What is ‘Jus Cogens’? Within international law, the principle of jus cogens has been used to solidify certain human rights that are seen as universal. A highly protective form of customary international law (CIL), jus cogens (also known as ‘peremptory norms’) is a set of fundamental, non-derogable legal norms that trump any conflicting treaty provisions or CIL. States that persistently object to treaty law or CIL are typically exempt from being bound by such treaties or customary norms if they establish that they never consented to the application of the international law(s) in question. However, such objections are not accepted when a jus cogens norm is violated.
Being at the pinnacle of the hierarchy of international law authority, jus cogens refers to only a select category of international law norms. The most frequently recognized jus cogens norms are the prohibition of aggression, the prohibition of genocide, the prohibition of crimes against humanity, the basic rules of international humanitarian law, the prohibition of racial discrimination and apartheid, the prohibition of slavery, the prohibition of torture, and the right to self-determination. (See Report of I.L.C. on Peremptory norms.) However, it is important to note that this list is nonexclusive, and it is generally accepted that additional peremptory norms may exist within international law. Yet, even today, a prohibition of gender/sex discrimination is not widely recognized as a jus cogens norm.
Gender and Jus Cogens:
Scholars Hilary Charlesworth and Christine Chinkin recounted in their journal article, The Gender of Jus Cogens, that:
“Much of the importance of the jus cogens doctrine lies not in its practical application but in its symbolic significance in the international legal process . . . It thus incorporates notions of universality and superiority into international law. These attributes are emphasized in the language used in describing the doctrine: jus cogens is presented as guarding the most fundamental and highly-valued interests of international society; as an expression of a conviction, accepted in all parts of the world community, which touches the deeper conscience of all nations; as fulfilling the higher interest of the whole international community.”
Charlesworth and Chinkin go on to cite Bruno Simma and Philip Alston’s criticism of jus cogens in The Sources of Human Rights Law, that: “it must be asked whether any theory of human rights law which singles out race but not gender discrimination . . . is not flawed in terms both of the theory of human rights and of the United Nations doctrine”. Ultimately, Charlesworth and Chinkin underscore the shortcomings of the current scope of jus cogens, specifically the lack of recognition of gender discrimination and the systematic flaws that led to a jus cogens doctrine that is skewed to a traditional, masculine perspective.
However, there is ample reason to advocate for gender discrimination to be enumerated as a jus cogens norm in our current international legal system. According to the WORLD Policy Analysis Center, as of January 2020, 85% of states’ constitutions explicitly guarantee equal rights or non-discrimination on the basis of sex and/or gender, and 100% of constitutions adopted since 2000 have a gender equality clause. Furthermore, only 7% of constitutions allow customary or religious laws to supersede gender equality guarantees.
This widespread acknowledgement of the importance of gender equality suggests that today equal rights based on gender are nearly universal, or at least recognized as integral to modern society. Although states may avoid giving effect to prohibitions on gender discrimination based on political and religious agendas, jurists across the globe have ample legal and moral justifications to classify the prohibition of gender discrimination as a solidified peremptory norm. The most common claim against a gender equality jus cogens norm is that the Global North is seeking to forcefully impose this norm upon the international system and that the norm is insufficiently universal. However, many of the already accepted ‘masculine’ jus cogens norms can be characterized in the same manner. Therefore, jurists should not decline gender equality its rightful place as a jus cogens norm based on this criticism which has been determined insufficient to preclude the ‘masculine’ jus cogens norms from being enumerated.
In summary, by recognizing a prohibition on gender discrimination as a jus cogens norm, the international legal system can remedy its unjustified exclusion from the list of hierarchically superior norms, and, as a result, perhaps begin to better protect women’s rights globally.
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