Stephan Examines Origins, Applications of Jus Cogens in International Law

March 31, 2011

A country's embrace of jus cogens — or the idea in international law that some universal norms or principles override state sovereignty — largely depends on background assumptions about the present and future of the international system, Professor Paul Stephan writes in a new article, "The Political Economy of Jus Cogens."

Paul Stephan

In the article, recently posted on SSRN, Stephan examines the history and function of jus cogens, and examines a current dispute between Germany and Italy. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law.

How did you become interested in this topic?

I have been interested for some time in the jus cogens argument, with in essence says that the fundamental principle of international law, namely state consent, gets called off. Jus cogens is law Latin for peremptory norm, and in private law it means those contractual terms that are forbidden because they violate a public norm (say a prohibition of gambling). Traditionally international law is largely contractual, and there does not exist any international legislature to create public norms that limit the power of states to agree on their obligations. I wanted to know where this idea came from in international law and what is its range of application.

How does the jus cogens doctrine function in international law? Is it in tension with the concept of sovereign immunity?

My article makes clear that the doctrine functions in different ways. The older notion of jus cogens, which is expressed in the Vienna Convention on the Law of Treaties, limits the scope of international law by forbidding states from assuming an obligation (a treaty, or a customary obligation) that would violate certain overarching principles. In other words, jus cogens sets a boundary on what can be international law. That idea has been around for roughly fifty years. The newer version, which is not much more than two decades old, says that jus cogens imposes an obligation in and of itself, even if a state has not accepted it. The tension with sovereign immunity comes in when a state asserts immunity from legal process in another state's courts. Normally this principle is widely recognized as resting on customary international law. Some advocates, however, argue that jus cogens trumps sovereign immunity, and therefore a state may have either a right or a duty to allow suits in its courts against other states. This issue is now before the International Court of Justice, in a case called Germany v. Italy.

What are the shield, sword and bootstrap function of the doctrine as described in your paper?

The shield concept is the idea that jus cogens shields a state from assuming certain international legal obligations. If the obligation violates jus cogens, it doesn't exist. The sword concept is the idea that jus cogens directly imposes certain international legal obligations, even if a state has not accepted them. The bootstrap idea is that an international tribunal, such as the International Court of Justice, can use the jus cogens concept to get around limits on its jurisdiction.

What's the nature of the current dispute between Italy and Germany, and what are the potential ramifications?

The Italian courts have allowed several lawsuits against Germany for various acts committed against Italians during the war, including forced labor. Italy accepts that it must comply with a customary obligation to respect sovereign immunity, but argues that this obligation does not extend to instances where the foreign state is responsible for violations of jus cogens obligations.

Civil lawsuits for human rights violations have been around in the US for the last three decades, but they have really taken off in the last ten years or so and have spread beyond the US. Sovereign immunity is an impediment, both because the state is typically the only deep pocket defendant and because most international law violations involve state officials. A broad conception of immunity, including no jus cogens exception, will push back against this trend. A belief that normal immunity rules don't apply to some category of misconduct will increase litigation and its payoffs.

How did jus cogens emerge on the international scene? What are the doctrine's historical roots?

The term itself goes back to contract law, especially as conceptualized in the German Civil Code. In the years after World War II it became a metaphor for expressing the idea that international law had its limits. The Soviet bloc in particular embraced the concept, because it allows for a revision and rejection of formal international legal obligations (such as treaties) that do not accord with fundamental principles, and the Soviets in their theory of peaceful coexistence has a pretty flexible set of fundamental principles. The Soviet conception dominated the debate over the Vienna Convention, and both the United States and Frances refused to ratify that treaty in part because of its formulation of jus cogens. At some point in the 1980s, however, human rights advocates began to realize the doctrine's possibilities as an override to both domestic and international law obstacles to human rights enforcement.

How does a particular vision of jus cogens depend on background assumptions about the international system? What do you think its role will be in the future?

For countries seeking the maximize national influence, international law works as a means of preserving national autonomy and coordinating international cooperation. Think of China, although some would argue that the United States also falls into this role. Jus cogens for these actors limits the demands of the international system on powerful states. It also can be used as a way of overriding inconvenient international obligations, such as investment treaties. For states that want to maximize the role of the international system at the expense of states, jus cogens becomes a kind of super international law, a body of obligations that overrides other kinds of international law as well as domestic law. Many countries in Europe seem to embrace something like this view. The United States, I think, falls in the middle, as does Australia and Canada. But the situation is fluid.

Is there a one-size-fits-all solution to the arguments about jus cogens and immunity?

No, quite the contrary. One can imagine a country that believes in a strong doctrine on sovereign equality and noninterference in domestic affairs — say, China — assert that sovereign immunity rests on jus cogens principles. Italy maintains the opposite position, setting jus cogens in opposition to sovereign immunity. My larger argument is that the uncertain future and shady past of the jus cogens doctrine ought to make all actors more cautious about invoking it.

What are you working on next?

I seem to be drawn increasingly to projects about competing visions of what international law is, and particularly the divide between Europe and the United States. I believe this divide exists and that there is value in interpreting for each side as it tries to explain itself to the other. Longer term, I am developing an interest on Chinese approaches to international law, and hope to understand better what distinguishes them from those developed by the Soviet Union some 50 years ago.

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