CYIL vol. 8 (2017)

Czech Yearbook of Public & Private International Law

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 8

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2017

Editor-in-Chief: Professor PAVEL ŠTURMA This Yearbook is included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 8. – Praha : Česká společnost pro mezinárodní právo, 2017. – xiv, 648 stran

Vydáno v nakladatelství Eva Rozkotová ISBN 978-80-87488-29-4 (Rozkotová Eva) 341.1/.8 * 341.9 * (437.3) * (048.8:082) * (058) – mezinárodní právo veřejné – mezinárodní právo veřejné – Česko – mezinárodní právo soukromé – mezinárodní právo soukromé – Česko – kolektivní monografie – ročenky – public international law – public international law – Czechia – private international law – private international law – Czechia – collective monographs – yearbooks

341 - Mezinárodní právo [16] 341 - International law [16]

Tato Ročenka je vydávána s ϐinanční podporou Rady vědeckých společností při Akademii věd ČR. This Yearbook is published with a ϐinancial support of the Council of Scientiϐic Societies of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Weil, Gotshal & Manges LLP. © Česká společnost pro mezinárodní právo, 2017 © Czech Society of International Law, 2017 Vydala Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu Passau-Berlin-Praha ISSN 1805-0565 ISBN 978-80-87488-29-4

BOARDS AND EDITORS

EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor VLADIMÍR KOPAL † West-Bohemian University, Faculty of Law Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague

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EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, member of the ILC

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Vladimír Balaš, Veronika Bílková, Petra Ditrichová, Tomáš Doležal, Martin Faix, Jan Ondřej, Monika Pauknerová, Michal Petr, Pavel Šturma.

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CONTENTS

PREFACE Pavel Šturma

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ABBREVIATIONS

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I. SYMPOSIUM: LAW OF INTERNATIONAL RESPONSIBILITY Introduction to Section “Symposium: Law of International Responsibility” Pavel Šturma Peremptory Norms of International Law and Invocation of International Responsibility Josef Mrázek

1

3

4

Responsibility of State and Responsibility of Individual – Old Problems and New Challenges for International Law Karolina Wierczyńska

23

Reponsibility for Violations of Investors’ Rights under New EU Investment Agreements Tomáš Fecák

37

International Responsibility in the Context of Disaster Response Adam Giertl

60

II. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS

77

Personal Staus of Refugees: The Original International Solution Dalibor Jílek and Jana Michaličková

79

Failure to React as Evidence of opinio iuris (a Comment to the ILC’s First Draft Conclusions on Identification of Customary International Law) Pavel Caban Legal Status of Unilateral Coercive Measures under Customary International Law Zuzana Trávníčková

107

116

Irregular Migration through South Mediterranean Route: Actions by Coast Guard Vessels and NGO Vessels Birutė Pranevičienė – Violeta Vasiliauskienė

126

The Importance of Customary Law for the Codification of the Law of Treaties Sandra Brožová

139

Existence of a Dispute in Front of the ICJ Milan Lipovský

150

III. INTERNATIONAL LAW AND EUROPEAN LAW

159

The Charter of Fundamental Rights of the European Union vis-à-vis the Member States – Scope of its Application in the View of the CJEU Ondrej Hamuľák – Ján Mazák

161

Migrant Integration as a New EU Agenda Harald Christian Scheu

173

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Ten Years after the Viking Judgment: EU Court of Justice still in Search of Balance between Market Freedoms and Social Rights Václav Šmejkal Legal Status of the Notarial Profession as a Specific Profession in Europe – the Example of the Czech Republic and Hungary Monika Forejtová 197 Twice about ne bis in idem: Conflicting Approach of European Courts to the Same Principle Michal Petr 210 Does the Full Harmonization of the Consumers’ Protection against Unfair Commercial 182

Practices via UCPD fit in Europe 2020? Radka MacGregor Pelikánová – Marek Beneš

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IV. USE OF FORCE AND SO-CALLED ISLAMIC STATE The Use of Force against the Islamic State ( Jus ad Bellum Aspects) Veronika Bílková Questions of International Humanitarian and Human Rights Law in the Case of a Foreign Military Intervention against the Islamic State Tamás Lattmann Money Laudering as a Form of Financing Terrorism through the Prism of Terrorist Organization “Islamic State of Iraq and Levant” Jelena Dinic

233

235

259

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V. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW 289 Indirect Obligations of Business Entities under the European Convention on Human Rights Alla Tymofeyeva 291 African Court on Human and Peoples’ Rights: Twenty Years from Addis Ababa Protocol Tomáš Bruner 306 States´ Obligations under Common Article 1 of the Geneva Conventions in the Context of Multinational Military Operations Martin Faix – Tuomass Heikkinen 321

VI. INTERNATIONAL CRIMINAL LAW The Concept of Crimes against Humanity Čestmír Čepelka

337

339

Brothers and Sisters in Arms as Victims of War Crimes: Ntaganda Case before the ICC Ondřej Sváček VII. ENVIRONMENTAL PROTECTION AND LAW OF THE SEA “Junction Area“ – a New Legal Regime Permanent Court of Arbitration (PCA) Case No. 2012-04 (Slovenia v. Croatia) Ernest Petrič

346

359

361

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The Issues of Sovereignty and Ownership in Respect to the Sea-bed and Ocean Floor and its Resources (Including Exploration and Exploitation of Resources from the Sea-bed Beyond the Boundaries of the National Jurisdiction of States) Jan Ondřej The Vienna Convention on Civil Liability for Nuclear Damage and Radioactive Waste Management: Problems Revisited Jakub Handrlica 405 Restrictions of Personal Freedom in the Context of Psychiatric Care in the Czech Republic Petr Šustek 407 Reflections of Ethical Debate in the International Law Regulation of Stem Cell Research Martin Šolc 425 Doctrine of Loss of Chance in Medical Malpractice Cases: Comparative, International and Transnational Aspects Tomáš Holčapek 444 From Turkey – Textiles to Peru – Additional Duty : The Contribution of the WTO Case-Law on the Relation between the Marrakesh System and Regional Trade Agreements Elisa Baroncini 478 WTO in Context of Brexit Kristýna Urbanová 496 No Reason to Party: United Kingdom as Party to EU Free Trade Agreements after Brexit Ondřej Svoboda 507 Lis Pendens between International Investment Tribunals and National Courts Zdeněk Nový 515 War: Foreign Investments in Danger Can International Humanitarian Law or Full Protection and Security Clause Always Save it? Petr Stejskal 529 379 392 VIII. HEALTH LAW, ETHICS, AND HUMAN RIGHTS IX. VIEWS ON INVESTMENT AND TRADE LAW 459 Countermeasures and their (In)Comparable Congruence in International Investment Arbitration & the WTO Law Katarína Chovancová 461

X. CZECH PRACTICE OF INTERNATIONAL LAW

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The Work of the International Law Commission at the beginning of the New Term: Crimes against Humanity and Other Topics Pavel Šturma The International Law Aspects of the New Czech Act on Foreign Service Petr Válek

553

563

Application of CILFIT Criteria by Czech Supreme Courts Václav Stehlík

577

VII

The Czech Republic before the European Court of Human Rights in 2016 Vít Alexander Schorm List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2016 till 31st December 2016 Milan Beránek 596 The Czech Republic’s Push for Innovative Agenda in the UNIDROIT and the UNCITRAL Ondřej Svoboda – Tomáš Kozárek – Alex Ivančo 603 589

XI. SHORTER ARTICLES AND NOTES

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Moot Courts on Issues of Public International Law in the Year 2016/2017 Milan Lipovský Avec un brin de nostalgie : On the Occasion of the 90th Birthday of Professor Čestmír Čepelka Pavel Šturma Pavel Šturma, Katarína Chovancová, Katarína Šmigová, Jaroslav Větrovský: Immunities of States and Their Officials in Contemporary Law Metod Špaček Claus Kress, Stefan Bariga: Crime of Agression Commentary Milan Lipovský Ondrej Hamuľák: National Sovereignty in the European Union David Sehnálek XII. BOOK REVIEWS

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C. L. Lim (ed.): Alternative Visions of the International Law on Foreign Investment: Essays in Honour of Muthucumaraswamy Sornarajah Jürgen Kurtz: The WTO and International Investment Law: Converging Systems Ondrej Svoboda 629 Pavel Šturma, Milan Lipovský (eds.): Preventive Mechanisms under the Optional Protocol to the Convention against Torture [Preventivní mechanismy dle Opčního protokolu k Úmluvě proti mučení] Štefan Viedenský 633

XIII. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY

635

Zuzana Trávníčková

637

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PREFACE

Dear Readers,

It is a great pleasure to introduce the now eighth volume of the Czech Yearbook of Public & Private International Law (CYIL), appearing, as usual, in autumn. This period is a time of many international conferences and the debate of the Sixth (legal) Committee of the United Nations. It is most likely the right time for readers of this Yearbook interested in developments in international law and its codification. The Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. Since 2014, the Czech Yearbook has been published by the new international publishers, RW&W, Science & New Media, Passau-Berlin-Praha. As you know, the CSIL publishes the Yearbook both in printed and electronic versions (www.cyil.eu). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. It has become usual to announce in the preface some news or innovations related to the current volume of the Yearbook. This year we have received the highest number of contributions from both Czech and foreign authors. And even after their selection, based on peer-review, this issue is again larger than previous issues, amounting to 660 pages. Such a large volume has made a new record in the history of CYIL. The Editorial Board of the CYIL is proud that the Yearbook is growing and maturing. This growth of the Czech Yearbook ranks it among the larger publications of this kind in an international comparison. However, the size of the Yearbook also warrants some technical improvements, such as a larger format for pages and better quality of the paper and cover used for the printed version. However important these technical changes may be, the rich and interesting content remains, in our opinion, the main goal and commitment of CYIL. Volume 8 (2017) presents a variety of studies and articles covering many issues of contemporary International and European law. The Yearbook keeps its promises and brings a Symposium on current issues of international responsibility. Moreover, it also offers another symposium on the Use of force and ISIS. Last but not least, this volume includes for the first time a special section on Health, ethics and human rights from international and comparative perspectives. The readers will also find here many other traditional sections. The volume includes, inter alia, studies and articles on a determination of customary international law, unilateral economic sanctions, the personal status of refugees, several aspects of migration, crimes against humanity, etc. Like last year, the CYIL also presents a section on International law and EU law with six articles on a wide range of issues, including the application of the EU Charter of Fundamental Rights, social rights and the harmonization of consumer protection. An important number of articles deal with international human rights law, in particular from the perspective of the Council of Europe’s system, including the status of newminorities, the right to privacy and surveillance and the right to a fair trial in asylum procedures, as well as international humanitarian and international criminal law and justice.

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Another section covers topical issues of the law of the sea and international environmental law. According to its tradition, the CYIL in Volume 8 also heavily covers many aspects of international trade and investment law, such as regulatory measures and countermeasures in investment law, the relation between theWTO and regional trade agreements or consequences of Brexit to WTO and EU trade agreements. The Yearbook also covers the Czech practice of international law, in particular the Czech cases before the European Court of Human Rights. Moreover, the publication presents, as usual, topical information on the work of the UN International Law Commission in 2017, the list of treaties ratified by the Czech Republic, book reviews and a survey of Czech international law bibliography. As usual, the authors of this publication come both from Czech and foreign institutions, from academia and legal practice. More than in previous years, this volume includes contributions of foreign professors and researchers, coming from or teaching in Austria, Finland, Hungary, Italy, Lithuania, Poland, Serbia, Slovakia and Slovenia. As to the Czech institutions involved, these include Charles University in Prague, Masaryk University in Brno, Palacký University in Olomouc, West-Bohemian University in Plzeň, the Institute of International Relations in Prague, Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Metropolitan University Prague, the Ministry of Foreign Affairs, the Ministry of Industry and Trade and the Ministry of Justice, as well as some private law firms. This publication appears thanks to a financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for generous financial support from the Prague branch of the law firmWeil, Gotshal and Manges. We wish that this volume of the Czech Yearbook will find also many readers and we are looking forward to new authors and new contributions for the next volume. We are also grateful for any comments and suggestions on how to improve quality of this journal.

Prof. Pavel Šturma Editor-in-Chief

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ABBREVIATIONS AALCO – Asian-African Legal Consultative Organization AEC – African Economic Community

ACHPR – African Court on Human and Peoples’ Rights AMIF – Asylum, Migration and Integration Fund (EU) ARSIWA – Articles on Responsibility of States for Internationally Wrongful Acts ASC – adult stem cell ASEAN – Association of Southeast Asian Nations BITs – bilateral investment treaties Brexit – United Kingdom’s withdrawal from the European Union BSSR – Belorussian Soviet Socialist Republic CAHDI – Committee of Legal Advisers on Public International Law CAT – UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CCA – Czech Competition Authority CETA – EU-Canada Comprehensive Economic and Trade Agreement CFREU – Charter of Fundamental Rights (EU) CIL – customary international law CIMA – Inter-African Conference on Insurance Markets CJEU – Court of Justice of the EU CJTF-OIR – Combined Joint Task Force – Operation Inherent Resolve CPT – European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment DARIO – Draft Articles on the responsibility of international organizations DPRK – Democratic People’s Republic of Korea EASO – European Asylum Support Office EC – European Commission ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) ECJ – European Court of Justice ECOWAS – Economic Community of West African States ECtHR – European Court of Human Rights EEC – European Economic Community EEZ – exklusive economic zone

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ESC – embryonic stem cell ESIL – European Society of International Law EU – European Union EU NAVFOR – European Union Naval Force Somalia – Operation Atalanta EUSFA – Free Trade Agreements with Singapore

FATF – Financial Action Task Force FET – fair and equitable treatment

GATS – General Agreement on Trade in Services GATT – General Agreement on Tariff s and Trade

HRC – Human Rights Council HSCF – high fructose corn syrup ICC – International Criminal Court ICISS – International Commission on Intervention and State Sovereignty ICJ – International Court of Justice ICRC – International Committee of the Red Cross ICSID – International Centre for Settlement of Investment Disputes ICTY – International Criminal Tribunal for the former Yugoslavia IDI – Institute of International Law ( L´Institut de Droit international ) IDRL – international disaster response law IHL – international humanitarian law

IIAs – International Investment Agreements ILC – UN International Law Commission ILO – International Labour Organization IMO – International Maritime Organisation INLEX – International Nuclear Liability Expert Group IOM – International Organization for Migration IRU – International Relief Union IS – Islamic State ISDS – internationalized investor-state dispute settlement ISF – Iraq Security Forces ISIL – Islamic State of Iraq and the Levant ISIS – Islamic State of Iraq and Syria MERCOSUR – South American Regional Economic Organization (Mercado Común del Sur) MMOs – Multinational Military Operations

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MOAS – Migrant Offshore Aid Station NAFTA – North American Free Trade Agreement NATO – North Atlantic Treaty Organization NGOs – non-governmental organizations NIAC – non-international armed conflict OAU – Organization of African Unity PCIJ – Permanent Court of International Justice POW – prisoner of war RCEP – Regional Comprehensive Economic Partnership RSFR – Russian Soviet Federative Socialist Republic RTAs – Regional Trade Agreements SAC – Supreme Administrative Court SAF – Syrian Armed Forces SAR – search and rescue SCSL – Special Court for Sierra Leone SFRY – Socialist Federal Republic of Yugoslavia TCSs – Troop Contributing States TEU – Treaty on the European Union TFEU – Treaty on the Functioning of the European Union TPP – Trans-Pacific Partnership TTIP – Transatlantic Trade and Investment Partnership UCM – unilateral coercive measures UCPD – Unfair Commercial Practices Directive

UK – United Kingdom UN – United Nations UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea UNIDROIT – International Institute for the Unification of Private Law UNCTAD – United Nations Conference on Trade and Development UNGA – General Assembly of the United Nations UNHCR – Office of the United Nations High Commissioner for Refugees

UNICEF – United Nations Children‘s Fund UNSC – United Nations Security Council USA – United States of America

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VCLT – Vienna Convention on the Law of Treaties VIEUFTA – Free Trade Agreements with Vietnam WTO – World Trade Organization

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I. SYMPOSIUM: LAW OF INTERNATIONAL RESPONSIBILITY

CYIL 8 ȍ2017Ȏ INTRODUCTION TO SECTION “SYMPOSIUM: LAW OF INTERNATIONAL RESPONSIBILITY” INTRODUCTION TO SECTION “SYMPOSIUM: LAW OF INTERNATIONAL RESPONSIBILITY” On September 29, 2016, a conference called Topical issues of international responsibility was organized under the auspices of the Institute of Law of the Czech Academy of Sciences, v.v.i., on the occasion of the visit of some researchers from the Institute of Legal Sciences of the Polish Academy of Sciences, Warsaw. The conference took place within the conference premises of the Institute of Law in Prague and hosted seven speakers, of whom each presented a very interesting topic. The group of speakers included legal academics from both the Czech and Polish Institutes of Law, the Charles University Faculty of Law, students of the PhD. program in international law, the Ministry of Foreign Affairs of Slovakia, as well as other academics and legal professionals interested in international law. Due to the different nationalities of the speakers, the contributions were presented and the following discussions took place in English. The organizers of the conference and editors of the CYIL wish to thank all the speakers for their contributions and the interesting discussion that followed them and showed that the international responsibility of States contains many problematic aspects that are not going to be easy to solve. Since there are not many publications written on this topic, the editors of the Czech Yearbook of Public and Private International Law (a law journal of the Czech Society of International Law) proposed to publish all the submitted contributions in volume 8 of this journal. This whole section of the Yearbook entails those contributions that were presented at the abovementioned conference and some other contributions submitted to CYIL that were accepted, after a peer review procedure, for publication. It includes four articles, because not all conference papers were submitted in due time or accepted by a peer review. Some of the conference papers, in particular that on State succession in respect of international responsibility, were published elsewhere and therefore not included in this volume of CYIL.

Prof. Dr. Pavel Šturma

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JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW AND INVOCATION OF INTERNATIONAL RESPONSIBILITY Josef Mrázek Abstract: This article deals with formation, identification and effects of jus cogens norms and international responsibility arising under a peremptory norms of general international law. The concept of jus cogens implies some kind of legal “superiority” of these norms over common traditional rules of international law. This concept is based on acceptance and recognition of international community of states (and of international governmental organisations) with the aim to protect its vital values and international legal order. The legal concept of jus cogens in international law was finally introduced by the Vienna Convention on the Law of Treaties (VCLT) but the idea of non-derogable rules is possible to find already in Roman Law. On the other hand, the term jus cogens or peremptory norm cannot be found in classical international law. The VCLT, however, does not provide an explanation of the creation or identification of these norms. The idea of jus cogens norms was originally denied by the adherents of legal positivism and supported by the representatives of various natural schools. In the author’s view jus cogens norms are to be identified not only in customary international law but also in conventional international law and they may be found evidently also among general principles of law. The norms of jus cogens limit the will of states in their behaviour protecting the fundamental values of the human civilization. Jus cogens norms are created in the same way as customary or conventional international law. They are not special sources of international law. The requirements for acceptance and recognition for jus cogens norms are, however, higher (recognition of international community a whole, no derogation is permitted). When the customary or conventional rules of international law reach the status of jus cogens they acquire a special position and significance. These norms can be modified in a very complicated way in which the free will of individual states is very limited. Besides there is no general agreement as to which rules have this character. The main ways of jus cogens identification must be the practice of states and the decision of international courts. Violations of jus cogens norms endangering the whole international community entail special international responsibility. During its sixty-sixth session in 2014 the ILC decided to place the topic “ Jus cogens ” on its programme of work. The name of this topic was changed to “Peremptory norms of general international law (jus cogens )”. The special rapporteur appointed in 2015 has already submitted his two reports. Resumé: Článek se zabývá otázkami v obecném mezinárodním právu, formování, identi- fikaci norem jus cogens a odpovědnosti za jejich porušení. Koncepce imperativních norem v sobě zahrnuje určitý druh právní nadřazenosti (superioity) těchto norem nad běžnými dispozitivními pravidly obecného mezinárodního práva. Koncepce norem jus cogens předpo- kládá její „přijetí a uznání mezinárodním společenstvím států (a mezinárodními vládními organizacemi) s cílem chránit životní zájmy států mezinárodního společenství a mezinárod- ní právní řád. Moderní koncepce norem jus cogens byla do mezinárodního práva inkorporo- vána Vídeňskou úmluvou o smluvním právu z r. 1969. Vídeňská úmluva však neposkytuje objasnění tvorby nebo identifikace imperativních norem. Hlavní způsoby identifikace no- rem jus cogens spočívají na praxi států a rozhodnutí mezinárodních soudů. Porušení norem jus cogens ohrožující zájmy celého mezinárodního společenství má za následek zvláštní, zvý-

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CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … šenou mezinárodně právní odpovědnost. V r. 2014 Komise pro mezinárodní právo zařadila otázku norem jus cogens do programu své práce. Lze si jen přát, aby Komise přispěla k bližší- mu vyjasnění obsahu, účinků norem jus cogens a jejich identifikaci. Toto jsou i otázky, jimiž se zabývá tento článek. Key words: Peremptory norms, Jus cogens , general international law, international responsibility, serious breaches of peremptory norms, obligations erga omnes. On the Author: JUDr. Josef Mrázek, DrSc. , Ústav státu a práva AV ČR; Právnická fakulta ZČU Plzeň [Institute for State and Law of the Czech Academy of Sciences; Law Faculty of the University of Western Bohemia in Pilsen]. Research Fellow at Institute of State and Law, Czech Academy of Sciences; Lecturer in Public International Law, West Bohemian University Pilsen, Attorney at Law in Prague; Dr Juris, Charles University (1967); Candidate of Sciences in Law – CSc. (PhD.), 1974; Doctor of Sciences in Law (Dr.Sc.), 1988; Author or co-author of about 250 publications on international public law. Jus Cogens The concept of the jus cogens norm is based upon an acceptance of fundamental and superior values within the international law system and the whole international system. It is generally recognised that peremptory norms are or may be embodied in customary law and (with some author’s reservations) treaty law as well. The question of the relationship between customary and treaty law is rather difficult (in particular concerning the prohibition of the use of force). The notion of peremptory norms has so far nowhere in any official instrument been defined and the qualification of it was in fact left to state practice and the jurisprudence of international tribunals. The concept of jus cogens was developed in international law doctrine, but it is still controversial with regard to the content and methods of its creation. The Vienna Convention on the Law of Treaties of 1969 introduced stipulations concerning jus cogens norms in Art. 53 and 64. Art. 53 provides that: ,,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 recognised 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.” Art. 64 then stipulates that: ,,If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.” The Vienna Convention of 1969 defined a peremptory norm as a norm accepted and recognised by the ,,international community of states as a whole” and as a norm from which no derogation is permitted and which may be modified only by a subsequent norm of general international law having the same character. Art. 66 of the VCLT stipulates that disputes involving the invalidity of treaties on the basis of violation of jus cogens norms under Art. 53 and 64 may be referred to the ICJ. The Vienna Convention adopted the conventional, 1.

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JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ consensual concept of peremptory norms. But rules of jus cogens are also embodied in customary international law, despite some controversy about their scale and content. The notion of “peremptory norms” was probably established for the first time at the Vienna Conference. The Vienna Convention suggests that ,,peremptory norms” mean the same as ,, jus cogens ” (Art. 53 and 64). It was formerly objected, however, that the term ,, jus cogens ” in international customary law denoted those norms whose character does not depend on ,,recognition”, as is in the case of the conventional concept of peremptory norms. The main drafters of the 1969 Convention Sir Gerald Fitzmaurice and Sir Humphrey Waldock originally avoided using the term “ jus cogens ”. They were convinced that operation of jus cogens norms is not dependent on acceptance and their recognition as such. Sir H. Waldock in his third report as a special rapporteur used the term “ jus cogens ”, which met rather strong opposition. Nine members of the ILC had various objections against the use of this term. The discussion at the Vienna Conference on Art. 53 confirmed the uncertainty and different views on the nature and specification of jus cogens . In 1966 the ILC Report pointed out that ,,some jurists deny the existence of any rule of ,, jus cogens ” in international law, since in their view the most general rules still fall short of being universal.” The emergence of a rule having the character of jus cogens in doctrine of international law was a quite new phenomenon. The ILC confirmed that a treaty was void if it conflicted with a rule of jus cogens . 1 The full content of peremptory norms was left to state practice and the jurisprudence of international tribunals to elaborate. The ILC also decided not to include any examples of the rules of jus cogens into the Vienna Convention of 1969. A legitime question may arise as to what the rules of jus cogens are today. Is it sufficient only to state that they are norms or rules which safeguard the basic democratic and human values which are of concern to all states or the international community as a whole? It is generally recognised that some basic principles of international law embodied in the UN Charter represent jus cogens norms. I. Brownlie already in his textbook of 1962 e.g. stated that “certain fundamental principles have recently been set apart as overriding principles of jus cogens which may qualify the effect of more ordinary rules”. 2 In the Oppenheim’s International Law of 1992 it was observed that “the full content of the category of jus cogens remains to be worked out in the practice of states and in the jurisprudence of international “tribunals”. The authors of this textbook also stated that “the operation and effect of rules of jus cogens in areas other than that of treaties are similarly unclear”. 3 The relationship between customary and treaty law 4 is a rather complex question. International law-making conventions are adopted to codify and to develop international customary law or (rarely) to modify it. On the other hand, the treaties provisions may be replaced (infrequently) by new customary rules. There are principles lex posterior derogat priori and lex specialis derogat generali, which reflect the priority of treaty or customary rules. 1 Yearbook of the ILC, Vol. 2 (1996), p. 269. 2 BROWNLIE, I. Principles of Public International Law . Oxford: Oxford University Press, Third Edition, 1984, p. 20 and 513. 3 JENNINGS, R., WATTS, A. Oppenheim’s International Law . Oxford: Oxford University Press, Ninth edition 1992, Vol. Peace, p. 8. 4 See e.g. VILLIGER, M.E. Customary International Law and Treaties . Dordrecht: Martinus Nijhoff Publishers (1985). pp. 117-139.

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CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … A special position among sources of international law is held by ,,general principles of law” as a complex of norms including both custom and treaty law rules. The function of jus cogens is to protect states from contractual obligations denying general interests and values of the international community states as a whole. A treaty contrary to a custom or to a general principle part of the jus cogens would be void or voidable”. 5 The content of the jus cogens norms has been changing in accordance with development of the basic principles of international law. Jus cogens norms are not a static but evolving legal concept. The respect and observance of jus cogens norms are rooted in the legal conviction of the international community of states as a whole. Art. 53 of the Vienna Convention does not explain the process of the creation of jus cogens . Most international lawyers consider Art. 53 as a reflection of customary international law. Customary jus cogens norms are created by the same processes that created customary international law. For their formation, however, both special international law practice and opinio juris cogentis are required. The authors often disagree as to what constitutes a peremptory norm and as to the means to identify a peremptory norm. Some authors describe jus cogens as “general principles” of international law. In any case we may say that international customary law is a source of jus cogens . There is still some uncertainty as to the content of the jus cogens norms. It is generally maintained that international crimes such as aggression, genocide, crime against humanity, war crimes, slavery and similar slave practices, torture and international terrorism represent violations of jus cogens norms. These crimes are prohibited by a general customary law and conventional law as well. These crimes threatening the peace and security affect the interests of the international community as a whole. The states characterise the jus cogens norms by their conduct and state policy not only explicitly but also implicitly: The behaviour of a state may consist of commission or omission. The proponents of natural law maintain that jus cogens norms are based on higher “legal values” and legal positivism stresses the “requirements of the principles of legality” (e.g. nullum crimen sine lege). Jus cogens doctrine was based and developed clearly on the basis of natural law respecting some “higher values” overriding the positivist’s “freedom of contract”. The norms of jus cogens and obligation erga omnes are often presented as two sides of the same coins. Obligations erga omnes are directed against “all states”. The jus cogens norms of general international law are binding to all states of international community as well. Logically this means that norms of jus cogens would at the same time represent norms stipulating erga omnes obligations. On the other hand, it does not mean that any erga omnes obligation must necessarily reach a level of jus cogens norm. In the Barcelona Traction case the ICJ described an essential distinction between the obligations of a state toward the international community as a whole and those arising vis- á- vis another state in the field of diplomatic protection. The obligations of a state toward the international community as whole the ICJ described as “obligations – erga omnes”. 6 The relationship between jus cogens and obligation erga omnes was not, up to this time, clearly analyzed in the ICJ jurisprudence or legal literature. This relationship was neither satisfactorily explained in the ICJ’s advisory 5 BROWNLIE, I. note 2, p. 4. 6 See “By their very nature the former are the concern of all states. In view of the importance of the rights involved all States can be held to have a legal interest in their protection; they are obligations erga omnes.” Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), ICJ Reports 1970, p. 32.

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JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ opinion on Reservation to the Genocide Convention in 1951. 7 The conventional jus cogens were embodied in both Vienna Conventions on the Law of Treaties of 1969 8 and 1986. 9 The conception of jus cogens in international law was affirmed by the ICJ e.g. in the Nicaragua case. The ICJ maintained that the prohibition on the use of force has the character of a jus cogens norm. 10 There is growing acceptance of the jus cogens norms in the argumentation not only of lawyers but also in the communication of governments and international governmental organizations. Nevertheless, the creation and identification of peremptory norms is still a matter of controversy. The concept of jus cogens norms was derived from natural law. Some delegates at the Vienna Convention criticized positivist theory in this respect. 11 Jus cogens norms have a broad natural and human rights foundation. The Jus cogens doctrine substantially influenced the development and content of contemporary international law. The ILC already in 1966 expressed the view that there is no simple criterion by which to identify a general rule of international 12 law as having the character of jus cogens. At the Vienna Conference in 1969 Sir H. Waldock as special consultant maintained that the ILC “base its approach to the question of jus cogens on positive law much more than on natural law. 13 At the conference many delegates believed that the form or source of jus cogens norms was not of essential importance in determining their peremptory character. Serious doubts were expressed whether it was necessary to specify the manner in which such norms came into being. The main criterion of peremptory norms was considered the fact that they served the interests of the whole international community. 14 This approach was supported e.g. by A. Verdross in AJIL. 15 The interests of he international community and moral values to be regarded as “higher law” require some form of universal approval of states. International law was by definition always formed by states and not only by moral aspirations without their expression in legal form. Art. 53 of the VCLT contains the requirement according to which peremptory norms should be “accepted and recognised by the international community of states as a whole”. This is in fact a call for positive validation of peremptory norms through acceptance and recognition by the community of states. This requirement brought the concept of jus cogens , “into the realm of positive law” and resulted in “a gradual positivisation of jus cogens ”. 16 The question remains if international rules of jus cogens are binding only on those subjects who have accepted and recognized them. From a legal point of view jus cogens norms creation 7 Advisory opinion on Reservations to the Convention on the prevention and Punishment of Genocide, ICJ Reports 1951, p. 15. 8 The Vienna Convention on the Law of Treaties, 1969, 1155 UNTS, p. 3331, see Art. 53 and 64. 9 The Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 1986, Un Doc. A/Conf. 129/15. Art. 53 of this Convention is identical with the 1969 Convention. 10 ICJ Reports 1986, p. 100. 11 United Nations Conference on the Law of Treaties, Official Records, Second Session, 1970, p. 100. See e.g. the statement of the representative of the Federal Republic of Germany. 12 Yearbook of the ILC 1966, Vol. 2, p. 247-248. The ILC also proclaimed that jus cogens is not the form of general rule of international law but the particular nature of the subject matter with which it deals that may, in the opinion of the Commission, give it the character of jus cogens , ibid. 2, p. 248. 13 UN Conference on the Law of Treaties, Official Records Vol. I, p. 327. 14 To this discussion see DANILENKO, G.M. International Jus Cogens : Issues of law – Making. 2 EJIL , 1991, p. 45. 15 VERDROSS, A. Jus Dispositivum and Jus Cogens in International Law, 60 AJIL, 1966, pp. 55-58. 16 DANILENKO, G.M. supra note 14, p. 46.

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CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … implies also the emergence of a non-consensual law-creating process. The idea that the acceptance of the jus cogens doctrine means the recognition of “a new source of law”, ( jus cogens ) producing generally binging rules allowing majority rule – making in the context of “higher law” has not been generally accepted. To support the contention that a new source of general international law was emerging was used Art. 53 of the VCLT. The proponents of this view argued that the sources of international law listed in Art. 38 (1) of the ICJ Statute do not involve the international community as a whole. However, no new method of law – making may be assumed with regard to Art. 53 a determination of jus cogens . In any case, the norms of jus cogens reflect the fundamental interests of the international community. The question arises if and when peremptory norms “accepted and recognized by the international community of states as whole” bind even dissenters. The existing peremptory norms bind the entire international community” and no state is entitled to deny it. So the norms of jus cogens must bind even dissenters. Evidence supporting the existence of peremptory norms may be ascertained in the process of the ICL formation. The peremptory norms creations has not been a matter of majority rule making. A number of lawyers and states as well stressed the need for universal acceptance of jus cogens norms. With regard to a conventional peremptory norm accepted by a majority of states, it is correct to assume that these norms would by valid for signatories of a treaty and not to all states. The conventional jus cogens norm does not apply to those states that proposed this norm from the beginning. The question is whether this position is valid also in case of international customary law. It seems that a new state cannot refuse to accept already existing international law concerning jus cogens . The ILC stated in 1966 that the emergence of jus cogens is “too recent” 17 . But nearly forty years later the concept of jus cogens remains rather unclear and practice of states is not sufficient enough to clarify the creation of jus cogens norms. The different positions relating to the “common heritage of mankind” as a peremptory norm of general international law were expressed at the UN Conference on the Law of the Sea (UNCLOS). The majority of states (mainly developing) countries supported this proposal, originally submitted by Chile. A very small number of Western states clearly rejected the jus cogens character of the common heritage of mankind principle. 18 There are many writers who are still very sceptical with regard to the existence of jus cogens norms and their role in international law. Jus cogens has been recently described as only “a vision of the international legal order”. 19 It is stated that the jus cogens concept has a strikingly unremarkable and highly controversial existence” with limited impact on the actual practice of international law. The jus cogens concept has been criticized for its ambivalent nature, its vagueness, emptiness, useless and potential for political abuse. It was claimed that jus cogens invariably relates to the practical usefulness of this concept as a rule of international law, which is devoid of any practical significance. So, in this view, jus cogens should not be viewed as a norm of international law, but rather as a basic idea or principle which exercises 17 Yearbook of the ILC 1966, Vol. 2., p. 248. 18 See UN Doc. A/Conference 62/GP/9 1980 (Chilean proposal); see e.g. the statement of the US delegation: „The concept of the common heritage of mankind in the Convention adopted by the Conference is not jus cogens “. UNCLOS XVII, p. 243. Some authors require an examination of the role of the UNGA resolutions in peremptory norm–making. 19 PETSCHE, M. Jus Cogens as a Vision of the International Legal Order., 29 Penn State International Law Review , 1989, p. 236.

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JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ considerable influence on the international law making process. 20 A number of the early writings on jus cogens challenged the existence of the jus cogens norms and their conceptual basis. 21 Very critical to the theory of jus cogens was e.g. Anthony D’Amato. He objected that jus cogens has “non substantive content” and it is merely an “insubstantial image of a norm, lacking flesh and blood”. He was speaking about a Pandora’s Box approach to these “supernorms” and put forward three questions, awaiting their answers: 1: What is the utility of a norm of jus cogens (apart from its rhetorical value)? 2. How does a purposed norm of jus cogens arise? 3. If one arises, how can international law change it or get rid of it? 22 Other authors were defending the concept of jus cogens and its usefulness and suggested various definitions of jus cogens . This idea was already supported in 1937 by Alfred von Verdross. He argued that no juridical order can admit treaties which are “obviously in contradiction to the ethics of a certain community”. 23 In this way Verdross emphasized the natural law and moral foundation reflecting the jus cogens norms. In his article three decades later he confirmed that in the previous Article from 1937 he tried “to prove that even in international law there exists a rule having the character of jus cogens , i.e. norms with which treaties must not conflict.” 24 This second article was directed towards defending the concept of jus cogens against the criticism raised by G. Schwarzenberger. He stressed that in general international law “some rules having the character of jus cogens exist, and that all treaties which are at variance with such rules are null and void.” In his view the criterion for these “absolute” rules consists in the fact that they do not exist to satisfy the needs of individual states but the “higher interest of the whole international community”. He also maintained that a norm having the character of jus cogens can “practically be created only by a norm of general customary law or by a general or multilateral convention”. 25 State Responsibility State responsibility is a basic institution of international law resulting from the international legal personality of every state. 26 On August 10, 2001 the ILC adopted finally the Draft Articles on Responsibility of States for Internationally Wrongful Acts 27 , which were approved by the UNGA 45 years after the ILC, in 1956, started consideration of this topic. The first rapporteur was F.V. Garcia – Amador y Rodrigez, who submitted six reports between 1956 and 1961. At the beginning of its work the ILC under the guidance of Garcia Amador directed its effort towards the item “State responsibility for injuries to aliens and their property”. The text of the Draft articles was then formulated successively under the guidance of special rapporteur R. Ago (1962–1979), who produced eight reports. W. Riphagen (1980-1986), presented seven reports, G. Arangio-Ruiz (1987-1996), who also elaborated seven reports, 20 Ibid. p. 237. 21 See SCHWARZENBERGER, G. International Jus Cogens, 43 Texas Law Review. 1965, p. 455, 469; SCHWELB, E. Some Aspects of International Jus Cogens as Formulated by the International Law Commission. 61 AJIL , 1967, p. 946. 22 D’AMATO, A. It’s Bird, It’s Plane, It’s Jus Cogens , 6 Connecticut Journal of International Law, 1990 ; pp. 1-6. 23 VERDROSS, A. Forbidden Treaties in International Law. 31 AJIL , 1937, p. 571. 24 VERDROSS, A. Jus Dispositivum and Jus Cogens in International Law. 60 AJIL 1966, p. 55. 25 Ibid p. 61. 26 CRAWFORD, J.R. In: BERNHARDT, R. (eds). Encyclopaedia of Public International Law. Amsterdam, New York: North Holland, 1997. p. 571. 27 Official Records of the UNGA Fifty-sixth Session, Supplement No. 10 (A/56/10), 2001. 2.

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