Article body

While studying freedom of expression (FOE) during the Study Days mentioned in the introductory part, experts went through FOE itself and its components, however the conditions of its restriction before international criminal courts were more critical and we selected some of the subjects dealt with during those Study Days.

This article deals with ordre public as a motive to curtail FOE in the international legal order. Indeed, in the internal or domestic legal order, this subject is well explored, and the abundant case-law of the different human rights bodies and courts traces a clear path that is now well mastered.

However, nothing indicates if the relevant conventions are applicable in the international legal order, since those conventions are directed towards the State as a major source of restrictions. What is it, hence, about in the international legal order? And if there is an undue or even illicit restriction, what is the competent side to which the individual might go? This is the question to which we will try to bring an answer.

While examining the restrictive circumstances allowing limitation of FOE cited in subparagraphs (a) and (b) of the International Covenant on Civil and Political Right’s (ICCPR) Article 19 paragraph 3,[1] (rights or reputations of others and protection of national security or of public order, ordre public, or of public health or morals), one can have doubts about their applicability in the framework of the two cases where FOE was opposed to contempt of Court,[2] or more generally, in cases held before international criminal courts, in which FOE was restricted. The cases of contempt of Court where FOE was restricted are not many, as it was mentioned in the previous paper.

Ad hoc international criminal courts were created by decision of Security Council. The question is to know if they are bound by international human rights conventions. Some authors argued that Security Council, when acting in virtue of Chapter VII is not bound to respect human rights because of the important priority given to maintenance of international peace and security.[3] This view is not shared by other authors[4] who maintained that Security Council is bound by UN international human rights conventions because the purposes and principles of the UN Charter have evolved over time, and “they are, therefore, to be interpreted in the light of contemporary standards”.[5] For Debbas-Gowlland:

The concept of international peace and security has… acquired a meaning that extends far beyond that of collective security (envisaged as an all-out collective response to armed attack), to one in which […] gross violations of human rights, […], as well as grave breaches of humanitarian law, including those encompassed within a state's own borders, are considered component parts of the security fabric.[6]

However, international human rights instruments had been created for an implementation and enforcement in the domestic legal order. Therefore, the application of the principles they enshrine to the international legal order is not clear.

One of the legitimate aims allowing restriction of FOE is public order. It was relied upon by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Florence Hartmann’s case. The question is to know if ordre public can be sustained as a legitimate aim in the international legal order. Moreover, the question is to know if there is a public order in the (public) international legal order.

I. The reference to public order (ordre public) in the recent jurisprudence

In the Florence Hartmann’s case,[7] ICTY grounded its decision on the duty to protect the public order (ordre public), which was the legitimate aim for FOE restriction. In al Jadded, Khayat, Al Akhbar and Al Amin contempt cases,[8] the Special Tribunal for Lebanon (STL) based its decision on its inherent power. For the Tribunal, its inherent power allowed it to take such decision, to adopt Rule n°60, and to apply it. However, the Tribunal does not tell us if the current limitation met the conditions required by international standards, if it was done in the perspective of realizing one of the legitimate aims allowed by the International Covenant on Civil and Political Rights (ICCPR). Or perhaps the Court considered that its inherent powers are the legitimate aim?

Back to the applicable law regarding FOE, two major treaties were involved: the European Convention on Human rights (ECHR)[9] and the ICCPR.[10] Time wise, ECHR was adopted before the ICCPR and we notice that the latter is more restrictive on the limitations. Indeed, ECHR Article 10 is probably more suitable than ICCPR Article 19 for a contempt case since it states that FOE can be curtailed only in the interests of

national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of reputation or rights of others, for preventing disclosing the information received in confidence, or for maintaining the authority and impartiality of the judiciary.[11]

For the drafters of ECHR, “maintaining the authority of the judiciary” is a legitimate aim, allowing proportional and necessary restrictions on FOE. ICCPR, however, did not keep this condition, certainly because it might open the door for abuses in certain regimes. Comparison between the two texts shows that the conditions set by ICCPR Article 19 to curtail FOE are definitely more restrictive than ECHR Article 10.

In Hartmann’s case, ICTY Trial Chamber discussed the issue of FOE on the grounds of ECHR Article 10 but Appeals Chamber chose the ICCPR as applicable law. In application of Article 19, it found that the legitimate aim was maintaining public order (ordre public). The basic idea is that disseminating information in violation of a confidentiality order threatens public order. We will see later what the understanding of ordre public for the Tribunal is.

ICTY Appeals Chamber also relied on ICCPR article 14§1, which puts other conditions for a limitation to be lawful since the “press and the public may be excluded from all or part of a trial” for the following reasons: i. Morals; ii. Public order (ordre public); iii. National security in a democratic society; iv. The interest in the private lives of the parties; v. When publicity would prejudice the interests of justice, but only “to the extent strictly necessary in the opinion of the court in special circumstances”.[12] [emphasis added]. It is important to highlight the cautious wording that implies that this is an extreme that should be used in really extraordinary circumstances.

But ICTY did not provide any justification on how these articles applied to Hartmann’s case. ICCPR Article 14 continues by affirming that if publicity during the proceedings can be avoided, rendered judgments have to be made public, here again with a very narrow exception related to juvenile persons or if the proceedings concern matrimonial disputes or the guardianship of children.

Comparing with ECHR Article 6§1, regulating the “Right to a fair trial”, and specifying five unique exceptions where FOE before the judiciary can be restricted,[13] we notice that ICCPR Article 14 used the same exact words, the very same cases cited in ECHR Article 6§1.

In Hartmann’s case, the Appeals Chamber invoked the necessity of keeping the “public order”,[14] and considered that the condition required by article 19§3 was met.[15] Then, it invoked the harm to prejudice that will be done to the confidence in such institutions and the effect on the States which will not be willing to cooperate with the Tribunal in the future, which means that ICTY considers, hence, that confidence in international criminal tribunals is of public order. Appeals Chamber consequently declared being “satisfied that the Trial Chamber adequately took into account all relevant considerations to ensure that its Judgment was rendered in conformity with international law.”[16] Appeals Chamber did not refer to ICCPR Article 19. It confirmed that the Trial Chamber decision had met the conditions required by International law. However, both ECHR Article 10 and ICCPR Article 19 do not mention the question of states cooperation with the Tribunal as an aim for the restriction of a right; nor does ICCPR Article 14, or ECHR Article 6.[17]

But to summarize it, Appeals Chamber has considered that the protection of states’ cooperation is an aim allowing restriction of FOE in international humanitarian law.[18] It is hence necessary to shed light on the notion of ordre public and its history to assess its application in the International Legal Order.

II. The early reference to public order (ordre public) principle

This notion of public order (ordre public) is like Godot:[19] everyone talks about him, waits for him, but no one has ever seen him, or is sure about his existence. Public order is mentioned in different international documents as a fact. For example, Article 17 of the by-laws (règlement) of the Institut de Droit International, adopted in Brussels in 1936, recognizes the existence of public order as a rule of customary law, and says:

Recognition de jure of a government implies the recognition of the judicial, administrative or other organs, and the attribution of extraterritorial effects to their acts, in conformity with the rules of international law and particularly under the customary reservation of respect for public order, even if these acts had been consummated before any previous de facto recognition.[20]

The Polish Minority Treaty of 28 June 1919, also recognizes the existence of public order, but in the domestic legal order.[21]

However, in the case of the Norwegian Ship-owners Claims,[22] the Permanent Court of International Arbitration used the expression public policy as used by the Permanent Court of Arbitration (PCA) and not public order, and “International public policy” is synonymous of “Ordre Public International”, as it stated:

L'Ordre Public International is obviously not at stake when this Tribunal deals with such contracts. But should the public law of one of the Parties seem contrary to international public policy (« Ordre Public International »), an International Tribunal is not bound by the municipal law of the States which are Parties to the arbitration.[23]

Also, in the Oscar Chinn case before the Permanent Court of International Justice (PCIJ), the notion of “international public policy” was brought up by Judge Schücking in his separate opinion,[24] when he asserts that “The attitude of the tribunal should, in my opinion, be governed in such a case by considerations of international public policy, even when jurisdiction is conferred on the Court by virtue of a Special Agreement.”[25]

As for the ICJ, it was granted a dominant place by the Vienna Convention on the Law of the Treaties (VCLT)[26] of 1969 for the recognition of peremptory norms and treaty annulation. However, its jurisprudence remained quite reserved in the identification of peremptory law. Some authors even see a strategy for avoiding such recognition[27] since the Court uses close notions to identify such norms.[28] In 2006, ICJ admitted explicitly for the first time the existence of a jus cogens norm, which was the prohibition of genocide.[29]

Regional courts have participated to this effort of identifying peremptory norms, especially in the human rights field which is considered as the main legal sector where peremptory norms have a major signification, as the case-law of the Inter-American Court for human rights indicates.[30]

This quick review of certain doctrinal opinions shows that attempts to define public order relies on different notions that do not necessarily have the same meaning and cannot be interchanged. The definition of public order (ordre public) seems problematic and all attempts have failed.[31] Also, there are notions close the one to another, and it is important to differentiate between them. The content of this international public order has to be defined, and here also, authors do not unanimously agree on its content. We will try to shed more light on the definition of “public order” (ordre public) by making the difference between this notion and other principles; and we will also try to see what its contents can be.

III. Differentiation between neighbouring notions

Public order is often mingled with close notions which might lead to certain confusion. There are notions which do not exactly have the same meaning or legal effect but which are as difficult to define as ordre public. We can make, first, a difference between public order (ordre public) in the domestic legal order, and public order in the international legal order. This paper is only studying ordre public in the international legal order.

The main confusion has a linguistic origin, and it comes from the translation of the expressions ordre public from French into English. Public order in English is not the exact translation of the expression ordre public in French. It was translated into public policy, but it seems that the doctrine has changed its mind. (1) Another distinction can be noticed between ordre public in private international law and ordre public in public international law. This distinction comes from the continental legal system, whereas the American legal system only talks about international law without any further precision, as it is the case in the French language (2).

A. Public order or public policy

It is very important to stress on the fact that public order as ordre public is different from the expression often used in English: public policy.[32] Political scientists have devoted considerable attention to the problem of defining public policy without reaching a consensus.[33] Some authors define public policy as “an intentional course of action followed by a government, institution, or official for resolving an issue of public concern.”[34] It is the whole a system of laws, regulatory measures, courses of action, and funding priorities concerning a given topic promulgated by a governmental entity or its representatives.

Public order as ordre public has a totally different meaning. Ordre public is legal principle, difficult to define as well. The expression public order in the text of ECHR and ICCPR is taken from the French system where ordre public means all the mandatory rules that are linked to the general organization of the state, to the economic system, morals, health, security, public peace, rights, fundamental rights and freedoms of each citizen. These rules cannot be ignored, individuals cannot derogate to them, with very few exceptions. Public order can, hence, be defined as the set of mandatory norms organizing life in society within a given State. These norms are issued for the public interest, and without them, life in society would not be possible and States could not survive. Public order as ordre public is guaranteed by the State through the police. It is a set of supreme values that cannot be touched. It mixes different interests: political, moral, economical, or social interests.[35]

If the concept of ordre public is easily conceivable or understandable in the domestic legal order, its application to the international legal order is not very simple.

In any case, the two notions are evolutive. And, as Gerhart Husserl states, “[t]here is no ordre public and no public policy for all times and for all nations. Public policy is necessarily variable. It changes with changing conditions.”[36] The ordre public is a function of time and place.[37]

B. International public order as ordre public international

In the international legal order, public order was most often discussed in private international law issues, and not public international law. Charles Brocher even suggested to use the expression ordre public interne by opposition to ordre public international considered as an institution of private international law.[38] The doctrine used to follow this trend[39] but PCIJ and ICJ jurisprudence mention public order, without any further precision.

Public order is also closely linked to the idea of public power. The mere idea of public order cannot be separated from the notion of State. The guarantee of public order is also closely linked to the State activity in the space submitted to its sovereignty.[40] How is it possible hence to talk about international public order? At the same time, the validity of a treaty depends of its object: if the object is illicit the treaty (or a particular clause) becomes null, but not automatically. This norm has been brought by Vienna Convention on the law of the treaties of 1969[41], based on the principle of jus cogens which we will see later.[42]

Today, and with all the military interventions and sanctions imposed mainly by UN Security Council, one can wonder if a new ordre public international is not born. Reactions to violations of international law have traditionally been unilateral. States enforced their own rights having recourse to coercive measures if necessary. During the last decade, things have radically changed, with increased collective institutionalized responses to breaches of international law. Today, the international intervention in Syria and Iraq against the terrorist group ISIS, with the cover of UN Security Council, is an illustration of the new dimension of international cooperation.

This has gone hand in hand, says late professor Vera Debbas-Gowlland, with the creation and expansion of a domain of public interest or international public policy, the emergence of the legal notion (and legal fiction) of an international community, and the "hierarchization" of rules due to a growing value-oriented international law, i.e., the creation of a core of norms deemed fundamental in the sense that they are directed to the protection of certain overriding community values, or indispensable for the functioning of a highly complex and interdependent international society, and the non-observance of which would affect the very essence of the international legal system.[43]

The new international world leans towards a system based on protecting human security as well as states’ security through a stronger international judiciary system.

The place granted to international justice relies mainly on states’ will or consent, and finally offers a minimal possibility to international lawsuits.[44] With the new trend that has been witnessed after the fall of Berlin wall and the end of the Soviet empire, a new doctrine has seen light, called the "Progressive doctrine".[45] It shows the intention of this new doctrinal stream to give a new look to the international legal order, a look where the international judge has a dominant place. In this new world, the judge’s function is to guarantee the respect of the international public order, presupposing the existence of a hierarchy between the international legal norms, and depends on the existence of peremptory norms of jus cogens.[46] The emergence of all the international criminal courts and tribunals goes together with this trend and with the new conception of the individual as “subject” of international law. The condition of existence of the international ordre public is, hence, linked to the existence of jus cogens.

IV. Ordre public and jus cogens

The place occupied by jus cogens in international law is well seated now, especially after its new recognition in 2001 by the UN General Assembly (UNGA) in its Resolution on Responsibility of States for internationally wrongful acts[47] where Chapter III concerning Serious breaches of obligations under peremptory norms of general international law states in its Article 40 that:

1. This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. 2. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation.[48]

The concept of jus cogens is now part of substantive law and it even “transcends nowadays the ambit of both the law of treaties and the law of the international responsibility of States, so as to reach the general International Law and the very foundations of the international legal order.”[49]

However, is it possible to consider that public order (ordre public) and jus cogens are the same concept? This is what some authors seems to think. For Alain Pellet, ordre public international amounts to imperative norms of general international law, that is for him jus cogens.[50] He asserts that:

Au terme d'une lente évolution, qui n'est pas allée sans à-coups, l'humanité s'est mise à adhérer à un minimum - oh, encore un strict minimum! - de valeurs communes qui sont à l'origine d'un ordre public international, encore très embryonnaire, mais dont l'existence n'en est pas moins indiscutable.[51]

For Pellet, peremptory norms of international law are part of this international public order, or at least they are the practical translation of its existence.

The principle of jus cogens passed through different phases but if today it is not contested anymore, its contents remain unclear, especially that it was dealt with in a conventional framework which might not be sufficient anymore today. Indeed, violations can happen by unilateral acts and not through a treaty; moreover, the jus cogens norms themselves are fundamental norms and the place that human rights are taking in the international law fora creates new challenges.

A. The legal framework of jus cogens

The notion of jus cogens, although it has its origin in municipal legal systems, was definitively introduced in the realm of international law by the VCLT in 1969, and confirmed by the 1986 VCLT.[52] Article 53 of the 1969 VCLT states about “Treaties conflicting with a peremptory norm of general international law (jus cogens)”:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.[53]

From this article, some of the components of this notion can be deducted: its origin or source, and its effects.

Concerning its source, the VCLT states that jus cogens is a norm of general international law, that is customary law, then it mentions the peremptory character of these norms had to be accepted and recognized by the international community of states as a whole, which means to states which are not parties to the Convention. However, by this stance, the Convention is not able to give a shape to the jus cogens norms, and this task is handed over to the State Parties and to the judiciary.[54] As for the effects, it is clear that by declaring null all treaties contrary to jus cogens norms, some authors feared an instability of international relations, and were skeptical for its effects.

Reflecting somehow this doctrinal hesitation or even skepticism, the case-law remains very thin, and the clear reference to the jus cogens as such is rare, even if it does not create any confusion on the substance of jus cogens. ICJ examined few cases where jus cogens was invoked. In an Advisory Opinion dated 28 May 1951, related to the reservations on the Convention for the Prevention and Repression of Genocide, it stated that an elementary “moral” principle bound States irrespectively of any treaty. In 1970, in the Barcelona Traction case,[55] the World Court obiter dictum talked about erga omnes obligations, but the expression jus cogens never appeared in the judgment. In an Order dated 15 December 1979,[56] ICJ declared that

while no State is under any obligation to maintain diplomatic or consular relations with another, yet it cannot fail to recognize the imperative obligations inherent therein, now codified in the Vienna Conventions of 1961 and 1963, to which both Iran and the United States are parties[57]

without mentioning directly jus cogens norms. It was only in the Nicaragua Case in 1986, that ICJ finally clearly affirmed jus cogens as an accepted doctrine in international law, but in the framework of the prohibition of the use of force.[58] But ten years later, in an Advisory Opinion dated 1996, the Court once again refused to use the expression jus cogens and made reference to the “intransgressible principles of international customary law.”[59]

As for the arbitral justice, an annulation of treaty based on jus cogens was invoked by Guinea-Bissau in the case concerning the determination of their maritime frontier with Senegal.[60] The Arbitral Tribunal recognized the existence of jus cogens norms, refusing to consider them as of higher hierarchy then other norms. For the Arbitral Tribunal, and from the Law of the Treaties point of view, jus cogens is simply the characteristic peculiar to certain legal norms so they cannot be overruled or derogated upon by conventional dispositions.[61] But the Tribunal stated that Guinea Bissau was unable to bring evidence on the existence of a jus cogens norm in its allegations.[62]

Today, jus cogens is being employed in other areas than treaties, and by a variety of actors, not only states, by NGOs and individuals. Unilateral acts of states and binding resolutions of international organizations are said to be null and void if they are contrary to peremptory international norms.

If the international public order existence was somewhat contested, today an:

ordre public emerging from the hierarchization of rules due to a growing value-oriented or public interest-oriented international law. The international legal order has singled out certain vital functions of the system, inter alia, maintenance of international public order and the incorporation of a certain universal moral or ethical foundation in the form of human rights.[63]

B. Jus cogens and erga omnes obligations

Jus cogens norms create for states erga omnes obligations. In other words, the peremptory character of a norm cannot be denied by a state, and the obligations it creates are erga omnes that is to say “opposable” to all countries. If jus cogens is about the peremptory character of the norm, erga omnes character is its opposability to any state.

However, if the two notions are certainly inter-related, they are not exactly the same.

The ICJ has given the definition of “erga omnes obligations” in a famous obiter dictum in the Barcelona Traction Affair[64] where it stated that:

an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by international instruments of a universal or quasi-universal character.[65]

Erga omnes obligations are, hence, designed for the protection of collective interests and their respect is due towards all the members of the international collectivity simultaneously. Jus cogens norms have the same aim since they impersonate the highest values of a society.

The difference between the two notions appears to the scrutiny of the definition proposed by ICJ, which was judged unsatisfying,[66] because not accurate regarding the elements of erga omnes obligations, i.e. their indivisible character and the multiplicity of stakeholders. It also restricts the scope of application of the concept to obligations protecting fundamental interests of international community, but it implies at the same time that such obligations can only result for general international law or universal treaties, whereas the reality is different and such norms can emanate from other sources.

In fact, a norm can be erga omnes without being a norm of jus cogens, even if the opposite is not true: a peremptory norm of jus cogens is erga omnes without a hesitation. It is also perfectly possible to create by treaty erga omnes obligations within a limited group of states, or regionally. Erga omnes norms do not have to be of universal value. The relation between the two concepts is very important to clarify, since they are, as we previously said, very close.

Jus cogens is a normative category narrower than the group of norms producing erga omnes obligations. Peremptory norms form a sub-category of erga omnes obligations with a stronger legal shield.[67]

C. The norms of jus cogens

What are the norms that can be considered as peremptory norms? If the recognition of the peremptory character of certain norms, their content, or their object is not easily determined.

VCLT of 1969 has focused on the function of jus cogens which makes a treaty in breach with its norms null and void. However, the content of jus cogens norms was left aside, adopting a definition that looked at first sight as repetitive, or redundant.

The international practice is not very abundant, on the contrary, and this scarcity is due to the fact that states are not willing to extend the scope of application of jus cogens, but on the contrary, they try to keep it within a restricted frame.

1. The prohibition of the use of force

Prohibition of the use of force is without contest, the perfect illustration of jus cogens norm, despite its frequent violations. But even this well-established principle is subject to controversies as for its peremptory character.

Article 2§4 of the UN Charter has set a fundamental principle: the prohibition of use of force in international relations. The article clearly states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The prohibition of the use of force is first and foremost a treaty-based rule, inscribed both in the Charter of the United Nations and in numerous other treaties of regional scope.

The prohibition of the use of force has been reaffirmed in several international UNGA resolutions such as res. 2625 (XXV) dated 24 October 1970; res. 2660 (XXV) dated 7 December 1970; Res. 3314 (XXIX) dated 14 December 1974; A/RES/31/9 dated 8 November 1976; A/RES/33/72 dated 14 December 1978; A/RES/42/22 dated 18 November 1987; etc.

This principle is now considered as a customary norm, applying also to States who have not accepted this character. However, the question is to know if it is considered as a jus cogens norm, a norm to which no derogation is possible, to know if the “essential components” of the international community have accepted the peremptory character of this norm.[68]

The expression “essential components” of the international community is not very clear and needs to be fine-tuned. Does it designate the permanent members of Security Council?

For the large majority of states, the prohibition of use of force in international relations is a norm of jus cogens.[69] However, the debates having taken place before the adoption of UN General Assembly Resolution 42/22 dated 18 November 1987 show some more nuanced positions on the subject, even if Article 2 of this Resolution clearly states that “the principle of refraining from the threat or use of force in international relations is universal in character and is binding, regardless of each State's political, economic, social or cultural system or relations of alliance.”[70]

In the debates, Honduras went even further and mentioned the Charter’s dispositions related to international public order which are the expression of imperatives principles.[71]

However, few states did not clearly state that the prohibition of the use of threat or force in international relations was a peremptory norm of international law, neither a norm of jus cogens, but only a fundamental principle. But even in this category, the wording changes:

The USSR stance was more subtle; without expressing their opinion about the peremptory character of this principle, they stated that “les principes touchant les relations amicales et la coopération entre les États sont le fondement du droit international contemporain.”[72]

As for the United States they rejected the idea that the prohibition of use of force is a jus cogens norm, and stated:

Whatever contribution the statements in the elaborations of those principles might help make to a better and more tolerant world, they were not jus cogens. His delegation was not so presumptuous as to make any claim to that effect.[73]

India’s statement is particularly interesting, since it affirms that the principle of prohibition of the use of force is the corner stone of the “international public order”,[74] in a clear acceptance of the existence of international public order and considering, hence, jus cogens as part it.

The principle is now admitted and the larger part of the doctrine agrees that the prohibition of the use of force is a jus cogens norm,[75] even if some other authors allege that this principle has fallen into disuse. Indeed:

if the breach of a legal rule obviously has an impact on its effectiveness, it does not automatically question its existence. Even when infringed, the principle of the prohibition of the use of force remains a positive law rule.[76]

ICJ jurisprudence confirmed that the prohibition of the use of force was a peremptory norm, a jus cogens norm. For the ICJ, this principle is the cornerstone of the UN Charter,[77] and that it had acquired a customary value.[78] It is very often cited as a typical example of jus cogens, as a principle that cannot be transgressed.[79]

In its Opinion n°10 dated 4 July 1992, the Arbitration Commission for ex-Yugoslavia (Commission Badinter) admits that rules of international law regarding non-use of force and protection of minorities are peremptory, since new states can only be recognized if they comply with “the imperatives of general international law, and particularly those prohibiting the use of force in dealings with other states or guaranteeing the rights of ethnic, religious or linguistic minorities.”[80]

2. Few Human rights and Humanitarian Law peremptory norms

As some authors have noted, “Most of the case law in which the concept of jus cogens has been invoked is taken up with human rights.”[81]

Even before VCLT adoption, concerns about protection of humans was already strongly present. In 1966, Judge Tanaka, in the South West Africa case, stated in his dissenting opinion:

If we can introduce in the international field a category of law, namely jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to the jus dispositivum, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to the jus cogens.[82]

In 1968, the representative of the Vatican at the Diplomatic Conference of the UN on the Right of the Treaties, Professor René-Jean Dupuy, even proposed “[le] principe de la primauté des droits de l’homme comme dénominateur commun au jus cogens.”[83]

Few years later, Professor Roberto Ago recognized that fundamental rules of humanitarian character (prohibition of genocide, of slavery, of racial discrimination, protection of human persons’ essential rights in times of peace and in time of war), belonged to jus cogens hard core norms.[84]

The Arbitration Commission for ex-Yugoslavia (Commission Badinter), in its first Opinion dated 29 November 1991, tackling the issue of State succession, stated that “the peremptory norms of general international law and, in particular, respect for the fundamental rights of the individual and the rights of peoples and minorities, are binding on all the parties to the succession”.[85]

In other words, individual human rights, and collective rights to self-determination, and rights of minorities could be considered as peremptory.

The first comment concerns the principle adopted by this Opinion which is to recognize collective rights and not only individual rights. Indeed, for certain authors, human rights are the rights of human beings as individual being. Groups may have rights of some sort, but whatever those rights might be, they cannot be human rights. Human rights must be rights born by human individuals. While other authors insist that human rights can take collective as well as individual forms.[86] This Opinion has taken position by recognizing collective rights within the framework of state succession.

However, the wording of the Opinion is quite ambiguous and could be interpreted in different ways. However, we don’t think that the word “binding” is a synonymous of “peremptory” especially that all fundamental individual rights are not part of the jus cogens. Moreover, the Opinion specifies that these norms are binding on all parties to a state succession.

Some of the European Court for Human rights judges tend to think that human rights are jus cogens.[87] Other European judges think that general principles of law, which are not part of the jus cogens cannot bring restrictions to the rights recognized by the ECHR human rights, which is a lex specialis.[88]

However, in the absence of any solid statement, we cannot consider that their rights are jus cogens. At present, very few norms from the international humanitarian law or international human rights law are considered as jus cogens norms: prohibition of genocide, of slavery and torture. The prohibition of discrimination could be a jus cogens norm, but no statement in this respect has been detected in the international doctrine or jurisprudence.

a) Prohibition of Genocide

Even if the right to life is an “absolute” right, it is not a norm of jus cogens. But mass killings on discriminatory basis, i.e. genocides, are considered as banned under any circumstances. Some of the humanitarian law principles are, hence, considered as peremptory norms of international law.

The ICJ affirmed this principle in more than one occasion. For the Court, “genocide is a crime under international law”. It considers it as a norm of customary international law, as in its jurisprudence of 1951[89] when it stated that:

The first consequence arising from this conception is that the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation. A second consequence is the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge.[90]

In 1996, in the case between Bosnia and Herzegovina v. and Yugoslavia, it stated that “the rights and obligations enshrined by the [genocide] Convention are rights and obligations erga omnes”.[91]

The ICJ reaffirmed the same principle in 2006, in the case regarding Armed Activities on the Territory of the Congo[92] where it started by reaffirming that “the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”[93] and that a consequence of that conception is “the universal character both of the condemnation of genocide and of the co-operation required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the Convention)”[94], referring to its former 1951 jurisprudence,[95] and reaching the conclusion that “the rights and obligations enshrined by the Convention are rights and obligations erga omnes”,[96] according to its 1996 jurisprudence. The Court asserted once again that prohibition of genocide had “assuredly” an erga omnes character.[97]

In 2007, the Court clearly stated, without further justification, that “[…] the prohibition of genocide has the character of a peremptory norm (jus cogens).”[98]

In 2015, the Court, relying on its previous jurisprudence, stressed that it “has made clear that the Genocide Convention contains obligations erga omnes [and] that the prohibition of genocide has the character of a peremptory norm (jus cogens).”[99]

b) Prohibition of slavery and torture

International law of human right is one of few legal fields where ethics, moral values, and universality of rights meet together.[100] Some barbarian acts have been prohibited, by international instruments first, then by international courts.

Prohibition of slavery and torture are one of the main principles set by the Universal Declaration of Human rights Article’s 4 and 5.[101] ICCPR tackled the same principles by stating first that these rights did not accept any derogation.[102] This is quite interesting because ICCPR Article 6 guarantees the right to life, Article 4 refuses any derogation, however, killing is still allowed under different excuses: ICCPR does not forbid death penalty, the UN Charter accepts the use of force with what it carries with it as deaths and casualties, and “collateral damages” are admitted and excused.

If right to life is finally not so absolute, it seems that slavery and torture or cruel, inhuman or degrading treatment or punishment are not tolerated by the International community. Servitude is considered like slavery and equally banned.

This peremptory norm was consecrated by different international courts. The contribution of the International Criminal Tribunals was important. In 1998, the ICTY was the first to identify jus cogens norms in the case Furundzija.[103]

The European Court for Human rights followed and admitted that prohibition of torture is a norm of jus cogens, in 2001 then, in 2008.[104]

Finally, the ICJ, in the case concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), clearly confirmed that prohibition of torture is part of customary international law and a peremptory norm (jus cogens), and justified its position by demonstrating that there was a wide acceptance by States of this peremptory character.[105]

D. Is the administration of justice a norm of jus cogens?

The question is to know if the administration of justice is part of the international public order, a norm of jus cogens, since freedom of expression can only be curtailed or violated for certain reasons, among which the sake of ordre public, the only reason applicable to international criminal justice.

The good administration of justice is one of the individual fundamental rights protected by international law. It is considered as a key condition for democracy and the rule of law. The question is to know if it is a peremptory norm.

Moreover, in the international field, the good administration of justice does not have the same aims. International criminal justice only exists to punish the perpetrators of most heinous crimes against humanity, only if domestic justice is incapable, or unwilling to prosecute them. The principle of complementarity of international justice is one of its basic character, and it is translated by the principle of exhaustion of all internal recourses. In his separate Opinion attached to the Judgment, in the case Ringeisen v. Austria, Judge Verdross stated that the rules of general international law regarding exhaustion of internal remedies are not part of the jus cogens.[106] Does it mean that this principle can be over ruled by an international court? Giving such power to international justice would mean that Security Council will turn into a "supra power" with super powers, and the authors are skeptical about states agreement on such trend, disregarding the fact that recent tensions between Russia and the United States will most likely hinder any new attempt for international criminal charges for international crimes. The example of the Syrian crisis illustrates today very well the dead-end of international criminal justice.

In any case, nothing has been mentioned about administration of justice. The offence of contempt of Court originated from the idea that administration of justice had to be preserved in the best interest of individual’s rights. Because one has to remember that justice has been created to serve human beings and no the other way around.

There are no indications so far, that administration of justice is a peremptory norm, and it cannot be invoked to curtail FOE or violate the principles enshrined in ICCPR Article 19.

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Public order as ordre public is not a peremptory norm of international law, and it cannot be invoked to curtail FOE. In the light of the Florence Hartmann’s case, strict application of FOE principles to contempt to Court is an uneasy task for several reasons:

Those principles were originally designed for an application in the internal legal order and their extension to the criminal international legal order was done in contradiction with the principles of restrictive interpretation of texts prevailing in the application of legal norms in criminal law.

There was a contradiction concerning the applicable law before the ICTY, between the Trial Chamber and the Appeals Chamber; The interpretation of the requirements imposed by the different applicable international instruments was not uniform, stable, or clear, as this paper tried to demonstrate; International public order – especially in the field of criminal law, and the fight against impunity – requires for its implementation that “justice” and “power” – or “justice” and “strength” – work together, and that, what is fair is strong and what is strong is fair, as per Pascal’s words.[107] Is it the case for the international criminal tribunals? This is perhaps the main issue in this lawsuit, the raison d’être of this jurisprudence, to preserve the strength of an international criminal justice that might not be as strong in the future, especially that the ICTY is reaching the end of it mandate. It looks like the whole foundations of the jurisprudence in the Florence Hartmann’s case are circumstantial. Therefore, they cannot be considered as a case-law, even if the application of the standards of FOE, before international criminal courts, is certainly a step forward, a significant progress in this field. A lot of work is still to be done in order to extend the application of international standards to international criminal courts, since the applicable conventions do not provide solid legal grounds to the ruling of the Tribunal. However, and in any case, the Tribunal could have disregarded ICCPR Article 19 and only taken into consideration Article 14, which is a solid foundation for the restriction of freedom of expression. It is not sure that ICCPR Article 19 is designed to be applied before the judiciary, unlike Article 10 of the ECHR.

International criminal justice, in its fight against war crimes, and more recently against terrorism, reveal at first sight a disrespect of certain fundamental rights. In fact, it is a tension between two different rights.

More recently, since the aftermath of the terrorist attacks of 9/11, the Security Council has been at the forefront of the fight against international terrorism, and set a normative strategy which consisted on targeted sanctions have been adopted against individuals and entities suspected of being affiliated with terrorist networks, in addition to Resolution 1373, which lays down general obligations that states must implement, ranging from the prevention and repression of terrorism financing to international judicial cooperation.[108] The creation of the Hariri Tribunal – the STL – comes in this line, and there are talks about creating an international tribunal against terrorism. However, the side effects of Security Council policy considering security concerns as compelling priority materialized soon thereafter, as “the inevitable encroachment of such measures on fundamental rights and freedoms of individuals has become a source of concern for the international community and its different components”.[109]

Finally, it is to the states to decide on the weight to give to confronting rights. This is the margin of appreciation provided to states that is be discussed in another paper.