Introduction
Jus Cogens’ is a peremptory norm of international law that has a universal applicability. It has been defined under Article 53 of the Vienna Convention on the Law of Treaties, 1969 (“VCLT”) as a norm that has been accepted and recognized by the international community of states. Furthermore, derogation from this norm is prohibited, unless the reason for derogation is the emergence of another jus cogens norm. Moreover, Article 41(2) of Responsibility of States for Internationally Wrongful Acts, 2001 clarifies that no State shall recognise a serious breach of a peremptory norm.
On the other hand, the ‘Basic Structure’ doctrine is one that has been formulated by the Indian courts to demarcate and limit the extent to which the Constitution can be amended by the legislature. The doctrine was first stipulated in the landmark case of Kesavananda Bharti v. State of Kerala, where the court stated that although the legislature had the authority to amend any part of the Constitution, including the fundamental rights, yet it could not amend certain fundamental features, or the basic structure, of the Indian Constitution.
‘Jus cogens’ and ‘basic structure’ might, at first, seem to be completely exclusive of each other since both are a part of distinct legal orders. While jus cogens is a principle of international law governing the conduct of nations, the basic structure principle forms a part of the municipal law of India with the sole function of limiting the amending powers of the government. Furthermore, while jus cogens finds a mention in a statute namely the VCLT, the basic structure doctrine has been a complete judicial innovation. However, despite these differences, both these principles share multiple common features. The primary purpose of this article would be to draw an analogy between jus cogens and the basic structure doctrine, thereby highlighting similarities in their formation, effect, interpretation and justification.
Formulation of the substantive content through judicial rulings
The substantive content of both these concepts is not codified in any statute. Although Article 53 of the VCLT defines jus cogens, it does not lay down any list of norms that may qualify as jus cogens. In fact, authors like Browlie, have primarily criticized jus cogens for its substantive ambiguity.
The substantive content of both the jus cogens norms, as well as the basic structure doctrine, have been laid down by the courts through various judgments. For instance, through different cases, the International Court of Justice (“ICJ”) has categorized the prohibition of the use of force, prohibition of torture, and prohibition of genocide, as jus cogens norms. Similarly, the Supreme Court of India (“SC”) has held, inter alia, secularism, the power of judicial review, and the limited power to amend the constitution itself, to form a part of the basic structure of the constitution.
The Indian courts follow the doctrine of stare decisis and hence are bound by the rulings on basic structure in previous decisions, unless the same is overturned by a larger bench. Although the ICJ is not bound by its previous rulings, it must be noted that Article 38(1)(d) of the Statute of the ICJ states these decisions to be a subsidiary source of international law. More importantly, in contemporary times ICJ has attempted to stick to its previous decisions, and not deviate unless there is a substantial reason to do the same. Furthermore, Article 53 VCLT also states that a jus cogens norm can only be deviated from, if there has evolved a new norm the character of which is similar to a jus cogens norm.
Hence, it is visible that both the basic structure principles as well as the jus cogens norms would, once formulated, continue to remain in effect unless they are actively overturned by a larger bench in the former, or the emergence of a new jus cogens norm in the latter, case. An additional benefit of this methodology of incremental adoption is that the issue of false positives is addressed, since enough flexibility remains to bring about a change in these principles with evolving times. Therefore, the manner of formulation of the substantive content of both these concepts is similar, and is such that provides them with both stability as well as flexibility.
In pursuance of the aims of deliberative democracy
Both the jus cogens norm as well as the basic structure principle, seek to further the goals of a deliberative democracy. Deliberative democracy entails any political decisions being taken on the basis of fair and reasonable discussion and debate. The aim is to ensure that all stakeholders are given an equal opportunity to be a part of such deliberation and put forth their interests. The collective decision then reached would be fair, legitimate and conform to the ultimate ideal of self-government.
It has been argued by constitutional law scholars like Gautam Bhatia that while adjudicating upon Basic Structure claims, the aim of the courts should be to act as a mediator in the larger process of deliberative democracy. They must ensure that the structural conditions which make democracy meaningful and worthy are maintained. It is with this aim in mind that the judge must decide whether a particular principle would form part of the basic structure of the Constitution.
In fact, the very essence of common law has been held to be self-government through collective action. Common law has evolved through customs and has supported the Burkean idea of incremental evolution over sudden change. Hence, the task of the Indian judges, even while postulating the principles that would form a part of the basic structure, is not to ‘create’ these principles, but merely to ‘find’ them within the pre-existing community law.
A similarity can be found even with the principle of jus cogens. Article 53 VCLT states that to qualify as jus cogens, a norm must be “accepted and recognized by the international community of States as a whole”. The same has been interpreted to mean the requirement of a consensus between a very large majority of States. This depicts that the judges of the ICJ are not left with the sole authority to decide whether a norm can be elevated to the status of jus cogens. Before any such measure can be adopted, a consensus between the states, who have traditionally been considered to be the primary stakeholders in such cases, must be present. In fact, authors like Weatherall highlight similarities between social contract and jus cogens. They believe that jus cogens reflects those values that the international community deems to be important for its maintenance. This is in line with the aims of deliberative democracy and reflects the ideals of self-governance since a jus cogens status can be provided to a norm only when the international community desires the same.
The effect on other legal provisions
Article 53 of the VCLT states that any treaty which is in violation of a jus cogens norm would be void and hence unenforceable. Furthermore, Article 64 of the VCLT states that if a new jus cogens norm emerges, then a pre-existing treaty which is in conflict with the same becomes void and inoperative.
In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) the ICJ stated that Article 103 of the UN Charter, which provides a precedence to the obligations in the Charter compared to other international agreements, does not extend to conflicts with jus cogens thereby. It thereby held that jus cogens norms were to be given the most priority and any rule in contravention with the same would stand void. Furthermore, in the case of Prosecutor v. Anto Furundzija, the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) confirmed the jus cogens status of prohibition on torture. The ICTY held that due to this higher rank, the jus cogens norm could neither be derogated from through treaties nor customary rules of international law or other general principles of law. Another effect of this jus cogens norm is the de-legitimization of any legislative, executive or judicial act that legitimizes torture.
Similarly, the effect of the basic structure doctrine is such that any amendment introduced by the Parliament which distorts the basic structure of the Constitution, is at once declared null and void. An instance of the same can be seen in Minerva Mills v. Union of India, where the court struck down clauses 4 and 5 of the 42nd Amendment, on the grounds that the power of judicial review was a part of the basic structure of the Constitution, and could not be snatched away through an amendment.
Hence, a common thread can be observed of the effects of both jus cogens norms as well as the basic structure principle. Both occupy a position of hierarchy and override every other legal rule. Any provision which is in contravention to these principles would at once be null and void, and would hence cease to be effective or operative.
Justifications of the structural criticisms of the principles
The basic structure doctrine has been questioned on the grounds of whether the judiciary is a legitimate organ to impose a restriction on the amending-power of the legislature, specifically in light of the separation of powers doctrine. It is argued that giving an unelected judiciary the power to restrict an elected legislature is ‘undemocratic’. However, such an argument assumes that the majoritarian opinion, which is often reflected through the legislature, is the appropriate metric to measure democracy.
This criticism can hence be addressed if a re-conceptualization of democracy takes place on the lines advocated by Professor Dworkin. Dworkin understands ‘democracy’ to mean one where all citizens are treated with “equal concern and respect”. This is a counter-majoritarian outlook which looks at the intrinsic value of a principle and its role in furthering substantive, and not just procedural, democracy. Professor Marneffe furthers this argument by calling for an impact-assessment when deliberating on the democratic nature of a provision. Hence, when the court only safeguards those rights that are absolutely essential for a democracy, then since the impact of such a safeguard is not undemocratic, the safeguard in itself cannot be termed as undemocratic. Therefore, the restriction imposed on the legislature which prevents it from distorting the basic structure of the constitution, must be viewed as one which furthers, rather than hinders, democracy.
Similarly, a possible positivist criticism that can be drawn of jus cogens is that it imposes an obligation on all states, irrespective of whether they have explicitly consented to the same. This is in contravention to the general principle that international law is based on the consent of states, with an aim to respect the sovereignty of each state. Various sources of law usually share a horizontal relationship with each other, and hence creating a hierarchy whereby jus cogens overrules all other laws, might seem to be against the nature of international law. However, if the aforementioned conceptualization of substantive democracy is used as a framework, then it can be observed that norms which are categorized as jus cogens ordinarily serve the purpose of furthering individual liberties and democratic ideals.
On the specific question of the sovereignty of states being affected, a possible parallel can be drawn from the principle of Responsibility to Protect (“R2P”). This principle, adopted in the 2005 World Summit, attempts to ensure that the international community never again fails to stop acts such as genocide, war crimes, ethnic cleansing and crime against humanity. These developments resulted in a shift in the definition of sovereignty from initially meaning control of citizens, to later evolving as an obligation towards citizens. The idea of ‘Sovereignty as Responsibility’ was also greatly expounded upon by Francis Deng, who was the Special Adviser on the Prevention of Genocide. Hence, when sovereignty is conceptualized through this expansive lens, it can be deduced that jus cogens norms are also compliant with the sovereignty of various nations. This is because the peremptory norms that are formulated are generally of the character that protect the people of the world.
Conclusion
It can hence be concluded that despite the few differences that exist between jus cogens in international law and the principle of basic structure in the Indian municipal law, a clear analogy can be drawn between the two concepts. The source of the substantive content for both these principles remains judicial cases and rulings of the court. One of the effective means to correctly determine the content of such principles would be to keep in mind the principles of deliberative democracy. Furthermore, one of the most striking similarities between both these concepts is the effect that it has on other legal provisions that might exist in contravention. The contradictory provisions in the case of a jus cogens norm, as well as the excessive amendment in cases of the basic structure conflict, are declared null and void. Lastly, there have been certain criticisms that have been levied on both jus cogens and basic structure, due to the nature and structure of the legal systems in which these concepts operate. However, through a deeper analysis of the meaning of substantive democracy and the evolving meaning of sovereignty, all the criticisms can be justifiably defended.
Therefore, due to such similarities on many integral fronts, a clear analogy can be drawn between ‘jus cogens norms’ and ‘basic structure doctrine’. Either of them can be used to better interpret and understand the effects of the other. A harmonious interpretation with respect to both these concepts would lead to the strengthening of the domestic as well as the international systems of law.
Aditi Bhojnagarwala is a 3rd year student at NALSAR University of Law, Hyderabad.
Picture Credit: Suvajit Dey
Jindal Forum for International and Economic Laws 