Jus Cogens Case Study

NIRMA UNIVERSITY

INSTITUTE OF LAW TERM ASSIGNMENT II

ON

“JUS COGENS IN CONTEXT OF INTERNATIONAL LAW”

IN THE SUBJECT OF

PUBLIC INTERNATIONAL LAW

SEM. VIII

SUBMITTED TO:

Mr. NADEEM KHAN

ASSISTANT PROFESSOR

SUBMITTED BY:

DEEPAK TIWARI

11BBL118

SEC. - D

JUS COGENS IN CONTEXT OF INTERNATIONAL LAW

INTRODUCTION

The term “jus cogens” refers to norms that command peremptory authority, overriding conflicting treaties and custom, in international law. The modern international law doctrine of jus cogens asserts the existence of fundamental legal norms from which no derogation is permitted.'1 The status of norms of jus cogens as general international law, Onuf and Birney argue, Is not a logical necessity so much as a compelling psycho-logical

He suggested a provision Article 15 of his draft that a treaty, or any of its provisions, is invalid if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice."

In his Comment he made it clear that the test was not inconsistency with international law pure and simple but inconsistency with such overriding principles of international law which may be as constituting principles of international public policy." Lauterpacht's successors as Special Rapporteurs of the International Law Commission, Sir Gerald Fitzmaurice and Sir Humphrey Waldock, introduced the concept of consistency with a general rule or principle of international law having the character of jus

Certain United Nations proceedings on the Cyprus question have also a bearing on the difficulty. There appears to be no case on record in which an international court or arbitral tribunal decided that an international treaty was void because of repugnancy to a peremptory rule.

In the case of the S. S. Wimbledon 15 the issue was whether Germany, as a neutral in the Polish-Russian war, was in 1921 under the obligation to permit illegal imports planned for Poland to pass throughout the Kiel Canal. The Court determined that Article 380 of the Peace Treaty of Versailles applied, beneath which the Canal was to be maintained open to the vessels of all nations at peace with Germany. Mr. Schiicking, national judge, dissented. One of his arguments was the consideration that, by permitting the passage of the ship carrying contraband, Germany would have violated the duties of a