CYIL vol. 10 (2019)

PAVEL ŠTURMA CYIL 10 ȍ2019Ȏ law ( jus cogens ) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable.” 22 Part Two deals with identification of peremptory norms of general international law. Conclusion 4 sets for this purpose with the following criteria: (a) it is a norm of general international law; and (b) “it is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and can be modified only by a subsequent norm of general international law having the same character”. 23 Obviously, the criteria are drawn from the definition in article 53 of the 1969 Vienna Convention. Conclusion 5 provides that customary international law is “the most common basis” for peremptory norms of general international law. However, treaty provisions and general principles of law may also serve as bases for norms of jus cogens . 24 The following draft conclusions develop and specify the terms used in conclusion 4. According to conclusion 6, the requirement of “acceptance and recognition” is distinct from acceptance and recognition as a norm of general international law. For jus cogens , there must be “evidence that such a norm is accepted and recognized as one from which no derogation is permitted and which can only be modified by a subsequent norm of general international law having the same character”. 25 Conclusion 7 refers to “international community of States as a whole”. It makes clear that acceptance and recognition by a very large majority of States is required for the identification of a norm as a peremptory norm of general international law ( jus cogens ); acceptance and recognition by all States is not required.” 26 It is primarily the acceptance and recognition by States. Other actors may provide context and may contribute to the assessment of the acceptance and recognition by the international community of States. Conclusion 8 deals with evidence of acceptance and recognition that may take a wide range of forms, including public statements, official publications, government legal opinions, diplomatic correspondence, legislative and administrative acts, decisions of national courts, treaty provisions, and resolutions adopted by an international organization or at an intergovernmental conference. In turn, conclusion 9 addresses subsidiary means for the determination of the peremptory character of norms of general international law. They include decisions of international courts and tribunals, in particular of the International Court of Justice, and the works of expert bodies established by States or international organizations and the teachings of the most highly qualified publicists of the various nations. Part Three of the draft conclusions addresses the legal consequences of peremptory norms of general international law. This is probably the most important part of the draft conclusions because it clearly shows that the legal consequences of jus cogens are not limited to the law of treaties but go beyond the 1969 Vienna Convention. Obviously, the first few draft conclusions concern effects of jus cogens on treaty law. Conclusion 10, dealing with treaties conflicting with a peremptory norm of general international law, draws the consequences from articles 53 and 64 of the 1969 Vienna Convention. 27 Conclusion 11 brings a useful

22 See doc. A/CN.4/L.929/Add.1, p. 5. 23 Ibid., p. 12. 24 Ibid., p. 14.

25 Ibid., pp. 18-19. 26 Ibid., pp. 20-21. 27 Ibid., p. 29.

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