Jus Cogens Norms and The Historical Accident of Influential States
I know that some other international law professors are using this blog as a study aid for their public international law classes. And many of those law professors are using the Dunoff, Ratner and Wippman book, International Law: Norms, Actors, Process. So I wanted to raise a minor issue that came to mind today as I was working my way through the Cyprus material. In that section they discuss the issue of Article 53 of the Vienna Convention and treaties that are void because they violate a jus cogen norm. The specific topic concerned whether a particular treaty provision authorized Turkey to take military action to enforce the treaty, and Cyprus’s argument that it could not because to do so would violate a jus cogens norm against unlawful use of force under Article 53. Then in the notes the book identified possible candidates for jus cogen norms, including unlawful use of force, piracy, slave trading, and genocide.
Having given a fair bit of thought to jus cogens norms as of recent, it got me thinking. If jus cogens norms are higher norms of universal appeal, norms that may be thought of as part of the natural order of things, doesn’t it seem a little odd to include within that category the obligation for all non-defensive just wars to secure the approval of China and Russia?
I can’t help but think that a philosopher creating an international system from a Rawlsian original position would accept the notion of jus cogens norms. And he likely would agree that a norm like genocide or slave trading should rise to the level of a non-derogable obligation. But I rather doubt that this hypothetical philosopher would conclude that a jus cogens norm would include the obligation to secure the approval for all non-defensive just wars from a particular country that by historical accident happened to be influential at a particular moment in time, but that otherwise was not especially recognized for its wisdom, judgment, authority, or democratic legitimacy. (I’m not intending to single out any particular country when I say this). It just seems counter-intuitive to say that that country’s approval is required as part of the natural order of things and that no state can resist the obligation to secure their blessing if it wishes to wage a non-defensive just war. (I am assuming that from a philosophical perspective some wars may be just even if not waged for the purpose of self-defense, i.e., to correct a grave public evil such as the massive violation of the basic rights of whole populations).
I think I know a somewhat persuasive response to this question, but first wondered if others had any thoughts.