CYIL 2015

ČESTMÍR ČEPELKA

CYIL 6 ȍ2015Ȏ

1. Introduction In 2014 the International Law Commission (ILC) included the topic jus cogens in its Long-Term Programme. 1 It was also decided to prepare a syllabus of possi ble future topics (taking into consideration that of 1996) 2 by the end of the pres ent quinquennium and to establish a final list of these topics, possibly in 2016. It is then shortly expected that the concept of jus cogens will become a topic of the Commission for future study and so terminate the demands, postponed even many times, of the needs of States as well as of international law doctrine. Rules juris cogentis have been stabilized through the medium of customary international law mainly as a consequence of German Nazi politics. The Nuremberg trials are proof of this development. The first written expression of this progress is the Vienna Convention on the Law of Treaties (1969), Article 53 3 – however, without saying which are those rules juris cogentis, leaving the content of these rules to be worked out in State practice and in the jurisprudence of international tribunals. Nearly 30 years (27 exactly) passed before the Commission’s research of the subject of jus cogens was included in the Long-Term Programme (1096). 4 But the Commission did not decide at that time to incorporate the topic in its Programme of Work. In the meantime, the Commission in 2001 adopted the entire Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. 5 In the commentary to its Article 40 examples of rules juris cogentis are indicated. 6 In 2002 the Commission began to study the topic Fragmentation of international law: difficulties arising from the diversification and expansion of international law (2002 – 2006), thematically inter alia predestined to deal with rules juris cogentis . Finally the Commission accepted 42 Conclusions, 7 on the basis of the Report of the 1 ILC Report on the work of its sixty-sixth session, 2014, A/69/10, p. 265, Chapter XIV, Other decisions and conclusions of the Commission, para. 268. “The Working Group recommended the inclusion in the long-term programme of work of the Commission of the topic, ’Jus cogens’, on the basis of the proposal prepared by Dire D. Tladi (South Africa)”. In the Annex of this Report, p. 24. 2 See Yearbook ILC 1996, vol. II (Part Two), Annex II., p. 133, (I.) Sources of international law, (d) Jus cogens (and related concepts). Proposed on the motion of A. Jacovides (Cyprus), his outline “Jus cogens”, see A/CN. 4/454, p. 213, in: Yearbook of ILC, 1993, vol. II(1). 3 Article 53. Treaties conflicting with a peremptory norm of general international law ( jus cogens ): “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.” 4 See note 2 above. 5 ILC Report on the work of its fifty-third session, 2001, A/56/10.

6 Ibid. (note 5 above), Commentary on Article 40, paras. 4-6, pp. 283-284. 7 ILC Report on the work of its fifty-eighth session 2006 (A/61/10), p. 407.

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