CYIL 2015

JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION the sole codification of jus cogens , albeit with restrictions on international humanitarian law. It is important to add that the Court shall have the power to exercise its jurisdiction only as being complementary to national criminal jurisdictions (Art. 1) or if the relevant State is unwilling or genuinely unable to carry out the investigation or prosecution (Art. 17). This requirement is indeed a typical feature of norms juris cogentis . 4 The obligation to respect the right of self-determination Currently the principle of self-determination is stabilized at a minimum as a legal norm having jus cogens status. By contrast, in the sixties of the last century the principle of self-determination necessarily possessed the character of jus cogens , for at that time decolonization had been achieved. 72 Post-colonial States themselves voluntarily degraded the normative status of this rule ( jus cogens ) by forcibly repressing any attempt of an ethnic and/or linguistic group within this State to secede and form a new State. 73 The supposed right of peoples to self-determination and its correlative obligation in their application beyond the colonial context have also been considered by the Badinter Arbitration Commission. 74 The right to self-determination was here reduced to a mere postulate respecting existing frontiers. 75 Needless to say, numerous scholars do not agree with this conclusion. 76 5. Rules of non-derogable status but not being noms juris cogentis Derogation is ex lege interdict if the issue is that of a peremptory norm of general international law ( jus cogens ). However, there are norms of general international law in the occurrence of which no derogation can occur either. The applied reason is indeed their factual or logical impossibility. 77 To give an illustration: the general rule 72 Significant in this relation was the Declaration on the Granting of Independence to Colonial Countries and Peoples. Adopted by General Assembly resolution 1514 (XV) of 14 December 1960. 73 In this respect the case of Katanga (1960-1963) is best known , although with many external political interests; see http://en.wikipedia.org/wiki/State_of_Katanga. 74 http://en.wikipedia.org/wiki/Arbitration_Commission_of_the_Peace_Conference_on_Yugoslavia 75 See Pellet A., The Opinions of the Badinter Arbitration Committee. A Second Breath for the Self Determination of Peoples, European Journal of International Law (EJIL), vol. 3 (1992), p. 178-185. Appendix: Opinions of the Arbitration Committee, Opinion No. 2, p. 183: “(...) 1. The Committee considers that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise. 2. Where there are one or more groups within a state constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law (...).” 76 E.g. Orakhelashvili, A . The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions, European Journal of International Law (EJIL), vol. 16 (2005), No. 1, p. 59, 64: “The right of peoples to self-determination is undoubtedly part of jus cogens;” p. 76: “(…) the right of peoples to self-determination (…) consists in the entitlement of peoples to decide freely on their political organization and future.” 77 See http://www.thefreedictionary.com/Logical+impossibility: “A condition or statement involving contradiction or absurdity; as, that a thing can be and not be at the same time.”

129