Protecting migrants through essential human rights: The argument from jus cogens

In his previous articles, Seraphus director Christopher Desira has looked at the concept of migration, the dynamic between migrants, the international community and the state, as well as the shortcomings of these entities in protecting the latter. In this article, Christopher presents the legal concept of ‘jus cogens’ and begins to explore how appealing to these principles can allow us to form stronger protections for migrants everywhere and establish the obligations of the state in providing those protections.

When it comes to discourse on migration, and advocating for extending more rights to migrants, we are increasingly presented with platitudes or statements too broad to lead to structured solutions. One way of exploring opportunities for practical change is through the lens of human rights and international law. By appealing to foundational principles of the law, such as jus cogens, we can begin to challenge the existing dynamic of international law and suggest avenues through which we can further codify the basic rights of migrants.

Jus cogens (or ius cogens) is a Latin phrase that translates literally as “compelling law.” It is a term applied to norms from which no deviation or breach is permitted, even by way of agreements. It comes from the idea that certain legal rules cannot be contracted out, given the fundamental values they uphold. Some examples of jus cogens norms include prohibitions on crimes against humanity, genocide, slavery and human trafficking. 

Natural law thinking, by way of jus cogens, found its way into positive international law through Article 53 of the Vienna Convention on the Law of Treaties of 1969.  Jus cogens is a set of clearly expressed legal norms of the international community, which has moral or humanitarian connotations because a breach of these legal norms would have morally deplorable results that the international community as a whole considers unacceptable. It is important to note however, that jus cogens are not the same as international human rights law, though there is significant overlap.

The rules of jus cogens are therefore rules which derive from principles that the legal conscience of mankind deems absolutely essential to coexistence in the international community. Through these principles, the rules of jus cogens can ascribe an ethical consensus namely, the international law of humankind and therefore, overcome the problem of sovereignty because it provides protection from states. 

As discussed previously, refugee rights are not useful to migrants. Unlike jus cogens, refugee rights are a set of obligations which states agree to apply within their territory, demonstrating their sovereign equality. But some claim that parts of these refugee rights are already existing or emerging as jus cogens, including the prohibition of slavery, prohibition of discrimination and inhuman treatment. Other aspects of refugee rights are seen as existing as jus cogens based on rights in the American Convention of Human Rights, such as freedom from arbitrary detention, rights of the family, a right to nationality and the right to participate in government.

This interrelation is possible because both the rights one has by being human and jus cogens rights are considered to have the same source: natural law.  Human rights enforcement can therefore be advanced through the concept of jus cogens. Immune to the barrier of sovereignty, it also spreads the compelling character of the jus cogens norms to states which are not signatories of certain regional or universal legal frameworks.  

The conception of jus cogens has stepped firmly beyond the Vienna Convention, and the many multilateral treaties that contain peremptory norms after it has been introduced by the Special Rapporteur dealing with state responsibility within the International Law Commission.  Jus cogens appears to be spreading, embodying the transcendent common good of the international community, but the question in this article is, has it spread far enough to impact rights of migrants?

The basis for international relations was universally accepted to be the commonality of humankind and the mutual benefit of states.  It is in accordance with this dynamism that the rights of the human person take political and social form in the community.  The dignity of man can be said to be the standard that the international community is trying to achieve. 

On that basis, human rights in its entirety should be incorporated into jus cogens norms, given that these issues fall within the jus cogens of law, peace and humanity. But the absence of case law to demonstrate this suggests otherwise.  

Case law is not necessarily required to construct a compelling argument for establishing more rights for migrants. Jus cogens norms reflect the developing interests of the international community as a whole, its norms that protect humankind and the existence of the international community in equal ways.  This reflects the reality that states and peoples are not isolated, they communicate, integrate and exchange among each other. They do this through the mobility of information, material goods, finance, and most of all, people. That is why it is important to show that certain human rights do represent jus cogens, since it brings the legal duties otherwise left to the state to the international community as a whole and, with it, gives legitimacy to the international community. 

Is this context enough to simply announce such rights as jus cogens or is the subject matter with which it deals, what gives it the character of jus cogens?    Can the right to migrate with dignity and equality become jus cogens? Or perhaps the argument can be formed by appealing to the basic right of equality before the law?

The key issue that surrounds the identification of norms with jus cogens, is which justification theory is preferred, from natural law, public order theory, and customary law, or even a new method entirely. It may well be that this is an area of the law where the status of the norm, given the values at stake, should be treated as self-evident and identifiable based on intuition?