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INTRODUCTION
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The Vienna Convention on the Law of Treaties
The convention applies only to written treaties between states. The first
part of the document defines the terms and scope of the agreement. The
second part lays out the rules for the conclusion and adoption of treaties,
including the consent of parties to be bound by treaties and the
formulation of reservations—that is, declining to be bound by one or
more particular provisions of a treaty while accepting the rest. The third
part deals with the application and interpretation of treaties, and the
fourth part discusses means of modifying or amending treaties. These
parts essentially codify existing customary law. The most important part
of the convention, Part V, delineates grounds and rules for invalidating,
terminating, or suspending treaties and includes a provision granting the
International Court of Justice jurisdiction in the event of disputes arising
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from the application of those rules. The final parts discuss the effects on
treaties of changes of government within a state, alterations in consular
relations between states, and the outbreak of hostilities between states as
well as the rules for depositaries, registration, and ratification.
It was necessary for 35 member states of the United Nations to ratify the
treaty before it could go into effect. Although it took until 1979 to secure
those ratifications, more than half of the UN members had agreed to the
convention by early 2018. Even those members that had not ratified the
document, such as the United States, generally followed the prescriptions
of the agreement.
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CONCEPT OF JUS COGENS
The rules of jus cogens (also known as peremptory norm) are derived
from the customary international law, and it is a rule or principle which is
so fundamental that it binds all states and does not allow any exceptions.
They are ‘accepted and recognized by the international community of
States as a whole which can be modified only by a subsequent norm of
general international law having the same character’. Article 53 of the
Vienna Convention on the Law of Treaties (VCLT)1969 states that, ‘a
treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law’. Article 64 of the VCLT
1969 further enhances its importance by giving it retrospective effect –
existing treaty which is in conflict becomes void and is terminated.
On the same note, natural law also played a prominent role in the
development of jus cogens in international law. However, Hasmath stated
that it places foundations of jus cogens on shaky grounds, as jus cogens
norms are essentially a social construction.
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Also, as noted by Yasseen, a State or a minority number of States which
refuse to accept the peremptory character of the rule, the acceptance and
recognition as jus cogens by all other States would not be affected,
because a mere majority would suffice, and the minority States will not
be able to opt out for long as they will loss certain privileges.
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In addition, it can be said that jus cogens is there to protect and uphold
human dignity and rights. Criddle and Fox-Decent stated that the jus
cogens rules will trigger the fiduciary principle, where any entity and
States that ‘assumes unilateral administrative power over individuals
bears a fiduciary obligation to honor the basic demands of dignity, which
includes the peremptory norms of international jus cogens’. As mentioned
above, any activities or treaties carried out by the States or international
organisations which offended human dignity and rights are contrary to the
concept of jus cogens, will be considered null and void.
Jus cogens has also an effect on the doctrine of state immunity. The
general rule is that all States have the immunity from being sued by the
others. This can be clearly seen in Al-Adsani v Kuwait, where the
claimant brought an action for damages in tort against the Kuwait
government, claiming that he has been tortured by the officials of Kuwait.
It was held that the government of Kuwait was entitled to immunity from
being sued. This has been affirmed by the European Court on Human
Rights. But the minority judges in the European Court on Human Rights
stated that ‘the jus cogens nature of the prohibition of torture entails that a
State allegedly violating it cannot invoke hierarchically lower rules… to
avoid the consequences of the illegality of its actions’, and stated that
Kuwait could not ‘hide behind the rules on State immunity to avoid
proceedings for a serious claim of torture’. Caplan pointed out that state
immunity is not jus cogens, it ranks lower in the hierarchy of
international law norms, and therefore can be overcome when a jus
cogens norm is at stake, so that human rights victims is able to seek legal
redress. This can be clearly seen in R v Bow Street Metropolitan
Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No. 3), the
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House of Lords ruled that when there is an issue of crime against
humanity, the State Immunity Act 1978 shall be inferior to the rules of jus
cogens.
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CONCLUSION
We can only fall to arguments by scholars who have finally admitted that
its existence is only visionary in the international legal order.
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international arena. Its vision is greater and it cannot anymore be
contained in the VCLTs. It would certainly cause upheavals and
destabilize most areas in the international realm. With all the glaring
weaknesses attributed to it by scholars if weighed against what jus cogens
has achieved or yet to achieve it remains an enigma in international law.
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BIBLIOGRAPHY
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