The Religiosity of Jus Cogens: A Moral Case for Compliance?

Abstract

Jus cogens can be defined as law that imports notions of universally applicable norms into the international legal process (Charlesworth & Chinkin, p. 118). Although it is clear from the Vienna Convention on the Law of Treaties that any treaty provision that contravenes jus cogens is invalid, and despite the universal acceptance that jus cogens standards may never be breached, substantial difficulty continues to surround this area of international law. In particular, questions relating to the `why' of jus cogens are tricky to answer. Why should these particular rules and rights have a higher status in international law than others? Why should states have to comply with these rules regardless of the surrounding circumstances and their security (and political) exigencies? Why should this category of law exist at all?

The push towards torture in recent years has exposed the theoretical vulnerability of jus cogens. In a state of global uni-polarity the United States of America, joined by its partners in the Coalition of the Willing, has launched a so-called "War on Terror" in which international norms have all too often appeared to be low on the list of priority. United States' state practice (and that of other states) in the area of torture, in particular, has clearly shown the need to create a viable theoretical framework around the imposition of absolute rules of jus cogens on states, even in times when abidance by those rules might seem to jeopardise the immediate security imperatives of the state.

This paper considers one way in which such a theoretical framework might be developed. The challenge is approached by means of a series of ideas. The first idea is simply that jus cogens exists and includes within it certain rights. The second claim is twofold. First that religion matters to people, and second that rights matter to people. The third idea is that jus cogens is essentially religious embodying, as it does, the basic protections that represent a consensus between different religions about the basics of human dignity. The fourth idea is that jus cogens is in danger and that, if we care for it and its capacity to ensure the basic circumstances for individual security and flourishing despite the surrounding conditions, we must do something about this threat. The final idea is that recognising the religiosity of jus cogens could be the means by which we find a different way of thinking about the obligation to comply.

I should stress that this chapter is designed to operate as a question, or series of questions, as opposed to a solution. As a result of the tense relationship between rights and religion many of us, me included, are reluctant to put our faith in a connection between the two. However the words of another discomforted writer considering similar questions, Jeffrie Murphy, are equally applicable to this author. Murphy remarks that it is, for him, very difficult - perhaps impossible - to embrace religious convictions - [but] - the liberal theory of rights requires a doctrine of human dignity, preciousness and sacredness that cannot be utterly detached from a belief in God or at least from a world view that would be properly called religious in some metaphysically profound sense (Afterward: Constitutionalism, Moral Skepticism and Religious Belief, in A. S. Rosenbaum, Constitutionalism: The Philosophical Dimension, (Greenwood Press, 1988), p. 248).

Keywords: jus cogens, torture, religion, religiosity, War on Terror, torture evidence

JEL Classification: K19, K33