolution No. 3/87
1986-87 Annual Report of the
Inter-American Commission on Human Rights
1. The Petitioners are James Terry Roach and Jay Pinkerton who were
sentenced to death and executed in the United States for crimes which they were
adjudged to have committed, and which they perpetrated before their eighteenth
birthdays. . . .
3. James Terry Roach was convicted of the rape and murder of a fourteen
year old girl and the murder of her seventeen year old boyfriend. Roach committed
these crimes at the age of seventeen and was sentenced to death in the General
Session Court, Richland County, South Carolina on 16 December 1977. Roach
petitioned the United States Supreme Court for a writ of certiorari on three separate
occasions. All petitions were denied Roach also exhausted all appeals to the state
and federal courts, and on 10 January 1986 he was executed.
4. Jay Pinkerton was convicted of murder and attempted rape which he
committed at the age of seventeen. The death sentence was appealed to the Texas
Supreme Court which affirmed the trial court's decision. The United States Supreme
Court denied Pinkerton's writ of certiorari on 7 October 1985. Pinkerton was
executed on 15 May 1986. . . .
6. In their complaint to the Commission, the petitioners allege that the
United States has violated Article I (right to life), Article VII (special protection of
children), and Article XXVI (prohibition against cruel, infamous or unusual
punishment) of the American Declaration of the Rights and Duties of Man by
executing persons for crimes committed before their eighteenth birthday. The
Petitioners allege a violation of their right to life guaranteed under the American
Declaration, as informed by customary international law, which prohibits the
execution of persons who committed crimes under the age of eighteen.
43. The question presented by the petitioners in the present case is
whether the absence of a federal prohibition within U.S. domestic law on the
execution of persons who committed serious crimes under the age of 18 is
inconsistent with human rights standards applicable to the United States under the
inter-American system. . . .
44. L The [1948] American Declaration [of the Rights and Duties of Man]
is silent on the issue of capital punishment. Article I of the American Declaration
reads as follows:
Every human being has the right to life, liberty and the
security of his person.
It would be impossible to impose upon the United States
Government or that of any other State member of the OAS, by
means of `interpretation,' an international obligation based
upon a treaty that such State has not duly accepted or ratified.
. . . ten-mile rule has been adopted by certain States both in
their national law and in their treaties and conventions, and
although certain arbitral decisions have applied it as between
these States, other States have adopted a different limit.
Consequently, the ten-mile rule has not acquired the authority
of a general rule of law.FN3
Article 4 deals with the right to life generally, and includes
provisions on capital punishment. Many of the provisions of
Article 4 are not in accord with United States law and policy,
or deal with matters in which the law is unsettled. The Senate
may wish to enter a reservation as follows: "United States
adherence to Article 4 is subject to the Constitution and other
law of the United States."
"The United States . . . with respect to paragraph (5),
reserves the right in appropriate cases to subject
minors to procedures and penalties applicable to
adults."
. . . that the principles underlying the Convention are
principles which are recognized by civilized nations as
binding on States, even without any conventional obligation.
In these circumstances it is logical that the Court should first
address itself to what was originally presented as the
subject-matter of the third preliminary objection: namely the
question of the right of Belgium to exercise diplomatic
protection of Belgian shareholders in a company which is a
juristic entity incorporated in Canada, the measures
complained of having been taken in relation not to any
Belgian national but to the company itself.
MEMBER OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
This formula has been criticized often because it reverses the
logical order of events in practice, in order to prove the
existence of a customary rule, it is necessary to show that
there exists a 'general practice' which conforms to the rule and
which is 'accepted as law'. Custom is the direct product of the
necessities of international life. It arises when states acquire
the habit of adopting, with respect to a given situation, and
whenever that situation recurs, a given attitude to which legal
significance is attributed.FN7
Not only must the acts concerned amount to a settled practice,
but they must also be such, or be carried out in such a way, as
to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The
need for such a belief, i.e., the existence of a subjective
element, is implicit in the very notion of the opinion juris
sive necessitatis. The States concerned must therefore feel
that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the
acts is not in itself enough. There are many international acts,
e.g., in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not
by any sense of legal duty. FN9
Footnotes
FN6 See Ian Brownlie, Principles of Public International Law 513 (1979).