CYIL vol. 8 (2017)

JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ in the Commentary to the Draft articles (Art. 50) on the Law of Treaties in 1966 it was stated that it was not necessary for the peremptory norm “to be accepted and recognized by all states” and that it would be sufficient if “a very large majority did so”. 53 This is also the present position of the ILC with regard to identification of jus cogens norms. It was on the basis of the joint proposal of Finland, Greece and Spain that the formulation of Art. 53 was included in the VCLT. 54 The criteria for jus cogens are generally based on Art. 53 of the VCLT. But for the exact identification of jus cogens norms these criteria are not sufficient. The ILC in its present work took it as a “point of departure”.When referring to peremptory norms, the states, international courts and international law writings as a rule mention Art. 53. This definition was drawn up “for the purpose” of the VCLT only. It defines the consequences of treaty law conflict with jus cogens . The jus cogens norm: 1. must be recognized by the international community of states as a whole; 2. no derogation is permitted; 3. modification of a jus cogens norm is possible only by a subsequent norm of general international law. The “conflict” between a peremptory norm of general international law and a treaty at the time of its conclusion results in nullity of the treaty. Such a treaty is null and void. The substance or character of the “conflict” with jus cogens was not defined. The question may arise as to if any such a “minor” conflict means that any treaty is void and if there are other than serious conflicts with peremptory norms. The definition in Art. 53 was accepted in general terms, even “beyond the law of treaties”. A peremptory norm of customary international law has a higher “legal rank” in comparison to the dispositive rules of general international law. It seems to be clear that not all of these rules may “elevate” to the status of jus cogens . The second rapporteur’s report suggests that jus cogens norms emerge from norms of general international law in a “two-step process”: the establishment of a “normal” rule under general international law and “elevation” of that rule to the status of jus cogens . 55 It may be doubted e.g. that all jus cogens norms appeared really in this “two steps” formation process only… While acknowledging that there is no accepted definition of “general international law”, the report suggests a division between “general international law, on the one hand, and lex specialis and treaty law”. The report, according its special rapporteur, has followed the previous observations on the ILC Study groups on fragmentation of international law. 56 But this statement is not probably quite precise. The special rapporteur himself noted that these Study groups in some respects characterized treaty law as lex specialis. In this connection another question may arise. Are all lex specialis norms really excluded, from the notion of “general international law”? The report has found confirmation of this idea in the judgment of the ICJ in the Military and Paramilitary Activities case, stating that this distinction might preclude some rules (such as a those of international humanitarian law) from acquiring the status of jus cogens . The special rapporteur agrees that the most obvious manifestation of general international law is customary law, which is the most common basis for the formation of jus cogens norms. This close relationship has been generally acknowledged 53 See Commnetary to Draft Articles on the Law of Treaties, Yearbook of the ILC, 1966, Vol. II., Part 2, Chapt. II, Sect. C. 54 Official Records of the UN Conference on the Law of Treaties, First and Second Sessions, Vienna 26 March – 24 May 1968 and 9 April –22 May 1969, s. 174; see also Doc. A/CN.4/706, p. 34. 55 Doc. A/CN.4/706, p. 20. 56 Ibid p. 20-21.

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