CYIL vol. 14 (2023)

ERNEST PETRIČ CYIL 14 (2023) was part of the so-called Marxist legal theory bothered me while I was still a student of international law. I found it difficult to accept that whatever States might agree, it is a binding international law. When doing research on my dissertation on the “right to the homeland” (Das Recht auf die Heimat) in the context of the fate of German minorities in Eastern and Central Europe after 1945 on the basis of the Potsdam Protocol, which determined the collective expulsions and deportations of the members of these minorities from those parts of Europe, I asked myself whether these stipulations were in fact based on international law since it seemed to me that they were against some fundamental principles of law such as prohibition of collective punishment. I was even more disturbed by the famous Ribbentrop Molotov Pact, which was an agreement between Nazi Germany and the Stalinist Soviet Union (1939) on the division of Poland and its liquidation as a State, and on the annexation of the Baltic States by the Soviet Union. Also the infamous Munich Agreement (1938) by which England and France agreed to the division of Czechoslovakia belonged to treaties which were after Second World War considered null and void, but at their conclusion they functioned as valid treaties, which they never should have. I could name more reasons why my reservations about the positivist view of international law, especially its variant in the Eastern European doctrine of international law, grew and strengthened. My doubts were confirmed concerning the positivist approach to international law during my doctoral studies with Professor Alfred Verdross in Vienna. Alfred Verdross was a member of the Commission (1957–1966) and among others was credited for the fact that the Commission (and then also the Conference of States) included provisions in the draft Convention on the Law of Treaties (especially Articles 53, 64, and 71), which brought back the concept of jus cogens into international law. Simply put, according to these provisions (Article 53), States may not conclude treaties contrary to jus cogens . However, if such treaties are concluded they are without legal effects, they are null and void (Article 71). Important questions such as what is the nature of jus cogens in international law, when and which norms or principles of international law have the quality of jus cogens , what is the relationship of jus cogens norms with other norms of international law, and which norms of modern international law are actually jus cogens 35 and some others the Commission did not answer at that time. Half a century later, the Commission tried to answer them after several years of research and work on this topic. Despite different views present in it, the Commission led by Special Rapporter professor Dire Tladi was able to answer a series of challenging questions by consensus elaborated in the conclusions on jus cogens . By adopting them the Commission reconfirmed the existence of peremptory norms ( jus cogens ) in international law and their hierarchical primacy over other norms of international law. It was accepted as a common position while also taking into account the comments and opinions of States 36 that jus cogens norms and principles are norms of general international law binding States erga omnes , protecting the fundamental values of human society, and that jus cogens norms themselves derive from these fundamental values. By the Commissions’ conclusions it is indicated, that jus cogens norms of international law do not primarily protect the interests of States but fundamental values of humanity. Jus cogens is exempted from the 35 See draft report of the International Law Commission on the work of its seventy-third session, Chapter IV: Peremptory norms of general international law ( jus cogens ), A/CN.4/L.960/Add.1. 36 See State comments: Peremptory norms of general international law ( jus cogens ), Comments and observations received from Governments, A/CN.4/748.

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