the camel's nose
Francisco Forrest Martin
ricenter at IGC.ORG
Tue Sep 18 15:57:39 PDT 2001
Prof. McConnell asked: "(1) What is the content of jus cogens and how is it determined? In my own nonspecialist mind, I thought "jus cogens" referred to norms that are so fundamental and commonly held among civilized nations that the only infractions are likely to be by rogue nations or horrific regimes."
Generally speaking, this is a good description. What is the content of such jus cogens rights/duties? Vice-President Rozakis of the European Court of Human Rights and others argue (and international case law supports) that jus cogens can be found in the non-derogable provisions of multilateral treaties. Such provisions address, e.g., rights to life and humane treatment, freedom from criminal ex post facto laws, prohibition of genocide.
Prof. McConnell continues: "I find it difficult to imagine a conflict between jus cogens, so understood, and a statute enacted by Congress consistent with our Constitution. Wouldn't the existence of such a statute constitute powerful evidence that the supposed jus cogens norm is *not* universally enough shared to enjoy that status? (Thus, even if Prof. Martin is correct that jus cogens norms trump statutes in U.S. courts, why is this not a null set?)"
I have been able to locate only one arguable example of a federal statute violating jus cogens (viz., federal statutory provision effectively allowing execution by gas asphyxiation). Where we find jus cogens violations is how federal law is executed.
Prof. McConnell continues: "(2) What is the status of norms that are articulated by an international body (such as the International Court of Justice) in supposed "interpretation" of a vaguely and uncontroversially worded treaty provision? For example, suppose we sign a treaty agreeing to jurisdiction on the part of an international body over "genocide," whereupon that body decides that capital punishment constitutes genocide? Or suppose there is an emerging
customary international law norm against "genocide," to which we do not object, whereupon an international body "interprets" the norm to forbid capital punishment. In Professor Martin's view, the "monist" view, or any other such view, would U.S. courts have the authority or the obligation in such circumstances to rule that capital punishment is impermissible? (I am not inviting discussion of the merits of the argument that capital punishment is a form of genocide, but simply using this as an example of a farfetched but not wholly inconceivable "interpretation" of a seemingly uncontroversial norm, which would produce a conflict with domestic law.)"
As a matter of international law, strictly speaking, the U.S. would be bound if it was the respondent party in the case. I think that even the Executive Branch has always ascribed to this. When the ICJ has found the U.S. in violation of international law, the failure of the U.S. not to observe the court's eventual holding was based on jurisdictional disagreement (e.g., Nicaragua v. U.S.). (But for those of you out there who are death penalty supporters, don't worry. Even international human rights law allows for the death penalty.)
Francisco Forrest Martin
Ariel F. Sallows Professor of Human Rights
University of Saskatchewan College of Law
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