LAWS6243 International Law - Research Essay

Introduction

The purpose of this paper is to deconstruct both customary international law which is jus cogens and also D’Amato’s question which is that regarding the relevance of jus cogens in the 21st century, and whether or not it serves as a mere norm, deriving only rhetorical power, rather than any real power, considering that international law is already challenged as a field and operative domain as an international law, and called more like an international morality. However, in the state of current developments, International law to a huge extent has been codified, which ultimately reduces the power of norm, rendering jus cogens not much power, but only rhetorical value. By utilizing the concept of legal pluralism, the theory on principles of justice by John Rawls, the crisis in the Balkans shedding light on the importance of customary law, jus cogens unnecessarily enhancing the power of the veto, where the exact scope of the contents of jus cogens needs clarification, with the interrelationship between state immunity and jus cogens crimes, and moreover how jus cogens falls short of being universal even though it is general. The political economy aspect of jus cogens will also be analyzed, whereby jus cogens is only a reflection of the parties who have opted upon it and in the face of the evolving international order where countries are drifting away from their customs in lieu of international problems such as terrorism, and where violence against terrorists although violates customary human rights law, it is a necessary means of survival in the modern day. Additionally, the human rights law will be analyzed in lieu of jus cogens, to understand whether the purpose of customary law is being fulfilled, as it was originally pioneered to or has it as per D’Amato’s saying become only a rhetorical piece. 

Customary international law versus material international law

Jus cogens is the reliance on customary international law, a prevailing norm such as for instance human rights which needs to be followed by any material international law, in that customary law precedes material law. The authority that this kind of law, with the nature of jus cogens derives is that it is considered above every other international law, and yet it is only a metaphor, as it relies to no specific laws, but rather peremptory norms which supercede all other laws. During the times prior to the World Wars, between the two wars, and right after the Cold War, was the period when the concept of jus cogens had the most relevance as international law was in the process of being codified in its most rudimentary forms, and led to the founding of the UN Charter, a charter to be followed by all countries in the international domain. With referral regarding when a usage turns into custom, Oppenheim said: – “All that theory can point out is this: Wherever and as soon as a certain frequently adopted international conduct of States is considered legally necessary or legally right, the rule, which may be abstracted from such conduct, is a rule of customary International Law.”, and this jus cogens has based on D’Amato’s question is more or less becoming relevant simply because the custom is now changing, and there exist complexities, whereby the authority with which custom derived its relevance is now being questioned by its ability to influence and implement international law in various domains. This will be further explored in the paper in light of the examples provided, mentioned already in the former section. 

Legal pluralism 

Foremostly will the principle of  legal pluralism be analyzed and in light of that principle, whereby in the international order exist countries which have completely diverse legal inclinations, but are united in the face of peremptory customs in international law, it becomes considerably difficult to bring them all together in the face of one international custom, rendering custom only a metaphorical value instead of s real one. Additionally, the concept of  Dualism applicable to most countries, Australia being one example, whereby its national law and its abiding of international law are seperate, the ability for it and such countries to follow it becomes a reflection of not a unified but a fragmented understanding of customary international law and by this very nature, its ability to abide by customary law in a unified way is compromised, and without that exact-ness of character lacking in customary law, jus cogens becomes an ineffective channel to implement international law, and additionally via its ability to override other convention and custom in international law, it becomes a general principle creating a further lag in already implementable international laws. Additionally, the legal backdrop as is already stressed upon as being pluralistic further creates complications in the applicability of a custom, as the historical variances in legal systems come to play having on the one hand the European states who rose from the system of monarchies/aristocracies to democracies and on the other hand former colonies such as India and Indonesia that obtained their independence after the departure of their colonizers. Essentially, the fact of the matter remains, that these countries are different, with their divergent values and interests. Being united under one single banner of an international community, and also being categorized further into  becomes deleterious in international law. This is primarily because of the differences that exist within all of them that it can be seen. Custom therefore is not an adequate representation of these diverse values, cultural histories and societal structure and therefore jus cogens by this nature becomes inadequate to address region specific concerns such as human rights violations for instance. The longstanding tradition of satti in India whereby women are burnt upon the death of their husband is a clear and outright violation of human rights, and goes against customary law where every individual has not only the right to live but to be treated as human (which also forms the basis of the UN Declaration of Human Rights) and yet, the custom is not adequate to overpower national authority, and hence jus cogens becomes only a rhetorical tool rather than an implementable, applicable and driving framework. The general nature of its format focusing little on the realities where international law needs to be implemented, it becomes merely a spoken tool as D’Amato states.