CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … a) it must be a norm of general international law and b) it must be accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted. Already in the debate on the first report some members suggested that the draft conclusions should make “express the intention to cover the law of state responsibility.” The discussion in the ILC and in the Sixth Committee as well exposed the wide divergence of views on the notion of jus cogens . The view that the topic should not be limited to treaty law but should be broad and “beyond treaty law” was prevailing. Some states rejected “characteristic elements” of draft conclusions. The special rapporteur explained that the characteristics of jus cogens contained in the first report are not criteria for the identification of norms of jus cogens , but only descriptive elements that characterized the nature of jus cogens . China e.g. questioned whether jus cogens should prevail over Art. 103 of the UN Charter. The US feared that the notion about “universally applicable” jus cogens norms as reflection of the “fundamental values of international community” would open the door to attempts and contestable natural law principles, without regard to their actual acceptance and recognition of states. 49 There was a prevailing view that jus cogens norms are “generally accepted, universally binding, hierarchically superior, reflecting fundamental values and interests of international community.” The modern concept of jus cogens originated in the international law doctrine. With regard to identification of jus cogens norms there is a recognized need to rely on state practice in all its forms (judicial practice, literature and other materials). Originally, in the literature, there were serious objections to the very idea of jus cogens . The special rapporteur did not intend to resolve the theoretical question of jus cogens as the natural concept versus positive law. The criteria for the determination whether a norm has reached the status of jus cogens are, according to the rapporteur’s report, contained in Art. 53 of the VCLT. There is a need to define peremptory norms of international law more clearly. 50 The definition of peremptory norms in the VCLT is a tautological one. It is clear that jus cogens norms reflect and protect fundamental values of the international community and international law as well. In consideration of identification of customary jus cogens norms Tladi’s second report confirmed that primarily relevant is the practice of states. 51 In this respect statements by states, judicial decisions and scholarly writings are important. According to this report a treaty provisions only prohibiting derogation from the former treaty (in the sense of Art. 41 of the VCLT) is not necessarily a norm of jus cogens , considering the fact that such a provision would not be a norm of general international law and would operate only inter partes. 52 This position excludes the existence of jus cogens norms in regional or particular international law, despite the possibility of the unanimous “recognition and acceptance” of relevant states. The ILC approach indicates that imperative norms in international law are applicable and binding to all states irrespective of recognition and acceptance of these norms which are automatically presumed. This means that no individual state has the right to refuse the recognition of a norm of jus cogens . The position of “permanent objector” (applicable generally to all dispositive customary rules) is not admissible. It is generally acknowledged that it is the “international community of states as a whole” that must accept and recognize the jus cogens character of international law norms. Already 49 Doc. A/CN.4/706; Doc. A/C.6/71/SROV. 26. para 126. 50 See e.g. statements by Germany, Doc. A/C.6/55/SROV.14, para 56. 51 Doc. A/CN. 4/706, p. 36. 52 Ibid, p. 38.

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