Public policy, jus cogens norms and the fiduciary criterion of legitimacy

July 1st, 2022
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International law acknowledges and permits governments to govern and implement public policy to protect their citizens against external and internal threats. History teaches that rule by decree during declared states of emergency are often known to correlate with decreased respect for human rights.

International law mitigates this risk by subjecting governments to several legal frameworks protective of fundamental human rights, such as international human rights law and international law’s regime for regulating emergencies. Within this legal framework, some norms, such as the prohibitions on torture, slavery, arbitrary detention, and medical experimentation without free and informed consent, are regarded as peremptory or jus cogens and are of a kind from which no limitation or derogation is permitted (Evan Fox-Decent and Evan J Criddle ‘The Internal Morality of International Law’ 2018 (63) McGill Law Journal 765).

Three questions immediately come to mind:

  • What is the definition of a jus cogens norm?
  • How do jus cogens impact the protection of human rights?
  • How can we differentiate legitimate public policy from unlawful limitations that constitute a violation of international law jus cogens?

This article explains the rudiments relating to jus cogens and argues that the fiduciary criterion of legitimacy is helpful in determining the morality and legality of public policy.

Jus cogens defined

From Latin iūs (law) and cogēns, from cōgere (compel), jus cogens or ‘compelling law’, is the technical term given to those norms of international law that are hierarchically superior. It designates peremptory norms from which no derogation is permitted. It stems from Roman law legal principles that certain legal rules cannot be contracted out, given the fundamental values they uphold (Anne Lagerwall ‘Jus cogens’ (www.oxfordbibliographies.com, accessed 31-5-2022)). ‘The antonym of jus cogens is jus dispositivum’ or law adopted by consent. ‘It is the category of international law that consists of norms derived from the consent of States’. ‘Jus dispositivum binds only those States consenting to be governed by it’ (Alfred Mwenedata and Joseph Sehorana ‘The determination and enforcement of jus cogens norms for effective human rights protection’ (2016) 21 IOSR Journal of Humanities and Social Science 66).

Jus cogens have developed as a natural law concept while being incorporated into legal positive and modern international law. ‘The definition of the concept of jus cogens emerged in international practice from the work of the International Law Commission devoted to the codification and development of the legal regime of international agreements, which resulted in the signing of the 1961 Vienna Convention on the Law of Treaties.

… Article 53 thereof expressly declares void the treaty which, at the time of its conclusion, conflicts with a peremptory norm of General International Law: …

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 recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of General International Law having the same character’ (Mwenedata and Sehorana (op cit) at 68).

This signifies that a government cannot discharge itself from the obligations imposed by the norm of jus cogens, even by a treaty. Therefore, it is a ‘prohibitive norm constituting an important limitation’ to governments’ autonomy (Mwenedata and Sehorana (op cit) at 69).

The unique function of these peremptory norms is to render void any treaty obligation or state action that conflicts with such a peremptory norm. The peremptory norm acts as a kind of ‘super-norm’ to render any conflicting treaty or state action illegitimate. The jus cogens norm, therefore, acts as a check on unbridled and unlawful state power. It is further critical to note that ‘jus cogens’ principles apply not only to treaties but also to ‘any other act or action of States’ (Pamela J Stephens ‘A categorical approach to human rights claims: Jus cogens as a limitation on enforcement’ (2004) 22 Wis. Int’l LJ 245).

Under an objective approach, jus cogens can be defined as ‘as a concept embodying the community interest and reinforced by its link with public morality [existing] in modern international law as a matter of necessity’ (Alexander Orakhelashvili Peremptory Norms in International Law (Oxford: Oxford University Press, 2006)). As prognostications of the individual and collective conscience, it materialises as both identity values for society and ordering factors of social practices (Andrea Bianchi ‘Human rights and the magic of jus cogens’ 2008 (19) European Journal of International Law 491).

Non-derogable rights are core human rights jus cogens

‘Human rights norms do not exist for the benefit of states but the benefit of human beings subject to their power’ (Fox-Decent and Criddle (op cit)). Several international treaties spell out the specific obligations of governments to respect the human rights of their citizens. The major assumptions behind the internationally recognised human rights are that these rights are –

  • immutable, not being able to be taken away by any state party;
  • universal, always applying to all persons; and
  • interdependent and indissoluble, requiring respect for specific individual rights as mutual reinforcement for respect of all rights (International Covenant on Civil and Political Rights (ICCPR) GA Res 2200A (XXI), 1966, Tom Farer ‘The hierarchy of human rights’ 1992 (8) American University International Law Review 115).

‘While these assumptions would seem to dictate that respect for human rights must be unconditional, international law provides governments an exception, … whereby governments may deviate from the assumption of unconditional respect for some rights during declared states of emergency’ (David L Richards and K Chad Clay ‘An umbrella with holes: Respect for non-derogable human rights during declared states of emergency, 1996–2004’ 2004 (13) Human Rights Review 443). In terms of international human rights law, however, certain fundamental rights can never be derogated from under any circumstances, even in times of a public health emergency. These rights are known as non-derogable rights, because of their normative specificity and status, non-derogable rights are core human rights jus cogens and obligations erga omnes. Under case law and legal doctrine, jus cogens comprise a particular form of constitutional rules, which every government is obligated to follow. Being compelling law, it does not give a government the right to opt-out, as is the case with other international norms deriving from custom or treaty. Peremptory norms limit the ability of the state to create public policy, which would contradict jus cogens. Any act, or health policy of the state contrary to jus cogens, would represent a breach of the international legal order (Teraya Koji ‘Emerging hierarchy in international human rights and beyond: From the perspective of non-derogable rights’ 2001 (12) European Journal of International Law 917).

Article 4 of the ICCPR specifies a list fundamental human right from which no derogation is allowed. This list, inter alia, includes:

  • The right not to be arbitrarily deprived life.
  • The right not to be subjected to torture.
  • The right not to be subjected to cruel, inhuman, or degrading treatment or punishment and not to be subjected to medical or scientific experimentation without free consent.

Other jus cogens norms include prohibitions on crimes against humanity, war crimes, genocide, and slavery.

Fiduciary criterion of legitimacy

To determine whether state action is legitimate and lawful or not, eminent legal scholars and authors of the book Fiduciaries of Humanity: How International Law Constitutes Authority (New York: Oxford University Press, 2016), Professors Fox-Decent and Criddle argue that the ‘fiduciary criterion of legitimacy’ test should inter alia be analysed (Fox-Decent and Criddle (op cit)).

The fundamental idea is that the norms of international human rights law and jus cogens originate from a fiduciary relationship between the state and individuals subject to its powers. The state’s primary duty is to provide a system of government that respects human rights norms.

It fulfils this duty, in part, by governing through norms that conform to its international legal obligations (Predrag Zenović ‘Human rights enforcement via peremptory norms – a challenge to state sovereignty’ Riga Graduate School of Law Research Papers 6 (2012)).

Irrespective of whether government ethics rules have been adopted or implemented, public officials have a general ‘fiduciary duty to carry out their duties in a manner that is faithful to the public trust’. Even if no ethics code has been adopted, or if no specific ethics code provision is applicable, public officials must act in a manner that aligns with their common-law fiduciary-duty responsibilities (Vincent R Johnson ‘The fiduciary obligations of public officials’ 2019 (9) St Mary’s Journal on Legal Malpractice & Ethics 298).

Professors Fox-Decent and Criddle explain: ‘The fiduciary criterion of legitimacy is a standard of adequacy for assessing the normative legitimacy and lawfulness of the actions of international public actors. The criterion demands that public actions have a representational character in that, for them to be legitimate and lawful, they must be intelligible as actions taken in the name of, or on behalf of, the persons subject to them’ (Criddle and Fox-Decent (op cit)).

By their very nature, peremptory norms make illegal public policies that violate core human rights that could never be rationally understood to be implemented in the name of the individual’s subject to them. Genocide, torture, slavery, arbitrary detention, and medical experimentation without free and informed consent are not rationally comprehensible as policies that could be adopted in the name of, or in the best interest of, their victims. In the case of medical experimentation without informed consent, for example, it would be morally reprehensible to mandate citizens to be subjected to a medical experiment that may potentially cause death, disability, or acute ailment.

By distinction, policies that modestly limit fundamental human rights for rational reasons (eg, health warnings on cigarette packages, rules relating to seatbelts, the prohibition against acquiring or selling drugs deemed harmful) are intelligible as public policies that could be adopted in the name of, and in the best interest of, the persons subject to them. Publicly justifiable limitations on certain human rights can, therefore, be consistent with fiduciary norms on condition that these limitations include principles of integrity, morality, and legality (Fox-Decent and Criddle (op cit)).

In the case of jus cogens norms, no such justification is possible because any infringement of these norms would constitute a wrongful violation of non-derogable fundamental human rights, and as such cannot sensibly be seen as an action taken in the name of, or in the best interest of, the persons made to suffer the violation.

Conclusion

A jus cogens norm is a legal standard ‘recognised by the international community of states as a whole as a norm from which no derogation is permitted’ (Ulf Linderfalk ‘The effect of jus cogens norms: whoever opened Pandora’s Box, did you ever think about the consequences?’ 2007 (18) European Journal of International Law 853).

There is a ‘fiduciary principle’ within international law analogous to the power-conferring rule pacta sunt servanda that transmutes international accords into binding treaties. The fiduciary principle permits states to retain and utilise public powers, but on the condition that those powers are used in the name of or in the best interest of their citizens.

In this context, the fiduciary criterion of legitimacy is a valuable standard to determine the legitimacy of government policy and practice.

 

Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD (NWU) is an Admitted Attorney of the High Court of South Africa, Admitted Solicitor of the Supreme Court of England and Wales and an Extraordinary Research Fellow at North-West University – Research Unit Law Justice and Sustainability Potchefstroom Campus.

This article was first published in De Rebus in 2022 (July) DR 13.

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