Thomas Jefferson, Mac and Inalienable Rights
Jus cogens is a phrase I have not heard since law school. When I was a student I had the privilege of studying with former Yale Law School dean and towering figure in international law, Myres McDougal. He was my international law professor. My human rights law professor was Lung-chu Chen, a co-author along with Mac and Professor Laswell, of "Human Rights and World Public Order" which propounded the notion that Jeffersonian natural law and innate and inalienable rights belonged not just to US citizens, but to all people. They argued that providing human rights should be the policy of all nations and all organizations of nations (such as NATO, UN, etc.).
They followed an evolution of human rights law from periods when citizens would surrender all of their rights in exchange for security (Dark Ages anyone?) through the Enlightenment’s ideas about natural law, with detours through Communism’s "collectivism" and down to the authors’ modern vision of a "policy based" approach to human rights.
The policy based approach is the logical progression from the natural law concepts of the Enlightenment which formed the basis for Thomas Jefferson’s rationale for the Declaration of Independence.
Indeed, an argument can be made that the seeds of the policy based approach can be found in the Bill of Rights in the first ten amendments to the US Constitution. Rather than a right acquired by custom or demand, the rights guaranteed in the Bill of Rights are affirmatively protected by the government as a matter of policy.
They identified eight categories of rights that ALL people regardless of nationality, rank or other status are born with:
Respect: Freedom of choice, equality and recognition
Power: Making and influencing community decisions
Enlightenment: Gathering, processing and disseminating information and knowledge
Well-being: Health, safety and comfort
Skill: Acquisition and exercise of capabilities in vocations, professions and the arts
Affection: Intimacy, friendship, loyalty; positive feelings
Rectitude: Participation in forming the norms of responsible conduct
The prohibition of torture is a jus cogens norm (these are principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties). The United States has consistently prohibited the use of torture through its Constitution, laws, executive statements and judicial decisions and by ratifying international treaties that prohibit it. The prohibition against torture applies to all persons in U.S. custody in times of peace, armed conflict, or state of emergency. In other words, the prohibition is absolute.
You see, there are some rights so fundamental that they come to us simply from being human; they are NOT "given" to us by the State. Thomas Jefferson mentioned a few in the Declaration of Independence: Life, Liberty and the Pursuit of Happiness. Custodial torture certainly involves a violation of the Liberty interest, and can in particularly unfortunate cases, implicate the Life interest.
The prohibition against torture is a jus cogens norm. Jus cogens are defined as norms “accepted and recognized by the international community of states as a whole … from which no derogation is permitted…” In international criminal law, the legal duties that arise in connection with crimes designated as violations of jus cogens norms include the duty to prosecute or extradite, the non-applicability of statutes of limitations, the non-applicability of any immunities up to and including those enjoyed by Heads of State, the non-applicability of the defense of "obedience to superior orders" and universal jurisdiction over perpetrators of such crimes.
Other jus cogens norms include the prohibitions against slavery, genocide, and wars of aggression. Jus cogens norms, like customary international law norms, are legally binding. No affirmative executive act may undercut the force of these prohibitions nor may a legislature legalize crimes designated as violating jus cogens norms or immunizing from prosecution those responsible. Jus cogens norms differ from norms which have attained the status of customary international law by dint of their universal and non-derogable character and the fact that jus cogens norms are peremptory, that is, they trump any other inconsistent international law.
Seventeenth in a series on torture and the law