Fear and Loathing in Jus Cogens

Abstract

We were somewhere around custom on the edge of the convention when the doctrine began to take hold.1 The purpose of this essay is to take a Hunter S. Thompson-like journey to the heart of international law, to circumvent the banality of the discipline-a place that is viciously overcrowded...where almost everybody seems vaguely happy2-and ascend the discipline's heights in search of norms that have profound meaning. Despite the attractiveness of seeking to remedy breaches of the most fundamental global rules, the trek may be a frustrating one. As will be seen, the unyielding proliferation of arguments has at times threatened to reduce the international legal world to one in which there is not much left except..., well, fill in the blank.3In its 2005 decision in the Bouzari case,4 the Ontario Court of Appeal stated categorically that the prohibition against torture has become a rule of cogens-a peremptory norm of international law that sits at the apex of the law's hierarchy. Likewise, in its National strategy for combating the US executive branch declared that violence against civilians is today viewed in the same light as slavery, piracy, or genocide: behavior that no respectable government can condone or support and all must oppose.5 Together, these abuses form the worst of contemporary human rights violations, joining a rarified-if growing-club of abuses that are universally condemned as beyond the pale of legally acceptable conduct in a world notoriously few universal rules. Like the sexual enslavement of women, the execution of children, and other unfathomable crimes, the twin evils of torture and terrorism have each become a jus cogens norm, [or] a proscription [that] binds the community of States.15It takes little imagination for international lawyers to perceive a benefit to the project of expanding the category of cogens. It is at once a compelling psychological association of normative superiority universality,7 leading to non-derogable obligations of states to refrain from the preempted conduct and, in addition, to extradite and/or punish those who engage in it.8 On the other hand, when it comes to civil remedies for Canadians who suffer torture or terrorism, the cogens label appears as to be, as one commentator has dubbed it in a famously cynical essay, a rhetorical device with no substantive content; ...merely an insubstantial image of a norm, lacking flesh and blood.9 The purpose of this article is to investigate that perplexing state of affairs. How can it be that torture and terrorism fit the bill for the worst possible international law violations, but in Canada, its tradition of proud adherence to advances in the field of human rights and its leading role in humanitarian legal developments both within and without international institutions, the category of cogenshas been rendered meaningless for the victims of these transgressions?The problem, of course, is that in international law, as elsewhere, one can have too much of a good thing. The doctrine of cogens is no exception to the rule of embarrassment of riches, civil rights such as gender equality and even contentious norms such as the right to food falling under its expanding girth.10 In a way that is reminiscent of a subject matter in a gonzo journalism tract, the nature of cogens has gotten lost in the swirl of debate around it. In writing about the doctrine, one is tempted to do as Hunter S. Thompson did in covering the car race that is the ostensible subject of his most renowned book, Fear and Loathing in Las Vegas:But first we need the car. And after that, the cocaine. And then the tape recorder, for special music, and some Acapulco shirts. The only way to prepare for a trip like this was to dress up like human peacocks and get crazy, then screech off across the desert and cover the story.11As arguments and counter-arguments circle around the barren terrain leading to cogens, it seems evident that one must keep moving the momentum of international rhetoric. …