CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … by the statements of states and in the decisions of international courts and tribunals. The report suggests that treaty law would not qualify as “general international law”. This position contradicts the opposite idea that general international law comprises both customary and conventional rules of international law. 57 On the other hand, the report stipulated, that the phrase “general international law” in addition to customary international law includes also “general principles of law”. 58 This means that all general principles of law are equated to general principles of international law. This conclusion, however, is rather controversial and contradicts Art. 38 of the Statute of the ICJ. The rapporteur also maintains (without convincing arguments) that Art. 53 of the VCLT “does not apply to treaty law”. Unfortunately no generally accepted definition on general international law exists so far. Neither the ILC nor other legal body were able to bring a satisfactory definition taking into account that many norms of general international law are created jointly by treaty and custom. With regard to Art. 53, international practice and international writings, it is not possible to deny that universal treaties could be the source of jus cogens (see e.g. UN Charter). Some imperative norms may appear as custom and others may be contained in international conventions. Nothing precludes future conventions from generating universally binding peremptory norms. The special rapporteur described jus cogens as norms of general international law, which are distinct from treaty rules. He argues with the ILC commentary to draft Art. 50 of the VCLT, distinguishing in his view “the general rules of international law” from treaty rules. But this commentary in para 4 to this Art. 4 explicitly stated, that “modification of a rule of jus cogens would today most probably be effected through a general multilateral treaty”. 59 This stipulation may be clearly interpreted as that treaty law can form peremptory norms. In the view of the authors of this essay the categorical exclusion of all universal conventions (law-making treaties) from the scope of general international law are already obsolete. The ICJ in the Belgium v. Senegal case based its conclusion that the prohibition of torture is a norm of jus cogens on its customary status. 60 It is true, however, that the crime of torture was first formulated in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the UNGA on 10. 12. 1984 (res. 39/46) which entered into force on 26. 6. 1987. As of August 2017, the Convention had 162 state parties. The International Tribunal for the Former Yugoslavia in the case Furundrija recognized that torture was at first prohibited by human rights treaties and determined that the jus cogens status of prohibition for its decision was prohibited on the basis of customary law. 61 These decisions do no exclude the possibility of the jus cogens character of treaty norms. Both decisions rather indicate that customary and treaty jus cogens norms may be interlinked and complementary. The special rapporteur’s second report acknowledged that the trend of determining the existence of jus cogens norms on the basis of customary international law when the norms in question also exist in treaty law is “conspicuous” in state practice, despite 57 TUNKIN, G. Is general international law customary law only? EJIL, vol. 4, p. 541. 58 Doc. A/CN.4/706, p. 27. 59 Doc. A/CN/706, s. 28. To the position of the ILC See Yearbook of the ILC, 1966, vol. II, Part II, Chap. II, Sec. C. 60 See „prohibition of torture as part of customary international law and it has become peremptory norms ( jus cogens ). See ICJ Reports 2012, Judgments, Questions relating to the Obligation to Prosecute of Extradite, Belgium v. Senegal, Judgment, ICJ Report 2012, p. 422, para 99. 61 Prosecutor v. Furundrija, Judgment, Case No. II-95-17/1-5, T.Ch. 10 Dec. 1998, para 144.

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