1. For my final JUS COGENS THREAD of 2020, I shall reveal the correct answer to the question below. https://twitter.com/AdHaque110/status/1342809807246548993

Note: I typically keep my jus cogens threads light. This one is not. But I hope it's interesting.

2. On September 25, 1991, the United Nations Security Council adopts resolution 713, imposing an arms embargo on Yugoslavia.

3. In 1992, Bosnia and Herzegovina declares independence and is quickly admitted to the United Nations as a member State.

4. The Army of Republika Srpska, supported by the Federal Republic of Yugoslavia, begins a campaign of murder, rape, and expulsion against Bosniaks and Bosnian Croats.

5. In 1993, Bosnia asks the International Court of Justice to declare resolution 713 inapplicable to Bosnia.

Bosnia argues that the arms embargo asymmetrically impairs Bosnia's inherent right of self-defense, contrary to article 51 of the UN Charter.

6. In its initial application, Bosnia calls this "a straightforward question of Charter Interpretation."

But it also claims that, "under the unique circumstances of this case" involving both aggression and genocide, its right of self-defense also arises under jus cogens.

7. As far as I can tell, Bosnia doesn't press the jus cogens claim in its subsequent submissions or oral proceedings, relying exclusively on its interpretation of the Charter.

The ICJ declines to settle the question.

8. In my favorite ICJ separate opinion, Eli Lauterpacht (aka The Remix) writes that, if resolution 713 imposes an arms embargo on Bosnia, then it requires member States to aid or assist genocide, contrary to jus cogens, and is therefore invalid.

9. Note that Lauterpacht's argument turns on the prohibition of genocide, not the right of self-defense. And he would give the Security Council a chance to resolve the apparent conflict itself.

10. Now, do any States pick up on Lauterpacht's argument? Or Bosnia's?

Yes.

One.

Iran.

11. In 1994, on at least three occasions, Iran states that the arms embargo on Bosnia violates jus cogens.

But which jus cogens norm does the embargo violate?

The prohibition of genocide?

The prohibition of aggression?

Or the right of self-defense?

12. In its March 1994 statement, Iran mentions aggression and self-defense, but not genocide. It's not clear which one Iran considers jus cogens.

13. In its April 1994 statement, Iran mentions all three. Though it's not entirely clear, the jus cogens norm Iran seems to have in mind is the right of "self-preservation in the face of total annihilation," as a component of the right of self-defense.

14. Finally, in its November 1994 statement, Iran again mentions all three norms, and it's hard to say which one Iran has in mind when it invokes jus cogens.

15. None of this helps the people of Bosnia. At least 100,000 people are killed, and countless others are brutalized and driven from their homes.

In 1995, Security Council Resolution 1021 lifts the arms embargo, after the war was over.

16. Last year, the UN's International Law Commission adopted a series of draft conclusions on jus cogens.

The ILC concludes that Security Council resolutions contrary to jus cogens are invalid, and that such resolutions should be interpreted to avoid such conflicts.

17. The commentaries don't cite Lauterpacht's separate opinion, and they cite a different statement by Iran.

But the Special Rapporteur's third report makes the influence of Lauterpacht, and of Iran, clear.

18. Since the pandemic began, I've found myself drawn to some fairly esoteric areas of international law and legal philosophy. My city has been through a lot, and I probably wanted a mental escape. But there's no escape, really.

19. Lawyers watch their new country torn apart and throw together an application for provisional measures. An ad hoc judge makes a dazzling argument that even he is not too sure is right. A State that fought a brutal war under an arms embargo declares another embargo illegal.

20. Out of all this, we try to extract a principle worth preserving. Through suffering, we learn, though too little and too late for too many of us. We take what little we learn and we make a law. We interpret and develop that law, hoping to learn in a better way.

21. That's it for 2020. I hope you've enjoyed these threads. Wishing you all a happy and healthy 2021.