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Bosnia-Herzegovina and the Legitimacy of Jus Cogens.

 Bosnia-Herzegovina and the Legitimacy of Jus Cogens. 

Jus cogens or peremptory norm means a body of fundamental principles of international law which binds all states and does not allow any exceptions. It is basically a compilation of norms that lays down the international obligations which are essential for the protection of the fundamental interest of the international community and any violation of these norms is thereby recognized as a crime against the community as a whole.

It is binding upon all the members of the international community in all circumstances. Jus cogens imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment, prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried out by the states or international organizations that contradict human dignity and rights will offend the concept of jus cogens and thus, be void. It can be said that jus cogens exist to protect and uphold human dignity and rights.

Origin

It stemmed from the idea of a binding law which would be in alignment with natural law and would render contrary customs and treaties invalid. This idea led to the existence of hierarchical superior norms that would invalidate the treaties and customs. The doctrine of Jus cogens was initially defined in Article 53 of the Vienna Convention on the law of treaties 1969. It was later stated as a customary principle but Article 53 of the Vienna Convention, however, contains no reference to any element of practice

Bosnian Case: View of Justice Lauterpacht 

In the case of Bosnia and Herzegovina v Serbia and Montenegro [2007], Serbia was alleged to have attempted extermination of the Muslim population of Bosnia and Herzegovina which led to violations of the Convention on the Prevention and Punishment of the Crime of Genocide, thereby invoking an article of the genocide convention. It was unanimously held in this case that Serbia was neither directly involved nor was complicit in it but it rather committed a breach of genocide convention by failing to prevent it from occurring, he genocide convention being a part of jus cogens.

In this case, Justice Lauterpacht was in favour of the decision and defined jus cogens as a concept which is superior to both customary law and treaty as it stands on the very fundamentals of natural law and humanity. He also associated jus cogens with the general principles of law and said that irrespective of its origin, jus cogens encircles all the fundamentals of a necessary law at the international level and hence, is the superior-most in  hierarchy. 

Conclusion

The jus cogens norm has retained its strong position since 1969. The principle of jus cogens has generated hope that developing standards of law would result in a higher realization of justice in domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations. A major result of that hope has been the increasing vitality of the principle of jus cogens and its developing dominance in international law. The use of jus cogens in human rights actions should overcome the court invoked barriers to redress the grievances and should act as a compelling factor in the progressive enforcement of human rights.

 

 

 


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