Case & Mégret: The Colour of Jus Cogens

Sarah Riley Case (McGill Univ. - Law) & Frédéric Mégret (McGill Univ. - Law) have posted The Colour of Jus Cogens (in Emancipating International Law: Confronting the Violence of Racialized Boundaries, Mohsen al Attar, Ata Hindi, & Claire Smith, eds., forthcoming). Here's the abstract:

The international law doctrine of jus cogens recognizes that some prohibitions – such as those against slavery, genocide, and torture – have peremptory status above other international norms and cannot be negotiated away by treaty. However, in their 1993 article “The Gender of Jus Cogens” Hillary Charlesworth and Christine Chinkin claimed, “the concept of jus cogens is not a properly universal one as its development has privileged the experiences of men over those of women, and it has provided a protection to men that is not accorded to women.” The definition of jus cogens in spaces dominated by men, they argued, entrenched gendered experiences with distributive consequences. Jus cogens norms did not address the impacts on women of violence, poverty, food insecurity, and inaccessible health care. Jus cogens norms are biased and have been used to reinscribe benefits that men accrue from oppressing women.

Charlesworth and Chinkin published their article during early engagements with Feminist Approaches to International Law across the Global North, which foregrounded how international law is socially constructed to produce gender disparities. Sources of inspiration for these approaches included literature on colonialism and Third World feminisms. In their discussion of jus cogens, Charlesworth and Chinkin therefore used the term ‘women’ to refer to persons ‘around the world’ whose experiences jus cogens should reflect. Nonetheless, proposals to accommodate women in international law coming from the Global North have since been critiqued for eclipsing alternate feminisms and perspectives concerned with racism, colonialism, gender normativity, and economic inequality, with important consequences.

Acknowledging these nuances, we wish to focus on whether jus cogens reinforces hierarchies associated with multiple forms of imperialism. This has led us to ask if jus cogens might be associated with the dominance of people who have benefitted from and reproduce the white supremacy of colonialism and transatlantic slavery. The question is whether jus cogens might be defined by processes of racialization, simultaneously caught up with gender and class. We recognize, as Charlesworth and Chinkin did, that evoking jus cogens norms is often symbolic in practice. Our intuition is that jus cogens has at times been evoked for its symbolic value to discipline racialized peoples across a gender spectrum, while their appeals to jus cogens have often been excluded from its ambit of protection.