CYIL vol. 8 (2017)

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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