CYIL vol. 8 (2017)

JOSEF MRÁZEK CYIL 8 ȍ2017Ȏ be the distinction between the substantive prohibition on the conduct of states violating jus cogens norms and its relationship to procedural rules and the court’s jurisdiction. An enumerative specification is surely excluded. The work of the ILC could be centred on the nature of jus cogens ; requirements for the identification of a norm as jus cogens ; an above mentioned illustrative list of norms which have achieved the status of jus cogens and consequences or effects of jus cogens . 68 These all are issues to be studied by the ILC. The special rapporteur correctly noted that the VCLT “conceptualizes” jus cogens as “a norm of positive international law, founded on consent”. This conceptualisation of jus cogens in positive law terms be seen as “a departure from an earlier understanding rooted in natural law thinking”. It is clear that Art. 53 and 64 of the VCLT are based on conventional acceptance of states, but it is not possible to exclude the appearance of peremptory norms based primarily on natural law ideas (maybe in some future prohibition of nuclear and similar weapons till the last yet unknown weapons of mass destruction). The creation of jus cogens norms is described as a process when a norm of general international law has achieved the status of jus cogens . Is this two step process really obligatory for formation of peremptory norms? May “instant custom” e.g. in space law become at the same time a jus cogens norm? It is not easy to identify the mode of formation of peremptory norms and the types of criteria for their identification. It is very important to analyse the effects and consequences of jus cogens taking into account the practice of states and the jurisprudence of international courts. The peremptory norms are already playing an important role in international law and in the life of the whole international community. It is expected that the ILC may contribute to greater clarity on jus cogens . Despite strong opposition of international lawyers and many states, jus cogens are nowadays generally recognized as superior rules in international law. Peremptory norms already play a significant role in the life of the international community. Gradually this originally rather theoretical concept has been already established in international law practice, embodying the values and interests of international community as a matter of vital necessity. The ILC should contribute to more precise clarifications of the content, effects of peremptory norms and their identification.

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68 See Doc. A/69/10, p. 280.