CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ PEREMPTORY NORMS OF INTERNATIONAL LAW … majority of states” is sufficient. The universal convention in the same sense does not require participation by all existing states; to be “universal one” a very large majority of states is sufficient. From the theoretical point of view there is a question whether international peremptory norms contained in international conventions may be binding for third states and whether jus cogens norms in international treaty become also international customary jus cogens law. It is a general understanding that peremptory norms of general international law are biding for all states. The work of the ILC is not finished and will continue. Conclusions In his first report the special rapporteur mentioned also the historical evolution of the concept of jus cogens . He noted here that the idea of non-derivable rules has its antecedents in classical Roman law and that the term “jure cogente” ( jus cogens ) itself first appeared (albeit in an unrelated context) in the Digest of Justinian. The rules from which no derogation was permitted can be found already in Roman law. 64 The concept of jus cogens in modern international law, however, can be traced in the first half of twentieth century and is often connected with Alfred Verdross. 65 In the work of the ILC this was first included by G. Fitzmaurice in his third report as a special rapporteur on the law of treaties. 66 The ILC included already in 1966 three draft articles on jus cogens (Art. 50, 61 and 67) into its Draft articles on the law of treaties. These provisions with some small amendments appeared in Art. 53 and 64 of the 1969 VCLT. Despite some controversy and uncertainties about the jus cogens concept, it is useful and necessary to deal with this crucial problem in the development international law. On the other hand, it is also important to exclude any political misuse of unilateral invocation of jus cogens . The definition of jus cogens or peremptory norms is still insufficient. The existence of a jus cogens norm could be probably established by subsequent practice. The task of elaborating the notion and content of peremptory norms remains rather ambitious and a perspective for the building of a new public order in the interest of the international community. There is still lack of clarity of the peremptory norms concept. Unfortunately no generally accepted definition of jus cogens exists. As special rapporteur Mr. Dire D. Tladi mentioned, “the contours and legal effects of jus cogens remain all-defined and contentious”. 67 It is true that the process of identification, formation and consequences of peremptory norms is not quite clear, neither in theory nor in the rather sporadic practice of international law as well. It was originally a general idea of the ILC to leave the more precise content of jus cogens norms to be worked out in state practice and in the jurisprudence of international tribunals. Now the ILC is attempting to elaborate more detailed provisions on peremptory norms and their further development. The general statements of states and pronouncements of courts and tribunals were mostly not trying to clarify the nature, content and consequences of peremptory norms. Another problem might 64 Doc A/CN.4/693, p. 9; for a history of this concept see Papers and Proceedings: Report of a Conference in Lagonissi, Greece, April 1966. 65 Ibid, p.9; VERDROSS, A. Forbidden Treaties in International Law. 31 AJIL , 1937, p. 571. 66 See Yearbook of the ILC, Vol. II: Documents of the Tenth Session including the Report of the Commission to the General Assembly, Doc. A/CN.4/115, p. 26-27. 67 Doc. A/69/10, Annex, s. 274. 4.

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