JUS COGENS

  • Category
    India & world
  • Published
    21st Jan, 2020

Context

Recently, the term JUS COGENS was used by Iranian foreign minister in response to the President Trump’s threat to attack Iran’s cultural sites.

About

  • Legally, JUS COGENS means a principle of international law that is based on values taken to be fundamental to the international community and that cannot be set aside.
  • The US has threatened to target few historical sites if Iran retaliates to attack US in revenge AS US forces killed Iranian top commander Solamani in a drone attacck. This is a breach of JUS COGENS as targeting cultural sites amounts to war crime.
  • The jus cogens rules have been sanctioned by the Vienna Conventions on the Law of Treaties of 1969 and 1986. According to both Conventions, a treaty is void if it breaches jus cogens rules.
  • Jus Cogens or ius cogens, meaning “compelling law” in Latin, are rules in international law that are peremptory or authoritative, and from which states cannot deviate.
  • These norms cannot be offset by a separate treaty between parties intending to do so, since they hold fundamental values.
  • Today, most states and international organisations accept the principle of jus cogens, which dates back to Roman times.

Vienna Convention and JUS COGENS

  • Article 53 of the 1969 Convention says: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.
  • For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm.
  • From this no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
  • Article 64 says- If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
  • Besides treaties, unilateral declarations also have to abide by these norms.

What is included in JUS COGENS?

  • So far, an exhaustive list of jus cogens rules does not exist.
  • However, the prohibition of slavery, genocide, racial discrimination, torture, and the right to self-determination are recognised norms.
  • The prohibition against apartheid is also recognised as a jus cogens rule, from which no derogation is allowed, since apartheid is against the basic principles of the UN.

What is the problem with targeting cultural heritage?

  • Following the unparalleled destruction of cultural heritage in World War II, the nations of the world adopted at The Hague in 1954, The Convention for the Protection of Cultural Property in the Event of Armed Conflict.
  • It was the first international treaty focussed exclusively on the protection of cultural heritage during war and armed conflict.
  • The Convention defined cultural property as “movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites….”, etc.
  • There are currently 133 signatories to Convention, including countries that have acceded to and ratified the treaty.
  • Both the United States and Iran (as well as India) signed the Convention on May 14, 1954, and it entered into force on August 7, 1956.
  • The Rome Statute of 1998, the founding treaty of the International Criminal Court, describes as a “war crime” any intentional attack against a historical monument, or a building dedicated to religion, education, art, or science.

Conclusion

Both warring countries must de-escalate and respect the international laws. India must play a role of mediation to find peace between the warring Iran and US.

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