CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ THE WORK OF THE INTERNATIONAL LAW COMMISSION AT THE FINAL YEAR… Part Two of the draft conclusions deals with the identification of jus cogens norms. Conclusion 4 sets out the criteria for the identification of peremptory norms of general international law. 7 The criteria are drawn from Article 53 of the 1969 Vienna Convention on the Law of Treaties, reproduced in conclusion 3. Next, conclusion 5 concerns the bases of peremptory norms of general international law, reflecting that such a norm must be a norm of general international law. The Commission decided to use the word “basis” and “bases” instead of the term “sources”. Accordingly, customary international law is the most common basis for the norms of jus cogens . However, the Commission admitted that treaty provisions and general principles of law may also serve as bases for peremptory norms of general international law. 8 Conclusion 6 addresses the second criterion for the identification of a peremptory norm of general international law ( jus cogens ), which is that the norm in question must be accepted and recognized by the international community of States as a whole as one from which no derogation is permitted, and which can only be modified by a subsequent norm having the same character. Conclusion 7 then clarifies the meaning of “international community of States as a whole”. It makes it clear that “acceptance and recognition by a very large and representative majority of States is required” but acceptance and recognition by all States is not required. 9 Conclusion 8 states that evidence of acceptance and recognition that a norm of general international law is a peremptory norm may take a wide range of forms. They include public statements made on behalf of States, official publications, government legal opinions, diplomatic correspondence, constitutional provisions, legislative or administrative acts, decisions of national courts, treaty provisions, resolutions adopted by an international organization, or at intergovernmental conference. 10 In addition, conclusion 9 also refers to subsidiary means for determining the peremptory character of norms of general international law. Those are decisions of international courts and tribunals, in particular of the International Court of Justice, the works of expert bodies established by States or international organizations, and the teachings of the most highly qualified publicists of various nations. This provision mirrors Article 38(1)(d) of the Statute of the ICJ. The Commission also admitted, with caution, that regard may also be had, as appropriate, to decisions of national courts. 11 Part Three of the draft conclusions addresses legal consequences of peremptory norms of general international law ( jus cogens ). These consequences include, but are not limited to, the law of treaties. Paragraphs 1 and 2 of Conclusion 10 refer to treaties conflicting with a peremptory norm of general international law that mirror Articles 53 and 64 of the Vienna Convention on the Law of Treaties. Such a treaty is void or becomes void and terminates. 12 Conclusion 11 (on separability of treaty provisions) addresses circumstances where only some provisions are in conflict with a peremptory norm of general international law ( jus cogens ) while other provisions are not in conflict with such a norm. 13 Paragraph 1 concerns cases

7 Ibid., p. 29. 8 Ibid., p. 30. 9 Ibid., p. 37. 10 Ibid., p. 40. 11 Ibid., pp. 43–45.

12 Ibid., p. 48. 13 Ibid., p. 51.

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