CYIL vol. 8 (2017)

JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ of 1996. 44 According to the ILC commentary the recognition of the concept of peremptory norms in Art. 53 and 64 of the Vienna Convention ,,recognises” the existence of ,,substantive norms of a fundamental character, such that no derogation from them is permitted even by treaty”. This ,,recognition” in the Vienna Convention was marked as a ,,development”. 45 No distinction was drawn between treaty and non- treaty obligations. Art. 40 of 1996 Draft articles defined the term of “injured state” too broadly, allowing any injured state to take countermeasures. Any state could take countermeasures in response to an international crime, a breach of human rights, or the breach of certain collective obligations. The 2001 Draft articles in Art. 48 allow countermeasures by states other than the injured states in two cases: 1. at the request and on behalf of any state injured by the breach, to the extent that the state may itself take countermeasures; 2. in response to the serious breaches (in Part Two Chapter III). Individually any state could take countermeasures in respect of such a serious breach. A number of responsibility items remained outside this 2001 codification topic governing the general rules on the international responsibility of the state. The ILC in 2006 e.g. adopted articles on diplomatic protection and in the 2001 Draft Articles on Liability for Injurious Consequences of Conduct not Prohibited by International Law. Many separate topics within the problems of state responsibility were embodied in special conventions and treaties. The obligations of non-recognition imposed by Art. 41 are already embodied in general international law. For example genocide, aggression, apartheid and forcible denial of self-determination are mentioned as prohibited by peremptory norms of general international law, constituting “wrongs which shock the conscience of mankind.” 46 Current consideration of jus cogens by the ILC In 2015 the ILC decided to place the topic “ Jus cogens ” on its ordinary programme of work. As special rapporteur prof. Dire Tladi from the University of Pretoria was appointed. The main purpose of the ILC research was to consider the criteria for the identification jus cogens . As a point of departure in developing these criteria the Vienna Convention on the Law of Treaties was taken. 47 One of the rapporteur’s draft conclusions originally stated that jus cogens is an “exception to the general rule that international law rules are jus dispositivum”. The absolute majority of the ILC members recognized that jus cogens norms protect “the fundamental values of the international community”, are “hierarchically superior” to other norms of international “law” and are “universally applicable”. 48 On the proposal of the rapporteur the ILC changed the name of the topic from “ jus cogens ” to the “peremptory norms of international law ( jus cogens ).” The reason was rather narrow-minded. Several members pointed out that the name of “ jus cogens ” did not capture the essence of the topic or that there were jus cogens norms in domestic law falling outside the scope of the topic and of the ILC interest. Most of the ILC members accepted the view that the topic should cover “ jus cogens beyond treaty law”. The rapporteur proposed three criteria for jus cogens identification: 44 Application of the Convention on the Prevention and Punishment of the Crime, ICJ Report 1996, p. 595, 616, para 31. 45 Ibid. para 279. 46 CRAWFORD, J.R., supra note 34, point 40. 47 See First report on jus cogens by Dire Tladi, Un. Doc. AúCN.4/693, 8. March 2016; Second report on jus cogens by Dire Tladi, UN Doc. A/CN.4/706. 48 UN Doc. A/CN.4/706, s. 5. 3.

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