The Inter-American Court of Human Rights’ Expansion of Jus Cogens and the Missing Piece of the Puzzle: Aggravated State Responsibility

by Diego Uribe Bustamanter
(Adjunct Professor, Universidad Autónoma del Estado de México)

Last 18 November 2024, the Inter-American Court of Human Rights (IACtHR or ‘the Court’) published a landmark decision in the case of Pueblos Rama y Kriol, Comunidad Negra Creole Indígena de Bluefields and others v. Nicaragua. The Court ruled (at 460) that Nicaragua failed to protect communitarian property and consult indigenous peoples. It also found that settler´s presence and non-traditional economic activities violated the right to a healthy environment under Article 26 of the American Convention.

In the obiter dictum, the IACtHR affirmed (at 417) that environmental protection requires progressive recognition as a peremptory norm of international law (jus cogens). This statement was taken from a previous judgment against Perú regarding a similar issue (Habitantes de la Oroya v. Perú, at 129).

Ian Brownlie expressed that peremptory norms of international law were ‘the car that never left the garage’ to describe their lack of impact (p. 110). This blog post aims to present the IACtHR´s efforts to expand the material content of jus cogens norms beyond those widely recognised as such. Moreover, it will argue that such an expansion misses an important piece of the puzzle: developing a special regime of Aggravated State Responsibility for serious breaches of peremptory norms in the Inter-American Human Rights System.

The International Law Commission (ILC) has recognised the existence of an Aggravated regime of State Responsibility when a State commits serious breaches of peremptory norms. For instance, the ILC has established such a regime in the Articles (40, 41, and 48) on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), the Articles on the Responsibility of International Organisations (art. 41, 42, and 43) and the Conclusions (17 and 19) on identification and legal consequences of peremptory norms of general international law (jus cogens).

The Application of General International Law by the IACtHR

The Court bases its interpretation of the American Convention on its Article 29, commonly referred to as the ‘non-regression clause’ which establishes that any interpretation by the Court should not restrict the enjoyment or exercise of any right or freedom recognised by the Convention.

Derived from Article 29, the Court adopted as its primary interpretative tool the pro hominem or pro persona principle. It was first introduced by Judge Piza Escalante who defined it as the principle of interpreting extensively the norms that establish or expand rights and narrowly those that limit or restrict them.

The Court therefore often accords equal weight to both hard law and soft law, frequently drawing on external sources such as case law from international courts, regional courts, UN treaty bodies, and, at times, domestic rulings from the State party concerned, particularly when these sources provide broader protection for the individual.

Despite this flexible approach, the Court overlooks the Law of International Responsibility in cases involving breaches of peremptory norms of international law. The expansion of the material content of jus cogens has been developed by the IACtHR without mentioning the existence of an Aggravated regime of State Responsibility contained in ARSIWA Articles 40 and 41.

Furthermore, the IACtHR fails to recognise the content of ARSIWA Article 48(1) regarding the invocation of State Responsibility by non-injured States. This legal standing, known as erga omnes partes, corresponds to the idea that some international law obligations are owed to the entire community of States or to a specific group of States (see here p. 6). As a result, any attempt to advance public interest litigation through Inter-State disputes before the Commission under Article 45 of the American Convention, has been rendered ineffective. Throughout the history of the Inter-American System, this mechanism has been used only twice, the first case was declared inadmissible (Nicaragua v. Costa Rica), while the second finished with a friendly settlement (Ecuador v. Colombia).

One reason the IACtHR does not align its interpretations with the regime governing breaches of peremptory norms lies in the professional background of its bench. For instance, while judges like Antônio Cançado Trindade and Thomas Buergenthal were trained in international law, others lack this training and often disregard or challenge any international law approach. In the initial phase, the bench was composed solely of international lawyers. Currently, however, it includes a diversity of backgrounds, and expertise in international law no longer appears to be a determining factor in the election of judges (here, pp. 227-228).

Despite having international lawyers on its bench, the persistent lack of compliance with the Court’s rulings is a significant challenge to impactful innovative interpretations. This issue is exacerbated by Nicaragua’s recent withdrawal from the Organisation of American States and ongoing political tensions with States such as Peru and Mexico regarding compliance with past judgments that mandate either the enactment or withdrawal of specific legislative measures.

The Expansion of Jus Cogens by the IACtHR

The ILC’s jus cogens conclusions contain a non-exhaustive list of peremptory norms including the prohibition of aggression; the prohibition of genocide; the prohibition of crimes against humanity; the basic rules of international humanitarian law; the prohibition of racial discrimination and apartheid; the prohibition of slavery; the prohibition of torture and the right of self-determination. However, the ILC has also acknowledged that decisions of international courts are subsidiary means for determining the peremptory character of norms of general international law (Conclusion 9).

The IACtHR has identified on multiple occasions different peremptory norms from those traditionally recognised by the ILC and other international courts. The expansion started in 2003 with the advisory opinion OC-18/03 on the Legal Status and Rights of Undocumented Migrants at the request of Mexico, where the Court recognised the jus cogens nature of the principle of equality and non-discrimination (at 111). However, the IACtHR has been criticised for using ‘fairly vague notions of natural law’ (here p. 506) as well as for the ‘weakness in the identification’ (here p. 139).

The expansion continued in 2006 with Goiburú et al. v. Paraguay, a landmark case where the Court identified three new jus cogens norms: the arbitrary deprivation of life, the prohibition of enforced disappearances, and the corresponding obligation to investigate and punish, as well as the right of access to justice (at 76, 84 and 131). While the Court often reaffirms the jus cogens status of the prohibition of enforced disappearances, it does not follow the same reasoning for the arbitrary deprivation of life and for the right of access to justice.

The Court further held in the advisory proceedings OC-21/14 concerning child migration that as an international obligation associated with the prohibition of torture, the principle of non-refoulement acquires the character of jus cogens norm (at 225). Although the Court in Pueblos Rama y Kriol, Comunidad Negra Creole Indígena de Bluefields and others v. Nicaragua and Habitantes de la Oroya v. Perú did not recognise the right to a healthy environment as a jus cogens norm, it left the door open for further developments.

Notably, the Inter-American Commission (IACHR or ‘the Commission’) through its role as claimant before the Court identified the right to life as holding the status of jus cogens, but without consistently reiterating it, as the IACtHR typically does with the norms it has identified. In Niños de la Calle v. Guatemala the Commission argued that the right to life as a peremptory norm constitutes the essential basis of the exercise of the other rights (at 139). Moreover, through its contentious function in the case Michael Domingues v. United States (at 85), the Commission recognised the prohibition of the execution of persons under the age of 18 years as a jus cogens norm.

It is important to note that the IACtHR and the IACHR have not been the only international bodies expanding the scope of jus cogens. For instance, the Human Rights Committee in its General Comment No. 29 has recognised the peremptory nature of the prohibition of arbitrary deprivation of life (at 11). The Special Tribunal of Lebanon in El Sayed also asserted that access to justice had acquired jus cogens status (at 29). Recently, the Special Rapporteur on the situation of human rights in Afghanistan stated in her report that the codification of gender apartheid as an international crime could elevate it to a jus cogens norm (at 95).

Aggravated State Responsibility in International Law

In the context of various types of violations of international law, it is essential to distinguish between what can be termed as ‘ordinary’ State responsibility and ‘aggravated’ one. As Alain Pellet asserted, ‘a genocide cannot be compared with a breach of a trade agreement; it is, by its very nature, different in kind’. The ILC began the development of such an aggravated regime with the proposal of Article 19 by the ARSIWA Special Rapporteur Roberto Ago. He proposed a classification of State responsibility based on the nature of the obligation breached referring to breaches of jus cogens norms as ‘Crime of State’ and ‘Delicts’ encompassing any other obligation.

Despite the concept of ‘Crime of State’ being excluded from the Articles, it laid the foundation for the current ARSIWA Articles 40 and 41 on consequences for serious breaches of peremptory norms. Therefore, Aggravated State Responsibility can be defined as: a special regime of State responsibility triggered by a serious breach of peremptory norms of international law, whereby any State (or any other actors) can invoke, even without being directly injured, due to the erga omnes effects of the breach, and in which both State and individual responsibility concur.

Nevertheless, the ILC limited the application of an aggravated regime of responsibility—under ARSIWA Article 41—to obligations concerning third States (cooperation to end, non-recognition, and non-assistance) and left unexplored a special regime of individuals being the beneficiaries of the norm breached. Concerning the jus cogens conclusions, former Special Rapporteur Dire Tladi reported that the delegations held conflicting views, some arguing that the Commission was going too far, others, not far enough.

Aggravated State Responsibility in the IACtHR Jurisprudence: The car that was never started

Judge Cançado Trindade’s tenure was instrumental in the adoption by the IACtHR of an Aggravated regime of State Responsibility, which was addressed for the first time in 2003 in Myrna Mack Chang v. Guatemala (without any mention of jus cogens or of the ILC work).

The case refers to the international responsibility of Guatemala for the murder of Myrna Mack Chang, an anthropologist, by military agents, as well as the lack of investigation and punishment of all those responsible. The IACtHR affirmed that the adjudication of Aggravated State Responsibility was due to the pattern of extrajudicial executions promoted by the State, and the lack of effective judicial mechanisms to investigate human rights violations or to hold all responsible parties accountable (at 139).

The second case, Hermanos Gómez Paquiyauri v. Perú (2004), refers to the international responsibility of Perú for the detention and subsequent murder of two minor brothers by police agents. It is noteworthy that in this case, the Court justified the adjudication of Aggravated State Responsibility due to a systematic practice of human rights violations, including the extrajudicial execution of the two children (at 76). Both cases emphasised individual criminal responsibility, but aside from mentioning Aggravated State Responsibility, no specific consequences were outlined to distinguish them from cases not involving breaches of peremptory norms. Additionally, the obligations of third States under ARSIWA Article 41 were not addressed.

While those judgments were followed by others in which the IACtHR invoked Aggravated State Responsibility, the concept did not affect the remedies or obligations of State parties beyond the order of individual responsibility as part of the satisfactions. This remained the case despite Judge Cançado Trindade’s efforts—until his final vote—to develop a special regime for Aggravated State Responsibility in the Inter-American System.

Over time, the IACtHR ceased to pursue this line of reasoning. Even though in Caso Comunidad Campesina de Santa Bárbara v. Perú (2020) (at 152) and Bedoya Lima and Another v. Colombia (2021) (at 15) the representatives of the victims requested for the Court to adjudicate Aggravated State Responsibility, without success.

Aggravated State Responsibility in the case law of other Human Rights Bodies

Some attempts to adopt an Aggravated regime of State Responsibility can be found in the IACHR. In Djamel Ameziane v. United States (2020), concerning inhumane detention conditions in Guantánamo, the victim’s representative called for the United States to be held accountable for Aggravated State Responsibility due to torture, a claim the Commission upheld.

Likewise, the European Committee of Social Rights, drawing on the IACtHR case law, found Aggravated State Responsibility in Centre on Housing Rights and Evictions (COHRE) v. Italy (2010) due to violations targeting vulnerable groups, with public authority involvement.

Regarding UN treaty bodies, the Geneva-based Non-Governmental Organisation TRIAL International has sought to address Aggravated State Responsibility through individual communications on two occasions before the Human Rights Committee in Durić v Bosnia and Herzegovina Comm No 1956/2010 (at 3.3), Sharma v Nepal Comm No 2265/2013 (at 3.1) and before the Committee Against Torture (A v. Bosnia and Herzegovina No. 854/2017) (at 2.12). All these cases involve the commission of international crimes within the context of armed conflicts. However, the committees decided not to address the matter.

Moving Forward: A Special Regime of State Responsibility

In this context, the expansion of the material content of jus cogens by the IACtHR could constitute a first step toward developing a more elaborate regime on Aggravated State Responsibility from an individual-centered approach. For instance, according to some authors and the ILC comments on jus cogens Conclusion 17 , it is possible to articulate rules of international law governing the invocation of Aggravated State Responsibility by individual applicants before human rights courts.

Consequently, the Inter-American System should first recognise individual standing to bring cases against a State party for serious breaches of peremptory norms based on erga omnes partes obligations. Based on the Lotus principle, which states that anything not explicitly prohibited by international law is permitted, Article 44 of the American Convention does not prohibit such standing, as it explicitly allows ‘any person’ without qualifications. Thus, this special regime of State responsibility should entail the following implications:

A new mechanism before the Court: the special regime would enable individuals to directly—without the Commission—initiate proceedings before the IACtHR for breaches of jus cogens, as similarly provided by Article 34(6) of the Statute of the African Court of Human and People Rights.
The exercise of a concurrent jurisdiction: in the context of breaches of peremptory norms by State parties to the American Convention, the IACtHR could exercise its jurisdiction triggering the concurrent application of both regimes of responsibility—State and individual. The Court should directly attribute Aggravated State Responsibility for the internationally wrongful act involving a breach of jus cogens and, simultaneously, order the Individual Criminal Responsibility (as part of the satisfaction measures) within the State party for the commission of the international crime constituting the jus cogens Such an order would exemplify the intrinsic relationship between State and individual responsibility when jus cogens is at stake, recognised by the ICJ as a constant feature of international law (Bosnia and Herzegovina v. Serbia and Montenegro).
Disputes with an extraterritorial component: individual applicants could bring claims against State parties that committed breaches of jus cogens against nationals of any other State (party or not). In addition, individuals could bring claims against State parties alleged to have aided or assisted another State (party or not) in the commission of such breaches.
Complementary application of the ARSIWA: the judgments of the IACtHR could include the already known Third State´s obligations of Article 41. Thus, once Aggravated State Responsibility is found, the Court can order all State parties to lawfully cooperate in bringing the breach to an end, refrain from providing aid or assistance, and avoid recognising the situation as lawful. While the obligation to cooperate is already ordered by the IACtHR in cases of gross human rights violations, it is restricted to States parties having jurisdiction in the given case (p. 42).

Allowing individuals to bring claims against a State breaching jus cogens highlights their transformative role in protecting community interests and defending human rights violations. However, limitations to this progress include the risk of power imbalances (here, p. 300) and the challenges posed (here, p. 69) by the fragmentation of international law to recognising this regime as customary international law.

Subsequent buildout could include the development of Court remedies in cases of Aggravated State Responsibility invoked by individuals and the urgent implementation of a mechanism of compliance to overcome the possible non-compliance of States with the Court’s judgments envisaged in Article 65 of the American Convention (although with limited success in practice, see here p. 564) .

Final Remarks

International law has yet to fully explore the possibility of individuals standing based on erga omnes partes obligations seeking Aggravated State Responsibility for breaches of jus cogens. Most of the academic attention in this area has focused on the inter-State adjudication before the ICJ with little attention given to human rights law.

The establishment of a special regime of State responsibility aims to address a gap within human rights protection by proposing an individual-centered framework that safeguards collective interests. There is no doubt that international law is witnessing a growing trend toward the recognition and enforcement of community interests on the international stage. This shift, noted by Bruno Simma in his lecture at the Hague Academy of International Law has been now reinforced by recent ICJ decisions, as well as the “generous understanding of Non-Governmental Organisations’ standing” in the special context of climate change by the ECtHR in the recent KlimaSeniorinnen v. Switzerland judgment. In this context, the IACtHR is well-placed to advance the utopic appeal of community interests in international law.

In conclusion, the incremental expansion of the material content of jus cogens by the IACtHR, if not accompanied by the development of a special regime of State responsibility, risks undermining previous efforts and will lock the car in the garage for a few more years.