Jus Cogens are higher norm in international law, which binds the states independent of states treaty obligation, because international law is largely informal and consent oriented, jus cogens norm play a crucial role in regulating the conduct of states; however, only very few norms have attained the status of jus cogens, one of which being right to life, besides being a jus cogens norm right to life is acknowledged as a non-derrogable human right as codified under Article 3 of Universal Declaration of Human Rights(UDHR) and Article 6 of International Covenant on Civil and Political Rights(ICCPR). The prime contention of this short piece is to gauge the legality of jus cogens norm in implicating China for its active role in the spread of COVID-19 both within China and abroad; furthermore, the write-up attempts to decode the application of jus cogens in the context of COVID-19 both in the domestic courts and the international court of justice(ICJ).
Application of Jus Cogens in the backdrop of COVID-19
The application of jus cogens in the ICJ is bombarded with academic debates and controversies, the first instance where the ICJ had an opportunity to test the legality of jus cogens was in the case of Democratic Republic of Congo v Rwanda,(DRC v Rwanda) the case concerns the severe breach of international law, united nations principles and several treaties by Rwanda in the territory of DRC, however Rwanda opposed the jurisdiction of the ICJ by cited its reservations to treaties invoked by DRC albeit some of the violations were jus cogens norm, therefore the ICJ had to decide between jurisdiction (based on consent) and jus cogens breach committed by Rwanda, the ICJ sided with the former by underscoring the fact that consent trumps international law, since both jus cogens and jurisdiction are distinct subject matter, the secondary treatment meted out to jus cogens was condemed by several scholars in the aftermath of the DRC judgment, with regard to invoking jus cogens norm of right to life and dragging China to the ICJ, the proposition seems far-fetched as China would undoubtedly object to the ICJ's jurisdiction. Further, jus cogens cannot be a basis for establishing jurisdiction at the ICJ; hence it's conspicuous that jus cogens norm is primarily substantive in nature and jurisdiction is procedural, the distinction was enumerated in detail by the ICJ in the Jurisdictional Immunities Case (Germany v. Italy) thus a state intending to drag China to the ICJ have to overcome the procedural hurdle before espousing jus cogens. As I have recently pointed out in one my recent post 'The fundamental problem that states would encounter while pulling China to the ICJ is the establishment of a dispute, under Article 36(1) of the ICJ Statute. The function of the ICJ is only to decide international law disputes that states submit, popularly called 'non ultra petita rule', and according to Article 36(1) of the ICJ Statute, the court's jurisdiction extends to all "legal disputes" that may arise between states party to the Statute having made a declaration under that provision. The existence of a dispute between parties is thus a condition of the court's jurisdiction, and the burden of proving the existence of the dispute falls on the applicant. Therefore, any state contemplating ushering a claim against China has to establish the existence of a dispute. The ICJ has applied stringent interpretation when determining the existence of a dispute. In the Marshall Islands case, the ICJ rejected the argument of the Marshall Islands by a vote of nine to seven on this precise question. Only if the issue of 'dispute' is settled can the ICJ proceed on the merits of the case.' Once the question on jurisdiction is settled, which is a procedural requirement, states could invoke the substantive debate, i.e. jus cogens norm. Moreover, the procedure for triggering jus cogens norm at the ICJ is codified under Article 66(a) of Vienna Convention on Law of Treaties (VCLT) which states that "Any one of the parties to a dispute concerning the application or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration"; therefore it is evident that invoking jus cogens is a lengthy and cumbersome mechanism.
Right to Life as Jus Cogens Norm and China
The failure on the part of China to step up its fight against COVID-19 has resulted in the endless suffering and loss of lives across the globe; thus China could be held accountable for its human rights breach within China and extra-territorially. One might maintain that inter-state complaint through the United Nations Human Rights Council (UNHRC) against China could be one available option; however the mechanism is inadequate as the decision in the UNHRC does not create a binding obligation on China; therefore the sound alternative on the parts of the states is approaching the ICJ by triggering the jus cogens norm provision, notwithstanding the jurisdictional hurdle, further International Criminal Court (ICC) realistically speaking does not possess the jurisdiction as its mandate is limited to war crimes, crimes against humanity, genocide and crime of aggression. The settled point is human rights in modern international law has extra-territorial application as observed by the judgments of the European Court of Human Right (ECtHR) and General Comment 31 of ICCPR, this being the case, the next question that might prop up is since human right are extra-territorial Can China be sued in the domestic courts? The simple answer is 'No' because of the principle of 'State Immunity' (pari in parem non habet imperium). The squabbling between jus cogens versus state immunity has resulted in the courts upholding immunity over the human right vis-à-vis jus cogens, this was evident in the Al-Adsani Case, wherein the ECtHR observed that it is not able to determine in International Law instruments, judicial authorities or any other substance before it any solid grounds to conclude that, as a matter of international law, a state is no more immune from civil suit in courts of another State where the torture is allegedly committed. One might argue that the abovementioned case is civil in its application, which has to be distinguished from a criminal case, but the ICJ in the Congo v Belgium held a similar view as the Al-Adsani Jurisprudence.
The possibility of the ICJ condemning China on COVID-19 is remote because of the jurisdiction constrain together with the enormous authority wielded by China in the United Nations Security Council (UNSC), despite the shortcomings states could drag China to the ICJ by opening the jus cogens argument, complementing the World Health Organisation(WHO)Constitution or International Health Regulations (IHR), although the probability of crossing the jurisdiction phase is slim, the international community could send a strong message to China. Further, the proceeding to ICJ through jus cogens may result in non-recognition of China as codified under Article 41 of Draft Articles on Responsibility of States for Internationally Wrongful Act, 2001.
Views Are Personal Only.
(Author is Assistant Professor of Law at The WB National University of Juridical Sciences)