IN PRAISE OF JUS COGENS' CONCEPTUAL INCOHERENCE.

• Author: Ohlin, Jens David

The most compelling account of jus cogens is that it flows from natural law and constitutes the "ethically minimum" content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law--and its explicit invocation of moral content--rather than anything one might find in legal positivism. Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it. One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category's widespread adoption. In the end, the notion that jus cogens is consistent with international law's legal positivism was a useful fiction, a "noble he" that gave us modern human rights law.

L'aspect le plus marquant du jus cogens est qu'il est un derive de la justice naturelle et qu'il constitue le contenu ethique minimal en droit international. Malgre que la justice naturelle ait ete, a une certaine epoque, consideree par la jurisprudence comme une approche acceptable et convaincante, son importance s'est depuis erodee au profit du droit positif. Toutefois, la qualite hierarchique du jus cogens peut etre mieux illustree par l'entremise de certains elements tires du concept de la justice naturelle --et par sa reference explicite a un contenu moral--plutot que tout autre aspect que l'on puisse trouver aupres du droit positif. Bien sur, les avocats internationaux ont refuse vehemment de reconnaitre le naturalisme latent du jus cogens. Bien que regrette par les theoriciens juridiques, cet obscurantisme fut pourtant essentiel a la percee du jus cogens. Dans un monde parallele ou le jus cogens aurait ete validement percu comme un vestige de la justice naturelle, les avocats oeuvrant dans le droit international moderne ne l'auraient jamais accepte. Certains se lamenteront de l'echec de la reconnaissance de la justice naturelle comme fondement du jus cogens puisque ceci a freine le developpement de standards permettant d'identifier les differentes normes juridiques faisant partie du jus cogens. Toutefois, aucun aspect du jus cogens n'offre de criteres clairs et convaincants. De plus, le manque de clarte de ses criteres aurait ete le prix a payer en echange de l'adoption generalisee des categories juridiques. Au final, la notion voulant que le jus cogens soit coherent avec le positivisme juridique du droit international fut une fiction bien utile, un << noble mensonge >>, qui a donne naissance a la version moderne des droits de l'Homme.

Introduction I. From Natural Law to Legal Positivism II. The Positivization of Natural Law III. The Fiduciary Theory of Jus Cogens IV. The Value of Obfuscation Conclusion One of the virtues of Evan Criddle's and Evan Fox-Decent's Fiduciaries of Humanity is that it offers a compelling theoretical account of one long-troubled concept, jus cogens--that part of international law that is obligatory, non-derogable, and which prevails over any other inconsistent legal obligations. (1) Typically, international lawyers agree that the category of jus cogens exists but cannot agree on its conceptual foundation, or better yet, refuse entirely to address the question of its origins. (2) The fiduciary theory holds that state sovereignty is both justified by, and limited by, the fiduciary obligations of the state itself. (3) The state acts as a fiduciary--and must therefore act in the interests of--two groups, one internal to the state and the other external to it. (4) The first group, the internal one, is the people of the state, thus establishing that the state has fiduciary obligations towards its own citizens. (5) The second group, the external one, is humanity at large, thus establishing that the state has fiduciary obligations to other states and foreigners, obligations that can require the state to respect not only the human rights of foreigners but also the requirements of international law in state-to-state relations. (6) This dual-fiduciary relationship provides not only a conceptual grounding for state sovereignty but also explains the limits of state sovereignty. In a sense, the fiduciary theory excavates the inner workings of sovereignty and shows it to represent a "deal" conferred on the state by the international community. States are provided a domaine reserve to control their own territory and their own people, but in exercising that control must act in the interests of their own people and humanity at large.

The fiduciary theory helps explain how and why international law can impose mandatory and non-derogable obligations on the state--obligations that did not flow from the consent of the state through voluntary agreements, such as treaties. (7) Under the fiduciary theory, the category of jus cogens obligations represent the non-derogable conditions of sovereignty that a state owes jointly to its own citizens and to humanity at large. In short, a fiduciary theory provides what international lawyers have long been searching for--a compelling analytical foundation for a category of legal norms that practitioners consider invaluable but which theoreticians find perplexing. Although prior theoretical accounts of jus cogens have come and gone, each was implausible for a variety of reasons, or raised more questions than it answered. (8) So, it would seem that we should herald the fiduciary theory for its ability to answer these thorny questions.

In recognizing the sophistication of the fiduciary theory and praising its account of jus cogens, however, we should avoid the temptation to decry the lengthy conceptual confusion that has come before it. Although conceptual coherence is usually laudatory, in this case, the opposite is true: the failure to recognize the true nature of jus cogens is precisely what allowed the concept to flourish spectacularly over the last half century, thus allowing the human rights revolution to succeed. (9) International law has been, and continues to be, dominated by legal positivism, the idea that the rules constituting international law flow from particular sources of law such as treaties or customary international law, and that these sources provide the content of international law regardless of their moral or ethical content. (10) To identify the content of international legal norms, one can consult these "positive" sources without the need for any deeper ethical or moral investigation. In the case of treaties, one need only ask whether the document was executed and ratified in the appropriate way so as to create a binding legal obligation. In the case of custom, one need only ask whether the custom is backed by the sufficient state practice per formed under a sense of legal obligation, or opinio juris, to qualify as law under the rubric of customary international law. The content of international law is provided by these positive sources without reference to whether these rules are morally or ethically good or not.

The category of legal norms carrying the label "jus cogens" complicates international law's commitment to legal positivism and a theory of sources built around treaties and custom. (11) One of the implications of jus cogens is that some legal norms are obligatory, so that even a treaty that is formally vahd--say because it was executed and ratified in the appropriate manner--would be null and void if its content transgressed the demands of jus cogens. (12) For this reason, jus cogens and legal positivism stand in marked tension, so much so that a committed legal positivist-which most international lawyers are--ought to be extremely skeptical that jus cogens norms exist at all. To support and apply jus cogens, one should, ideally, have an answer to where jus cogens comes from--and it ought to be something more compelling than deus ex machina,

From the perspective of the international lawyer who believes that jus cogens is an essential tool in the toolbox of his or her legal categories, it is perhaps a good thing that the conceptual foundation of jus cogens was not scrutinized more closely in the twentieth century when jus cogens norms were coming to prominence and playing a central role in the human rights revolution in the second half of that century. Had these debates played out explicitly, international lawyers may very well have rejected jus cogens on account of its failure to comply with the demands of the strict legal positivism that reigned during that era, and in many ways continues to hold sway among international lawyers today. This conclusion is deeply counter-intuitive--because it suggests that conceptual confusion is a good thing--but the conclusion is a function of the particular role that a positivistic theory of sources plays within the general structure of international law and the tension between jus cogens and that dominant theory of sources.

Because lawyers were unable to craft a simple answer that explained how jus cogens could be consistent with the dominant theory of the sources of international law, jus cogens has labored in a state of conceptual confusion for decades. But paradoxically, if all of these tensions had been resolved decades ago, the result might have been that lawyers reaffirmed a traditional theory of sources but rejected the emerging notion of jus cogens...