19 Oct YJIL Symposium – Reply to Alexander Orakhelashvili
One of the great benefits of Opinio Juris is that it permits authors to clarify their views in light of thoughtful criticism, and Alexander Orakhelashvili’s comment on our article is certainly all of that. As the author of the leading monograph on jus cogens, namely Peremptory Norms in International Law (OUP 2006), Professor Orakhelashvili is uniquely qualified to address our article’s contribution to the theory and practice of peremptory norms. We are grateful for his remarks and will respond briefly to three objections he presses against our fiduciary theory of jus cogens.
The first objection is that although the fiduciary theory is well placed to explain peremptory norms governing fundamental human rights and principles of international humanitarian law, it cannot explain the peremptory status of the prohibition on the use of force against states (i.e., the prohibition on military aggression). In our paper we suggest that military aggression is tantamount to a crime against humanity (p. 370), and go on to justify the anticolonial right to external self-determination as an analogue of the prohibition on the use of force (p. 373). In both cases, the relevant norms enjoy peremptory status because, under the fiduciary model, a state cannot use force to subject another state or people to its control without implicitly failing to treat foreign nationals as equal moral agents. The fiduciary theory calls for self-rule as the best means of ensuring the secure and equal freedom of individuals within states, and from this commitment follows the prohibition on the use of force.
The second and third objections are intertwined under the claim that jus cogens does not challenge positivism or the requirements of positive law-making. The second objection, roughly, is that international tribunals can and do recognize peremptory norms without reliance on the practice of individual States because jus cogens norms have a “public policy character.” Although Orakhelashvili does not press the point, implicit in his claim is that once we have the public policy foundation of jus cogens in view, and conjoin it with the practice of international tribunals, we do not need another theory (including the fiduciary theory) to explain jus cogens.
Now, there is considerable tension between a public policy defense of jus cogens and positivism as it is generally conceived. For positivists, all law must be traceable to particular law-making sources that are identifiable without reference to moral criteria (e.g., legislatures, the UN General Assembly, treaty-making processes). This is simply the positivist “sources thesis” defended by H.L.A. Hart, Joseph Raz, and many others. Orakhelashvili insists that public policy “exists in national legal systems whether or not it is recognized by the sources of positive law,” and claims “there is no reason why the international legal system has to go the other way.” This may be true, but then public policy would run afoul the sources thesis, and so any conception of jus cogens that relies on Orakhelashvili’s understanding of public policy would fall out of step with positivism.
Much more troubling, however, is reliance on a concept as vague and open-textured as public policy for the purpose of explaining peremptory norms. As we note in our article, jus cogens is under perennial attack by publicists who complain that the concept has neither clear boundaries nor criteria for delineating its borders. The very same complaint applies to public policy, which is why its invocation tends to smack of moral intuition-tugging rather than legal argument. To some it may appear that judges appeal to public policy precisely at the moment they run out of law. For those skeptical of jus cogens on grounds that its foundations are indeterminate and mysterious, an appeal to public policy is unlikely to convince.
Consider, for example, the difficult question of distinguishing non-derogable and peremptory human rights from human rights that can admit of limitation or derogation. Presumably there is a public policy reason for affirming both kinds of human rights, but how might an appeal to public policy permit judges and law-makers to justify treating some rights as derogable and others as non-derogable? We tackle this question in our paper, and propose the following criteria derived explicitly from the fiduciary model: non-derogable rights are those necessary either to the fundamental equal security of individuals (thus, policies of annihilation and systemic domination are barred peremptorily), or to the state’s provision of core components of the rule of law, such as impartial adjudication and the prohibition on ex post facto penal sanctions (pp. 365-68).
The third objection is that the fiduciary theory gives short shrift to the “will of the international community,” as expressed in Article 53 of the Vienna Convention on the Law of Treaties (VCLT) and other multilateral treaties. Orakhelashvili reads Article 53 to require that peremptory norms “be accepted and recognised as such by the international community as a whole,” as evidenced in “universal forms and universal instruments” or consistent state practice in “multilateral treaties, General Assembly Resolutions, and pronouncements of treaty-based organs.” This consensus-based approach to jus cogens is superficially appealing, but only because it ignores the problem of persistent objectors and papers over the distinction between unanimous and supermajoritarian international lawmaking (pp. 339-42). To the extent that “the will of the international community” requires genuine consensus, we must confront the reality that few, if any, of the international instruments that purport to identify particular norms as nonderogable have achieved the “universal” state participation required to generate jus cogens on Orakhelashvili’s theory. If Orakhelashvili believes Article 53 reflects a new jurisgenerative process by which a supermajority of states may approve certain norms as peremptory for all states irrespective of consent, we must recognize the fact that many nations—including the United States—have yet to ratify the Vienna Convention and would not consent to any such supermajoritarian system for international lawmaking. The problem is not, as Orakhelashvili suggests, that our article pays too little respect to the will of states in international lawmaking (indeed, we take state consent—or lack thereof—more seriously than the leading positivist theories of jus cogens). The real problem is that the positivist tradition Orakhelashvili defends cannot explain why any international norms should be treated as peremptory, binding all states within the international community regardless of consent.
A far more persuasive theory of jus cogens, we argue, begins with the related insights that (1) states serve as fiduciaries for all persons subject to their powers, and (2) states’ fiduciary obligations include compliance with peremptory norms. Peremptory norms on this account are not dependent on state consent, nor are they exceptions to state sovereignty. Instead, peremptory norms are constitutive constraints that flow from the state-subject fiduciary relation itself. All states must honor peremptory norms if they wish to satisfy their basic fiduciary duty to establish a regime of equal security under the rule of law.