The Political Economy of Jus Cogens
Stephan, Paul B., Vanderbilt Journal of Transnational Law
This Article examines the basis of an asserted jus cogens exception to sovereign immunity. It demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes: (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and tribunals, or fear about the rise of powerful and authoritarian actors in the international system, leads to a much narrower role for jus cogens, and thus broader sovereign immunity.
TABLE OF CONTENTS I. JUS COGENS BEFORE THE INTERNATIONAL COURT OF JUSTICE II. THE EMERGENCE OF THE JUS COGENS CONCEPT III. A FUNCTIONAL ANALYSIS OF JUS COGENS A. Jus Cogens as a Sword B. Jus Cogens as a Shield IV. CONCLUSION
A deep tension exists between sovereign immunity and the contemporary jus cogens doctrine. On the one hand, all states recognize that subjecting a foreign sovereign to another state's legal process, in the absence of consent, flies in the face of an international system based on sovereign independence. In an earlier era it was a lawful cause for war. (1) On the other hand, since World War II there has grown an idea that violations of human rights cannot go unpunished. In the last two decades, abhorrence of impunity has migrated to the concept of jus cogens, the idea that certain norms of international law are so compelling that sovereign immunity falls away. The jus cogens concept does double duty: it both legitimizes an exercise of judicial power that would otherwise violate the settled norms of international law, and forbids sovereigns from immunizing conduct that transgresses a jus cogens norm.
The present dispute between Germany and Italy before the International Court of Justice (ICJ) presents both aspects of the doctrine. The Italian Corte Suprema di Cassazione justified the exercise of Italian judicial jurisdiction over the German state on the basis of the nature of misdeeds for which Germany was responsible. Before the ICJ, Italy also argued that a treaty purporting to settle all claims against Germany arising out of World War II atrocities had no legal effect, again because of the nature of the injuries suffered. The case thus invites a fuller consideration of the origins and functions of the jus cogens concept as a limit on both sovereign immunity and sovereign power. Regardless of how the ICJ ultimately disposes of the matter, what might domestic legal actors--in particular courts--take away from the case?
This Article will not advise policymakers how to resolve the obvious conflict between immunity and jus cogens. Indeed, part of its argument is that persons seized with lawmaking authority (domestic and international courts as well as legislators and foreign offices) should not put too much weight on the opinions of legal scholars, this one included. Rather, it will demonstrate that arguments about jus cogens are ultimately about power, and that strong jus cogens claims have complicated consequences. What works in one group of states (liberal democracies with strong civil societies and independent judiciaries) doesn't work with another (authoritarian states with the resources to resist international pressure).
Among liberal democracies, jus cogens arguments empower particular groups--academics, employees and advisers of international organizations, and national and international judges--at the expense of national officials and legislators. As to these states, expanding and strengthening jus cogens advances the privatization of international law. (2) Between authoritarian regimes and liberal democracies, broadening jus cogens may mean limiting the constraining effect of international law. …