CYIL vol. 8 (2017)

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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