State Accountability for Breaching Jus Cogens Norms

Abstract

It is generally accepted that jus cogens norms are recognised to be non-derogable, and to bind all States because they protect the interests of the wider international community. If this is correct, it is incongruous that States could breach jus cogens norms with impunity. This thesis approaches this statement from two angles. Firstly, it questions whether States do in fact enjoy impunity; or whether there is a formal, or even ad hoc, practice of holding States accountable. Secondly, this thesis asks what it means to hold States accountable - whether the changing conception of international law, that accommodates jus cogens norms, is also developing to recognise a changing conception of State accountability.

In order to answer these questions this thesis conceptualises State accountability as an interpretive framework, with which to analyse relevant State practice and identify juridical support for State accountability. In addition, consideration is given to how a theoretical concept of State accountability relates to existing doctrines of public international law and illustrates why it is that State and juridical support for a conceptual principle of accountability exists when there is already an established principle of State responsibility.

It is submitted that rather than being an established legal principle, State accountability has legal, political and even moral characteristics and although the concept is currently lex feranda there is evidence of an evolution to lex lata.