Content uploaded by Ana Zdravkovic
Author content
All content in this area was uploaded by Ana Zdravkovic on Jan 30, 2021
Content may be subject to copyright.
Ana Zdravković*
FINDING THE CORE OF INTERNATIONAL LAW – JUS COGENS IN
THE WORK OF INTERNATIONAL LAW COMMISSION
Abstract
The aim of the paper is to contribute to the contemporary debate on the jus cogens
norms of international law, especially since the topic is being analyzed by the International
Law Commission. Besides providing comments on some of the conclusions of the ILC’s Special
Rapporteur concerning various aspects of jus cogens concept, such as the process of
identification of these norms or the notion of regional jus cogens, the paper endeavours to shed
a new light on the criteria for the creation of these norms by introducing one innovative, so far
hidden, requirement that can be deduced from the “Fourth report on peremptory norms of
general international law (jus cogens) by Special Rapporteur Dire Tladi”. Respectively, a norm
cannot gain a jus cogens status until the International Court of Justice qualifies it as such. Once
this additional requirement is recognized and accepted by the whole international community,
jus cogens concept can be further developed in order to be completely clarified and to start
fulfilling its main functions.
Key words: – Jus cogens. – Peremptory norms of General International Law. – International
Law Commission. – International Court of Justice.
* Ana Zdravković is currently a Ph.D candidate at the Faculty of Law University of Belgrade in International Law
and Human Rights Law, ana.zdravkovic@ius.bg.ac.rs
142
A. INTRODUCTION
“Jus cogens have the abbreviations JC and there was another fellow, very
long ago, who could walk on water, who could turn water into wine and who also
had the initials JC and I think this is suggesting something about the power of jus
cogens and the impact that they potentially could have”, were the exact words
used by Dire Tladi, UN Special Rapporteur for the topic of jus cogens, at one
conference at the King’s College London.
1
Rather controversial, these words are
likely to stick to one’s mind and be a reminder of an immense importance of the
topic in question.
Back in 1993, the International Law Commission’s (hereinafter: ILC)
member Andreas Jacovides presented a paper on jus cogens as a possible ILC
topic, noting that “no authoritative standards have emerged to determine the exact
legal content of jus cogens, or the process by which international legal norms may
rise to peremptory status”, but the proposal was rejected as premature and of no
useful purpose.
2
Eventually, in 2014 the time has come. During its sixty-sixth session, the
ILC decided to place the topic “Jus cogens” on its long-term programme of work.
3
Since then, four reports were drafted, dealing with different parts of jus cogens
puzzle, from identification of norms, consequences and regional jus cogens to
finally, an illustrative list of norms that have already gained the jus cogens status.
But what is the real significance of those reports, have they answered all of
the questions that were troubling international lawyers for decades?
1
“Making Sense of Higher Law”, Conference at the Yeoh Tiong Lay Centre for Politics, Philosophy and Law,
King’s College London, 16 March 2016, video available at https://www.youtube.com/watch?v=nSh5dEb1KbQ&t=242s
(01/07/2019)
2
Shelton, Sherlock Holmes and the Mystery of Jus Cogens, Netherlands Yearbook of International Law Jus
Cogens: Quo Vadis 2015, p. 46.
3
International Law Commission, Report of the International Law Commission, Jus cogens, 66th session, UN Doc.
A/69/10 Annex, 2014.
143
B. IDENTIFICATION OF JUS COGENS
Considering that Article 53 of the Vienna Convention on the Law of
Treaties (hereinafter: VLCT) sets out the only written legal definition of the
effects of jus cogens and consequences of conflicts with such a norm, it was
justifiably used by the Special Rapporteur as a starting point for the analysis of
the subject matter.
4
Article 53 provides as follows: “A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international law. For
the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international
community of states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international
law having the same character”.
From the terms of the Article 53, the Special Rapporteur has determined
two cumulative criteria for the identification of jus cogens, firstly that the norm
in question must be a norm of general international law and secondly that the
norm must be accepted and recognized by the international community of states
as a whole as one from which no derogation is permitted.
5
The part stating that
the norm can be modified only by a subsequent norm of general international law
having the same character has been correctly qualified as a description of the
process of modification of the jus cogens norm, rather than an independent
criterion for the identification of jus cogens norm.
6
I. What is general international law?
4
International Law Commission, Second report on jus cogens by Dire Tladi, Special Rapporteur, 16 March 2017,
A/CN.4/706, par. 33.
5
International Law Commission, fn. 5, par. 37.
6
Ibid.
144
In regard to the first criterion, the Special Rapporteur has clarified that it
implies the two-step process for the emergence of jus cogens norms, particularly
that the norm was established under general international law and after that it
elevated to the status of jus cogens.
7
However, there is no commonly accepted definition of general international
law. According to some authors, there is a distinction between general and
particular international law, the former consisting of norms binding on all
members of the international community, while the norms of the latter are binding
on less than all members.
8
Kunz has also taken the view that it is the range of spatial validity, not the
procedure of the creation of norms, that should be a distinctive criterion.
9
However, he went further to state that general international law could be created
solely by a custom, whereas particular international law could be created not only
by a custom, but also treaties.
10
As far as he is concerned, treaties always
constitute particular international law, no matter if they are bilateral, regional or
universal and no matter if they create concrete, individual or general, abstract
norms.
11
In conclusion, treaty law may become general international law, but only
if it eventually evolves into a customary law.
12
On the other hand, Tunkin believed that general international law
comprises both customary and conventional rules
13
and that principles of jus
cogens consist of rules accepted either expressly by treaty or tacitly by custom
14
.
7
Ibid, par. 40
8
Oppenheim, Lauterpacht, International Law: A Treatise, Longmans Green, vol. 1, 1948, pp. 4-5.
9
Kunz, General International Law and the Law of International Organizations, AJIL 1953, p. 457.
10
Ibid. For an opposite point of view, he refers to Guggenheim, Lehrbuch des Völkerrechts: unter
Berücksichtigung der internationalen und schweizerischen Praxis, Verlag für Recht und Gesellschaft, 1948, p. 48.
11
Kunz, fn. 10, p. 457.
12
Ibid, 459.
13
Tunkin, Is General International Law Customary Law Only?, EJIL 1993, p. 541.
14
Tunkin, Jus Cogens in Contemporary International Law, Toledo Law Review 1971, p. 116.
145
For Thirlway, it is universally accepted that, apart from jus cogens, a treaty
as lex specialis is law between the parties to it, in derogation of the general
customary law which would otherwise have governed their relations.
15
Similarly, the Special Rapporteur recalled that the Study Group on
fragmentation of international law had made a difference between general
international law and specialist systems as “trade law”, “human rights law”,
“environmental law”, “law of the sea”, “European law” etc. (and in some respect,
treaty law).
16
However, only few lines later, it was accurately admitted that this
kind of distinction might preclude some rules, such as those of international
humanitarian law, from acquiring the status of jus cogens.
17
Precisely, as it will
be shown further down in the text, most of the candidates for jus cogens status
indeed come from either international human rights law, international
humanitarian law or international criminal law, all of which could be treated as
lex specialis vis-à-vis general international law. Therefore, it only seems
appropriate that the sole criterion for defining general international law should be
the scope of applicability, since it does not deprive any branch of international
law of the chance to acquire the jus cogens status.
In that matter, the Special Rapporteur correctly indicated that the most
obvious manifestation of general international law is customary international
law
18
, or in other words, that “customary international law rules qualify as norms
of general international law for the purposes of the criteria for jus cogens derived
from article 53 of VCLT”
19
. The only issue with this statement is a bit of
hesitation, which is evident in the part that reads “for the purposes of the criteria
for jus cogens …”. The thing is, the concept of general international law cannot
15
Thirlway, The Law and procedure of the International Court of Justice, BYBIL 1989, p. 147.
16
International Law Commission, Fragmentation of International Law: Difficulties Arising from The
Diversification and Expansion of International Law, Report of the Study Group of the International Law
Commission, 13 April 2006, A/CN.4/L.682, par. 8.
17
International Law Commission, fn. 5, par. 41.
18
Ibid, par. 42, citing Cassese, For an enhanced role of jus cogens, in: Cassese (ed.), Realizing Utopia: The Future
of International Law, OUP 2012, p. 164.
19
Ibid, par. 47.
146
have multiple meanings depending on the purpose. Howsoever, the Special
Rapporteur drafted a pretty straightforward conclusion: “A norm of general
international law is one which has a general scope of application”
20
, which
confirmed the final adoption of the scope of applicability criterion.
It was followed by more than enough case law showing how international
tribunals often use “general international law” and “customary international law”
as synonyms. For instance, the ICJ recognized the prohibition of torture as “part
of customary international law” that “has become a peremptory norm”
21
or “many
rules of humanitarian law as constituting intransgressible principles of
international customary law”
22
. One of many examples is also Furundžija case, in
which the International Tribunal for former Yugoslavia found that “jus cogens
norms enjoy a higher rank in the hierarchy of international law than treaty law or
even ‘ordinary’ customary rules and that the most conspicuous consequence of
this higher rank is that the principle at issue cannot be derogated from by states
through international treaties or local or special customs or even general
customary rules not endowed with the same normative force”.
23
Orakhelashvili
offered an interesting and thought-provoking interpretation of Nicaragua case,
stating that the Court pointed out to the ILC’s qualification of the relevant norm
as peremptory and then used that as an evidence of the relevant norm’s customary
character.
24
By way of explanation, the Court assumed that if there is enough
evidence that a norm has gained a status of jus cogens, it could be presupposed
that it is also a norm of customary character and there is no need to go one step
backwards in proving that the source of the norm is indeed international
customary law. Finally, given the definition of a custom in Article 38 of the
Statute of the International Court of Justice, that refers to general practice
20
Ibid, draft conclusion 5, par. 1.
21
ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012, par. 99.
22
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, par. 79.
23
ICTY, no. IT-95-17/1-T, T.Ch., Prosecutor v. Furundžija, Judgement of 10 December 1998, par. 153.
24
Orakhelashvili, Peremptory Norms in International Law, OUP 2006, p. 42. For opposite point of view, see,
Shelton, Righting Wrongs: Reparations in the Articles on State Responsibility, AJIL 2002, p. 843.
147
accepted by law
25
, it can be concluded that customary law undoubtedly gives rise
to the norms of general international law.
According to the Special Rapporteur’s report, another source of general
international law is the general principles of law recognized by civilized nations
provided in Article 38 (1) (c) of the Statute of the International Court of Justice.
26
However, this statement is not accompanied by a detailed analysis of this source,
nor by a comparison between general legal principles inherent to international law
and general principles of law recognized by civilized nations. As a matter of fact,
general principles of law recognized by civilized nations are subsidiary source of
international law, which refers to norms common to national legal systems of
majority of states or at least states involved in a dispute.
27
Hence, they are
originally source of national laws and only give rise to the international law once
the International Court of Justice (hereinafter: ICJ) recognize and apply them in a
particular case.
28
Some of the examples would be res iudicata
29
, extra
compromissum arbiter nihil facere potest
30
or jura novit curia
31
. On the other
hand, general legal principles are those governing the whole international public
order, that are inherent to international law, such as principles deriving from
Article 2 of the Charter of the United Nations
32
. That is why many authors
consider only the latter as having a peremptory character.
33
All in all, linking jus
cogens to general principles of law recognized by civilized nations would require
understanding them not as principles deriving from domestic legal systems, but
25
UN, Statute of the International Court of Justice, 18 April 1946, Article 38.
26
International Law Commission, fn. 5, par. 48.
27
Kreća, Međunarodno javno pravo, Pravni fakultet Univerziteta u Beogradu, 2014, p. 95.
28
Ibid.
29
ICJ, Effects of the Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory
Opinion, I.C.J. Reports 1954, p. 53.
30
ICJ, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, I.C.J.
Reports 1949, pp. 12, 26.
31
PCIJ, Brazilian Loans, Judgment No. 15, P.C.I.J. Publications 1926, Ser. A, No. 20/21, p. 124.
32
United Nations, Charter of the United Nations, 24 October 1945, United Nations, Treaty Series XVI, Article 2.
33
See, Kreća, fn. 28, p. 96.
148
as principles recognized by nations as guiding their behavior in international
relations
34
and therefore capable of making general international law.
Last, but not less controversial question refers to treaties and their
capability to create general international law. The Special Rapporteur’s report
relies once again on the Study Group on fragmentation that took the view that
there is a distinction between general international law and treaty law (for the
purposes of systemic integration).
35
Another reference is made to the ILC’s
commentary to draft article 50 of the Draft Articles on the Law of Treaties, which
also distinguishes general rules of international law from treaty rules (through
which states may contract out of general international law).
36
However, as
Orakhelashvili stated, the ICJ, in the Nicaragua case, spoke of customary rules
made via concerted and collective expression of positions of dozens, even
hundreds of states, manifested through their participation in multilateral treaties
and the adoption of UN General Assembly resolutions.
37
In other words, a rule
that originate from a multilateral treaty, although once binding only on the parties
of that treaty, eventually can and probably will become a rule of international
customary law. During the implementation of the multilateral treaty obligations,
material element of state practice would be fulfilled, while psychological element
of acceptance of the norms thus practiced as legally binding (opinio juris) would
already be manifested since states decided to become parties of that specific
treaty. Hence, multilateral treaties may indeed be vehicles for peremptory norms
to be established as part of general international law.
38
The Special Rapporteur
proposed a completely tenable conclusion that a treaty rule may reflect a norm of
general international law capable of rising to the level of a jus cogens norm, which
34
Orakhelashvili, fn. 25, p. 126.
35
International Law Commission, fn. 5, par. 53.
36
Ibid, par. 55.
37
Orakhelashvili, Audience and authority – The Merits of the Doctrine of Jus Cogens, Neth. Yearb. Int. Law 2015,
p. 124.
38
Orakhelashvili, fn. 25, p. 112.
149
was provisionally adopted by the Drafting Committee.
39
The only objection that
could possibly be made is that the report has not emphasized enough the
importance and the impact that multilateral treaties could have not only on the
emergence, but also on evidencing jus cogens norms. Nowadays, one of the most
transparent and convincing methods for states to express their opinio juris
cogentis is indeed through a multilateral treaty.
Overall, even though international customary law is the most common basis
for the formation of jus cogens norms,
40
and most certainly is a formal source of
the norms of general international law, all other relevant sources should be treated
as mutually complementary, rather than mutually exclusive
41
.
II. How do we know that a norm was recognized and accepted as a norm
form which no derogation is permitted?
Only after has it been determined that a norm belongs to the general
international law, it can be proceeded with the next step, which is to examine
whether such a norm is accepted and recognized as a norm from which no
derogation is permitted, by the international community of states as a whole. The
Special Rapporteur greeted the “double acceptance” requirement, suggested by,
inter alia, Erica de Wet
42
, meaning that the norm should firstly be accepted as a
norm of general international law and after that, special qualities of that norm,
namely its non-derogability, are to be accepted (opinion juris cogentis).
43
The
materials capable of expressing the views of states in this regard are quite similar
39
Statement of the Chairperson of the Drafting Committee on peremptory norms of general international law (jus
cogens), 26 July 2017, annex, as in International Law Commission, Third report on peremptory norms of general
international law (jus cogens) by Dire Tladi, Special Rapporteur, 12 February 2018, A/CN.4/714, par. 11.
40
International Law Commission, ft. 5, draft conclusion 5, par. 2.
41
Orakhelashvili, fn. 25, p. 127.
42
De Wet, Jus Cogens and Obligations Erga Omnes, in: Shelton (ed.), The Oxford Handbook of International
Human Rights Law, OUP 2013, p. 542.
43
International Law Commission, fn. 5, par. 77.
150
to those that may constitute evidence of international customary law
44
, for
example treaties, resolutions adopted by international organizations, public
statements on behalf of states, official publications, government legal opinions,
diplomatic correspondence, decisions of national courts and judgments and
decisions of international courts and tribunals, while other materials, such as the
work of the ILC, expert bodies and scholarly writings may be considered as
secondary means of identifying beliefs of states that the norm in question is one
from which no derogation is permitted.
45
As comprehensive as this is, there still
remains one question unanswered in the Special Rapporteur’s report
46
, namely
how many states has to accept and recognize the particular norm. Although the
phrase “large majority of states” was used several times, on the one side it is not
sufficiently distinctive and on the other, members of the ILC expressed the view
that the requirement should be larger and proposed “a very large majority”
47
. With
all due respect, there is no sharp difference between those two phrases, and none
is actually applicable in practice. Therefore, it could be suggested that the same
criteria that the ICJ required in the Advisory Opinion on Legality of the Threat or
Use of Nuclear Weapons for the opinio iuris as an element of an international
custom was applied in regard with opinion iuris cogentis. So, at least two-thirds
of all members of the international community, including the most powerful states
in economic and military terms, should accept and recognize the norm in
question.
48
Formulated in that way, the threshold for a norm to become jus cogens
is perspicuous, though very high, as in the end it should be, since jus cogens norms
reflect the will, fundamental interests and public conscience of the whole
44
For detailed analysis see Hudson, Article 24 of the Statute of the International Law Commission, YILC, 2/1950,
UN Doc. A/CN. 4/16.
45
International Law Commission, fn. 5, paras. 2, 3, 4.
46
“Acceptance and recognition by a large majority of states is sufficient for the identification of a norm as a norm
of jus cogens. Acceptance and recognition by all states is not required.”, International Law Commission, fn. 5,
draft conclusion 8, par. 2.
47
International Law Commission, fn. 40, par. 10.
48
Sassoli, Bouvier, How Does Law Protect in War?, ICRC 1999, pp. 34, 35, as in Krstić, Univerzalna nadležnost
u međunarodnom pravu za teške povrede ljudskih prava, Pravni fakultet Univerziteta u Beogradu, 2013, p. 88.
151
international community and cannot be derogated once they are accepted and
recognized.
III. Can the jus cogens intrigue now get the all-clear sign?
Now that the criteria necessary for the identification of jus cogens have
been analyzed, it could be reasonably expected that anyone would be able to
determine which norms have fulfilled them and thus have become jus cogens.
Unfortunately, it is not that simple. For ages have many theorists tried to point out
to various norms as candidates for the jus cogens status, yet it had little to no
relevance, as long as some international tribunal, most preferably ICJ, explicitly
recognized the norm as the jus cogens one. To be completely fair, views of
academic writers may throw some light on the particular norms and thus
contribute to the court’s decision but are never accepted alone as sufficient
evidence of jus cogens status. To the contrary, once the ICJ qualifies a norm as
jus cogens, it is often accepted as the final and undebatable argument.
In this respect, it does not come as a surprise that the Special Rapporteur
has also given the highest value to the Court’s standings on whether a norm has
gained the status of jus cogens. In his analysis of the candidate norms, almost
every time one of the first arguments was the case law of ICJ, no matter if the
Court has explicitly determined the peremptory status of the norm (as with the
prohibition of aggression, the prohibition of torture, the prohibition of genocide,
the prohibition of crimes against humanity
49
) or indirectly, through inclusion of
the norm in the list of rules creating erga omnes obligations (the prohibition of
apartheid and racial discrimination, the prohibition of slavery and the right to self-
49
ICJ has actually never qualified the prohibition of crimes against humanity as a jus cogens norm. However, the
Special Rapporteur has taken the view that since the ICJ has recognized the prohibition of torture as a jus cogens
norm, it a fortiori suggests that a prohibition of the perpetration of that act on a widespread or systematic basis
amounting to crimes against humanity would also have the character of jus cogens, International Law Commission,
Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special Rapporteur,
31 January 2019, A/CN.4/727, para. 84.
152
determination) or when it described the basic rules of international humanitarian
law as “intransgressible”.
50
As for other arguments used by the Special
Rapporteur, they usually included the case law of the International Tribunal for
the Former Yugoslavia, the Inter-American Commission or the Court of Human
Rights, the European Court of Human Rights, the African Commission on Human
and Peoples’ Rights, the International Criminal Court, multilateral treaties,
decisions of national courts, academic writings or writings of the International
Law Commission, General Assembly and Security Council resolutions.
51
With
that being said, it is important to note that most of these could also be used to
support some other norms that may be considered as jus cogens, but the only
difference is that the ICJ has never had the opportunity to take them into
consideration and hence, has never qualified them as jus cogens or rules creating
erga omnes obligations. In the words of the Special Rapporteur “beyond the list
here proposed, other norms that have been cited as norms of jus cogens, and
whose jus cogens status enjoys a degree of support, include the prohibition of
enforced disappearance, the right to life, the principle of non-refoulement, the
prohibition of human trafficking, the right to due process (the right to a fair trial),
the prohibition of discrimination, environmental rights and the prohibition of
terrorism.”.
52
And then he continued to provide arguments in support of their
possible jus cogens status, which included case law of the Inter-American Court
of Human Rights, the African Commission on Human and Peoples’ Rights,
multilateral treaties, General Assembly resolutions, decisions of domestic courts
and the literature. So, almost all the same evidences, except for the ICJ cases.
Let us take the principle of non-refoulement as an example. Some of the
points stated by the Special Rapporteur were the fact that the Inter-American
Court of Human Rights linked the principle to the prohibition of torture and
50
Ibid.
51
Ibid.
52
Ibid., par. 123.
153
therefore held that the principle is “absolute and also becomes a peremptory norm
of customary international law; in other words, of jus cogens”
53
, that the General
Assembly also described this principle as “a fundamental principle which is not
subject to derogation”
54
, as well as that some multilateral treaties contains the
principle, that Latin American States have recognized its jus cogens character
55
and that several writers have concluded that the principle is a norm of jus cogens.
56
However, there was no mentioning of the Cartagena Declaration on Refugees
which explicitly affirms that the principle is “imperative in regard to refugees and
in the present state of international law should be acknowledged and observed as
a rule of jus cogens”.
57
The same belief was presented by Judge Pinto de
Albuquerque in his concurring opinion in the Hirsi Jamma case of the European
Court of Human Rights.
58
Be as it may, the principle of non-refoulement is
inseparably linked with the observance of basic human rights, imprimis the
freedom from torture and inhumane treatment, since it directly contributes to the
prohibition of torture being respected and truly implemented. The Special
Rapporteur included the prohibition of torture to the list of jus cogens norms,
mostly due to the fact that the ICJ unequivocally detected that status in the
Belgium v. Senegal case.
59
Moreover, considering the case law of the European
Court of Human Rights which is plentiful with rejections of the risk of subjecting
foreign nationals to ill-treatment, even in cases when actions are carried out by a
non-contracting states and national security is at stake
60
, would that all be enough
for a conclusion that the principle of non-refoulment has gained the status of jus
53
IACHR, Rights and Guarantees of Children in the Context of Migration and/or in Need of International
Protection, Advisory Opinion of 19 August 2014, par. 225.
54
UNGA Resolution 51/75 of 12 December 1996 on the Office of the UNHCR, par. 3
55
Brazil Declaration: “A Framework for Cooperation and Regional Solidarity to Strengthen the International
Protection of Refugees, Displaced and Stateless Persons in Latin America and the Caribbean”, 3 December 2014.
56
International Law Commission, fn. 50, paras. 131-133.
57
Cartagena Declaration on Refugees, Colloquium on International Protection of Refugees in Central America,
Mexico and Panama, Cartagena, 19-22 November 1984, OAS Doc. OEA/Ser.L/V/II.66, doc. 10, rev. 1, par. III.5.
58
ECHR, no. 27765/09, Hirsi Jamaa and Others v. Italy, Judgment of 23 February 2012, para. 64.
59
International Law Commission, fn. 50, par. 69.
60
Gentili, European Court of Human Rights: An Absolute Ban on Deportation of Foreign Citizens to Countries
Where Torture or Ill-Treatment is a Genuine Risk, ICON 2010, p. 322.
154
cogens norm, at that very moment when the prohibition of torture had gained the
same status? Apparently not. Although the connection is obvious and the
indications are more than clear, it is obvious that until the ICJ says its piece, there
will be no room for extensive interpretation.
The same, if not more, could be said for the prohibition of arbitrary
deprivation of life, which is a non-derogable right according to the International
Covenant on Civil and Political Rights
61
, the European Convention on Human
Rights
62
, the American Convention on Human Rights
63
, while the African
Commission on Human and Peoples’ Rights has recognized it explicitly as “a jus
cogens norm, universally binding at all times”
64
. What is more, the Human Rights
Committee has stated that “the right not to be arbitrarily deprived of life is a norm
of jus cogens”.
65
To sum up, all of the regional human rights mechanisms, as well
as the United Nations human rights mechanism have recognized the prohibition
of arbitrary deprivation of life as a non-derogable one, i.e. hierarchically superior
to all other human rights norms and hence of a peremptory character, but that was
not sufficient enough for the prohibition to be included in the Special
Rapporteur’s list of jus cogens norms. Would the situation be different if the ICJ
recognized the prohibition as a jus cogens norm? Probably. Once again, there was
enough space for drawing an analogy, since the prohibition of arbitrary
deprivation of life is in the essence of the prohibition of genocide, the prohibition
of aggression and crimes against humanity, all of which were declared as jus
cogens by the ICJ.
Finally, how come that the prohibition of racial discrimination was
qualified as the jus cogens norm, while the general prohibition of discrimination
61
Article 4, International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, 171,
1966.
62
Article 15, European Convention on Human Rights, Council of Europe, 1950.
63
Article 27, American Convention on Human Rights, The Organization of American States, 1969.
64
African Commission on Human and Peoples’ Rights, General comment No. 3 on the African Charter on Human
and Peoples’ Rights: The right to life (article 4), 2015, par. 5.
65
Human Rights Committee, General comment No. 29 on derogation during a state of emergency, Official Records
of the General Assembly, Fifty-sixth Session, Supplement No. 40, vol. I, 2001, (A/56/40 (Vol. I)), annex VI, par.
11.
155
was not? Have states ever made it clear that they consider racial discrimination to
be more important or more severe violation of one’s rights than, for example,
discrimination because of religious belief, national origin, sex, or any other
personal characteristics? Not that the author is aware of. And not that it would
have any truly convincing argument to differentiate the status of these
prohibitions. The only difference between these prohibitions is the fact that the
ICJ gave some kind of support to the jus cogens status of the prohibition of racial
discrimination and not to the others.
To be fair, the Special Rapporteur made a dissociation in regard to all of
the other norms, so called “candidates for the jus cogens status” by stating that
“the present report does not take a view on whether the norms in this section do
qualify as norms of jus cogens”
66
. However, at that very moment when it was
chosen that a (non-exhaustive) list of jus cogens norms will be made and included
in the report, all of the norms that did not find their place in the list was deemed
to be seen as ones that have not yet gained the jus cogens status, in a word, jus
cogens in statu nascendi.
To conclude with, although the decision to make a list of jus cogens norms,
though non-exhaustive one, can be perceived as something revolutionary and
game-changing for the contemporary international law, it is highly questionable
what are its real implications. What was actually done was listing every norm that
has already been qualified as jus cogens by the ICJ and leaving all of the other
candidates, that are actually debatable and could use some clarification, aside. At
the second glance, maybe that is the whole point. Maybe there is a hidden
additional requirement for a norm to achieve the status of jus cogens, besides all
of the above-mentioned, namely that the ICJ has recognized the norm as such. In
other words, only after the ICJ makes an assessment whether criteria for jus
cogens status of a norm are fulfilled and pronounce that they are, the norm is
66
International Law Commission, fn. 50, par. 134.
156
actually entering the realm of jus cogens. Therefore, this constitutive role of the
ICJ should indeed be considered as the final, ultimate requirement for a norm to
gain a jus cogens status.
C. REGIONAL JUS COGENS
Probably the most prominent author on the topic, Robert Kolb has adopted
the broad conception of jus cogens when he took the view that any agreement
between states that a particular rule (including even procedural rules of the ICJ)
may not be derogated from would qualify as a peremptory norm, hence stating
that there is “no reason to deny the existence of regional peremptory norms”.
67
That may be true if one follows his reasoning and the proposed legal technique,
yet not when it comes to the ILC’s reports. As was explained above, the norm in
question must be a norm of general international law and accepted and recognized
by the international community of states as a whole as one from which no
derogation is permitted, in order to become jus cogens. Therefore, it is clear from
the very criteria that there is no possibility for a norm to be regional and jus cogens
at the same time. Namely, if a norm is of regional character, it is not accepted and
recognized by the international community of states as a whole and cannot be a
jus cogens norm. Indeed, there are many other difficulties related to this concept,
cited by the Special Rapporteur, such as the question of definition of ‘region’
68
,
the persistent objector rule
69
or the situation when the state member of a particular
region would conclude a treaty with a third state
70
, that is in conflict with a
regional jus cogens, it is unclear what would the legal consequences be, i.e. would
that treaty be void and if yes, how could that kind of legal uncertainty be justified.
67
Kolb, Peremptory International Law (Jus Cogens): A General Inventory, Hart Publishing, 2015, pp. 51-54, 97.
68
International Law Commission, fn. 50, par. 29.
69
Ibid., par. 28.
70
Ibid., par. 34.
157
As might be expected, this does not mean that groups of states cannot have
common moral values that are in the background of norms that they consider to
be more important than others, as is the case with absolute and non-derogable
human rights, which differ from region to region, but are not all jus cogens norms.
The analysis of the Special Rapporteur has resulted in the similar manner, with
the assertion that there is no support in the practice of states for the notion of
regional jus cogens
71
, but surprisingly the draft conclusion was not proposed. In
the words of the Special Rapporteur “while a draft conclusion explicitly stating
that international law does not recognize the notion of regional jus cogens is
possible, the Special Rapporteur is of the view that such a conclusion is not
necessary, and an appropriate explanation could be included in the
commentary”.
72
While it was shown that regional jus cogens is incompatible with
the definition of jus cogens, reasons for avoidance of making such a conclusion
are not obvious, so one can only wait for the commentary in order to discover
them. In any case, in the end of this chapter the following conclusion may be
regarded as certain – regional jus cogens represents no more than contradictio in
adiecto.
D. ARE WE BEATING AROUND THE BUSH OR HAVE WE FINALLY
FOUND THE CORE OF INTERNATIONAL LAW?
Long ago, Verdross famously stated, “a truly realistic analysis of the law
shows us that every positive juridical order has its roots in the ethics of a certain
community, that it cannot be understood apart from its moral basis”.
73
In that
manner, the fact that ILC is working on jus cogens norms is probably the sign of
the maturity of international legal order.
71
Ibid., par. 47.
72
Ibid., par. 47.
73
Verdross, Forbidden Treaties in International Law: Comments on Professor Garner’s Report on ‘The Law of
Treaties’, AJIL 1937, pp. 574, 576.
158
However, it must not be forgotten what is one of the primary roles of jus
cogens norms, besides their originally intended - to outlaw immoral treaties,
specifically to be the effective tool for solving the conflict of different
international norms. The ILC Study Group on fragmentation of international law
concluded that hierarchy does exist in international law with norms of jus cogens
being superior to other rules on account of their contents as well as the universal
acceptance of their superiority.
74
In that regard, jus cogens should provide a means
to balance interests and interpret legal obligations in ways that affirm “the
emergence of values which enjoy an ever-increasing recognition in international
society”.
75
Unfortunately, jus cogens norms have not yet had a chance to fulfil
that function. So far, they were usually invoked in the case law of international
courts just to strengthen the moral appeal of some relevant arguments, hence had
only declarative character and have almost never been used in the context of
invalidation of immoral treaties, let alone within the circumstances of conflict of
norms.
76
Not until their identification, content and legal effects are well-defined
and undebatable, will they be taken seriously and given the opportunity to
accomplish their mission. And that is precisely why are the ILC’s reports of
paramount importance for further development of international law.
One of the implications of the last, fourth report of the ILC’s Special
Rapporteur is presented in this paper and is concerning the proactive and
constitutive role of the ICJ in the creation of jus cogens norms. Whether it was
the hidden intention of the Special Rapporteur to lead readers to this conclusion
or just fortuitousness, it is perfectly fitting the real state of affairs. Only after the
ICJ pronounce that the norm is of jus cogens status, one can be certain that it really
is. The sooner this additional, hidden criterion is recognized and accepted by the
74
International Law Commission, fn. 17, paras. 31-32.
75
ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgement, I.C.J. Reports,
2002, Joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, par. 73.
76
De Wet, Entrenching international values through positive law: The (limited) effect of peremptory norms, KFG
Working Paper Series 2019, pp. 16-17
159
whole international community, the sooner can jus cogens concept be further
developed and hence start fulfilling its main functions.
