CYIL vol. 8 (2017)

JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ his objection that treaty law provisions may not constitute norms of general international law capable of forming jus cogens norms. 62 Once a peremptory norm in international law is established a question may be raised, if the division on customary and treaty law of jus cogens has any sense, while already established jus cogens norms are binding for all states and the international community as a whole. It is the international community of states as a whole that must accept and recognize the jus cogens norms (opinion juris cogentis, not merely opinion juris sive necessitatis) from which no derogation is permitted. The states may conclude convention, insisting that some of its provisions are not derogable inter partes. But only the collective acceptance of non-derogability of some stipulations is not sufficient to recognise their jus cogens character. The peremptory norms must protect also the special values and interests of international community as a whole. To get a clear consensus among all states of the international community is practically impossible. The phrase international community “as a whole” is therefore a legal fiction, indicating that acceptance of a very large majority of states is necessary and sufficient. The peremptory norms are binding not only the states but also on other subjects of international law. Draft conclusion 5 formulated by the special rapporteur stipulated that a norm of general international law has a general scope of application. Customary international law is the “most common basis” for the formation of jus cogens norms. General principles of law may also serve as the basis for jus cogens norms. This probably means that not all general principles of law may have this ability and quality. Besides, several general principles of law have already become principles of classical international law (pacta sunt servanda, bona fides). A treaty law according to this conclusion may only “reflect” (not constitute) a norm of general international law capable of raising to the level of “ jus cogens norm of general international law”. This formulation alone probably does not exclude the existence of peremptory norms in regional international law. Draft conclusion 5 approved by the Drafting committee (Chairman Mr. Aniruddha Rajput) approved only a short version of this conclusion: 1. “Customary international law is the most common basis for peremptory norms of general international law ( jus cogens )”; 2. “Treaty provisions and general principles of law may also serve as bases for peremptory norms of general international law ( jus cogens ).” 63 The Drafting committee in Draft conclusion 6 with regard to “acceptance and recognition” stipulated that this requirement as “criterion for identifying peremptory norms of general international law ( jus cogens ) is “distinct” from acceptance and recognition as a norm of general international law”. For identification of a norm as a peremptory norm of general international law ( jus cogens ) there must be evidence that such a norm is accepted and recognized as one from which no derogation is permitted and which can be only modified by a subsequent norm of general international law having the same character. This formulation is nearly the same as suggested by the special rapporteur. Draft conclusion 7 slighty modified by the Drafting committee confirmed that the acceptance and recognition by the community of state as a whole is relevant for the identification of peremptory norms of general international law ( jus cogens ). Acceptance and recognition by “a very large majority of states is required for the identification of a norm as a peremptory norm of general international law”. Acceptance and recognition by all states “is not required”. The special rapporteur also stated that “a large 62 Doc. A/CN.4/706, p. 47. 63 Statement of the Chairmen of the Drafting Comittee. 26 July 2014, ILC Geneva I. May to 2 June, 3 July to 4 August 2017.

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