EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Institute IMS, Brno Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, member of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague
ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law
Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor VLADIMÍR KOPAL † West-Bohemian University, Faculty of Law
Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, member of the ILC
EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague
REVIEWERS Associate Professor VLADIMÍR BALAŠ Institute of Law of the Academy of Sciences of the CR, Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Professor MAHULENA HOFMANN SES Chair in Space Communications and Media Law, University of Luxembourg, Faculty of Law, Economics and Finance Dr. KATARÍNA ŠMIGOVÁ, Paneuropean University Bratislava, Faculty of Law Dr. EVA VILLACIS Ministry of Foreign Affairs of the SR, Bratislava / The Hague
PREFACE Pavel Šturma
I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS Principles of the Charter of the United Nations – Jus Cogens? Ernest Petrič Problem with the Inclusion of Aggression into the Rome Statute of the ICC Čestmír Čepelka Islamic State, an Actor Threatening Peace in the Middle East Jan Ondřej – Magda Uxová Some Critical Reflections on the Extended Use of Military Force in the Contemporary World Josef Mrázek 47 Are Unilateral (Economic) Sanctions Really Impermissible under International Law? Zuzana Trávničková 77 International Administrative Law and Administrative Acts: Transterritorial Decision Making Revisited Jakub Handrlica 86 II. INTERNATIONAL LAW AND EUROPEAN LAW The Conceptual Role of Habitual Residence Dalibor Jílek – Jana Michaličková 101 The Scope and the Future of Equality of Treatment for Economically Inactive Union Citizens on the Move Solange Maslowski 137 Saving EU and its Welfare States Through Disincentives to Migration? On a Recent CJEU Case-Law Limiting the Access of EU Migrants to Social Assistance Václav Šmejkal 154 III. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW Towards a New Convention for the Protection of the Human Rights of Older Persons? Veronika Bílková 173 Consensus on Human Nature? The Concept of European Consensus in the Case-Law of the Court in Strasbourg Pavel Bureš 197 27 3 18
The Status of New Minorities in the Light of the Framework Convention for the Protection of National Minorities Harald Christian Scheu The Use of Human Shields and the Principle of Proportionality under Law of Armed Conflict Tuomas Heikkinen – Martin Faix International Law and the Use of Armed Drones: Where is the Controversy? Petra Ditrichová-Ochmannová The Digital Aspects of the Right to Privacy – Surveillance Issues Milan Lipovský IV. INTERNATIONAL CRIMINAL LAW The Czech Contribution to the Work of the United Nations War Crimes Commission: the Auschwitz and Birkenau Case Petr Válek 287 Immunity of State Officials from Foreign Criminal Jurisdiction – Exceptions to Immunity ratione materiae Pavel Caban 306 The ICC Arrest Warrant for the Sudanese President Omar al-Bashir in Connection with his Visit to the Republic of South Africa Jan Lhotský 330 Applicable Law, Interpretation, Inherent and Implied Powers – Brief Rendezvous V. ENVIRONMENTAL PROTECTION AND LAW OF THE SEA Do the Europeans have the Right to get Information about Ostrovets Nuclear Power Plant in Belarus? Birutė Pranevičienė, Violeta Vasiliauskienė 357 The Bay of Bengal Maritime Arbitration: a New Ray of Hope Soma Hegdekatte 378 VI. VIEWS ON INVESTMENT AND TRADE LAW Non – Precluded Measures in International Investment Arbitration Katarína Chovancová 391 Third Party to Pick up the Bill? Costs Issues Relating to Third Party Funding in Investment Arbitration Ondřej Svoboda – Jan Kunstýř 411 208 224 238 253 Right to a Fair Trial in Asylum Procedures Monika Forejtová 266 with the ICC Ondřej Svaček 342
About Recent Development in a Further Aim to Reform the Investor-State Arbitration by the Introduction of a Permanent Investment Tribunal and an Appeal Mechanism – focused on the work done by CIDS under auspices of the UNCITRAL Vojtěch Trapl 420
VII. CZECH PRACTICE OF INTERNATIONAL LAW The International Law Commission at the End of Quinquennium: an Exceptional Session and Positive Results Pavel Šturma The Czech Republic before the European Court of Human Rights in 2015 Vít Alexander Schorm
International Treaties ratified by the Czech Republic Milan Beránek
VIII. SHORTER ARTICLES AND NOTES Case Notes: Court of Justice of the European Union to Rule on the Compatibility of intra-EU BITs with EU Law in the Case Achmea B.V. vs. the Slovak Republic Miloš Olík
Moot Courts on Issues of International Law in 2015/2016 Milan Lipovský XXXIX. Antarctic Treaty Consultative Meeting in Santiago The Protocol on Environmental Protection to the Antarctic Treaty Martina Fillipiová
IX. BOOK REVIEWS Non-governmental Organizations under the European Convention on Human Rights. Exceptional Legal Standing (A. Tymofeyeva) Irena Marková 489 Legal regulations for and practices of the use of minority languages. Acta Universitatis Carolinae, Iuridica 4/2015, Vol. LXI (H. Ch. Scheu, R. Petráš eds.) Andrea Baršová 492 International Human Rights Obligations of Post-Communist Countries: the Cases of the Czech Republic and Slovakia (I. Pospíšil, V. Týč et al.) Martin Kopa 506 X. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY Zuzana Trávníčková 507
Dear Readers, It is a great pleasure to introduce the seventh volume of the Czech Yearbook of Public & Private International Law (CYIL), appearing, as usual, in October. Autumn is the period of wine harvest but also the period of many international conferences and of the debate of the Sixth (legal) Committee of the United Nations. It is most likely the right time for readers of this Yearbook interested in developments in international law and its codification. The Czech Yearbook is a scholarly publication of the Czech Society of International Law, acting in cooperation with the Czech Branch of the International Law Association. The above institutions and the Editorial Board of the CYIL are proud that the Yearbook is growing and maturing. As you know, the CSIL publishes the Yearbook in both printed and electronic versions (www.cyil.eu). Since last year the Czech Yearbook has been included, in addition to the Czech index of scholarly peer-reviewed journals (RVVI), in the SCOPUS international database. We are the first Czech law journal admitted to SCOPUS. And it seems, on the basis of discussions of editors of international law journals present at the ESIL conference in Riga in September 2016, that this is an important achievement, compared with other European journals, some of them having a much longer tradition. Since 2014 the Czech Yearbook has been published by new international publishers, RW&W, Science & New Media, Passau-Berlin- Praha, and distributed through the company Südost Service GmbH abroad, mostly in Germany. However, rich and interesting content is and must be, in our opinion, as important as the form. Volume 7 (2016) presents a variety of studies and articles covering many issues of contemporary International and European law. It includes, inter alia , studies and articles on a determination of jus cogens , an inclusion of the crime of aggression into the Rome Statute of the ICC, the use of force, ISIS, unilateral economic sanctions and international administrative law. Like last year, the CYIL also presents a section on International law and EU law, including the role of habitual residence bearing on public and private international law and the EU law. Two other articles focus on the equality of treatment of economically inactive EU citizens and recent CJEU case law limiting the access of migrants to social assistance. An important number of articles deal with international human rights law, in particular from the perspective of the Council of Europe’s system, including the status of new minorities, right to privacy and surveillance and right to a fair trial in asylum procedures, as well as international humanitarian and international criminal law and justice.
A new section covers international environmental law and the law of the sea. According to its tradition, the CYIL in Volume 7 also covers certain aspects of international investment law and arbitration, such as non-precluded measures, third party funding of arbitration costs and developments aimed at the permanent investment court. The Yearbook also covers the Czech practice of international law, in particular the Czech cases before the European Court of Human Rights. Moreover, the publication presents, as usual, topical information on the work of the UN International Law Commission in 2016, the list of treaties ratified by the Czech Republic, book reviews and a survey of Czech international law bibliography. As usual, the authors of this publication come both from Czech and foreign institutions, from academia and legal practice. More than in previous years, this volume includes contributions of foreign professors and researchers, coming from or teaching in Austria, Finland, France, Lithuania, India, Slovakia and Slovenia. As to the Czech institutions involved, these include Charles University in Prague, Palacký University in Olomouc, West-Bohemian University in Plzeň, the Institute of Law of the Czech Academy of Sciences, the University of Economics in Prague, the Ministry of Foreign Affairs, the Ministry of Industry and Trade and the Ministry of Justice, as well as some private law firms. While keeping high academic standards, the Yearbook wants to be open for dialogue of scholars and practitioners of international law. This publication appears thanks to the financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for generous financial support from the Prague branch of the law firm Weil, Gotshal and Manges. We wish that this volume of the Czech Yearbook also find many readers and we are looking forward to new authors and new contributions for the next volume. We are also grateful for any comments and suggestions on how to improve the quality of this journal.
Prof. Pavel Šturma Editor-in-Chief
ABBREVIATIONS AALCO – Asian-African Legal Consultative Organization ACH – Appeals Chamber ACHR – American Convention on Human Rights AM – appeal mechanism ASEAN – Association of Southeast Asian Nations ATCM – Antarctic Treaty Consultative Meeting BITs – bilateral investment treaties CAHDI – Committee of Legal Advisers on Public International Law (Council of Europe) CEAS – Common European Asylum System CEDAW– Convention on the Elimination of All Forms of Discrimination Against Women CEP – Committee on Environmental Protection CETA – Comprehensive Economic and Trade Agreement (FTA of the EU with Canada) CJEU – Court of Justice of the EU CLCS – Commission on the Limits of the Continental Shelf CRPD – Convention on the Rights of Persons with Disabilities EASO – European Asylum Support Office EC – European Commission ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) ECJ – European Court of Justice EEC – European Economic Community EIA – Environmental Impact Assessment Espoo Convention –Convention on Environmental Impact Assessment in a Transboundary Context EU – European Union GATT – General Agreement on Tariffs and Trade IADB – Inter-American Development Bank IAEA – International Atomic Energy Agency ICC – International Criminal Court ICCPR – International Covenant on Civil and Political Rights ICESCR – International Covenant on Economic, Social and Cultural Rights ICJ – International Court of Justice ICMW – International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ECSC – European Coal and Steel Community ECtHR – European Court of Human Rights
ICRC – International Committee of the Red Cross ICSID – International Centre for Settlement of Investment Disputes ICTY – International Criminal Tribunal for the former Yugoslavia IEA – International Energy Agency IIAs – International Investment Agreements ILA – International Law Association
ILC – UN International Law Commission ILO – International Labour Organization IMF – International Monetary Fund
ISIL – Islamic State of Iraq and the Levant ITI – international tribunal for investments ITLOS – International Tribunal for the Law of the Sea LOAC – law of armed conflict NAFTA – North American Free Trade Agreement NGOs – non-governmental organizations NPM – non-precluded measures NATO – North Atlantic Treaty Organization OAS – Organization of American States OAU – Organization of African Unity OPCW – Organization for the Prohibition of Chemical Weapons PCA – Permanent Court of Arbitration PKK – Kurdistan Workers’ Party TFEU – Treaty on the Functioning of the European Union TPF – third party funder TTIP – Transatlantic Trade and Investment Partnership UAVs – unmanned aerial vehicles UDHR – Universal Declaration of Human Rights UK – United Kingdom UN – United Nations UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea UNECE – United Nations Economic Commission for Europe UNHCR – Office of the United Nations High Commissioner for Refugees UNSC – United Nations Security Council USA – United States of America VCLT – Vienna Convention on the Law of Treaties
WHO – World Health Organization WTO – World Trade Organization
IN INTERNATIONAL LAW AND ORGANIZATIONS
CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS – JUS COGENS ?
Abstract: The author deals with the general problems of jus cogens , its nature, its place and function in the international legal order. He departs in his analyses from art. 53 VC IT and concludes that a norm to be a jus cogens should acquire general “consent” which should reach beyond consent of State only, and the norm should protect an important value (“content”) at our stage of development of human society. Next he exposes to these criteria the basic principles of the UN Charter and suggest that they, confirming to both criteria could be accepted as norms/principles of contemporary jus cogens . Resumé: Autor se v článku zabývá obecnými problémy jus cogens , jeho povahou, místem a funkcí v mezinárodněprávním řádu. Odchyluje se přitom ve své analýze od čl. 53 Vídeňské úmluvy o smluvním právu a dochází k závěru, že norma, aby měla povahu jus cogens , by měla získat obecný „souhlas“, který by měl přesahovat pouze souhlas státu, a taková norma by měla současně chránit důležitou hodnotu („obsah“) na daném stupni vývoje lidské společnosti. Dále autor používá tato kritéria na základní principy Charty OSN a naznačuje, že splňují obě tato kritéria, a proto by mohly být přijaté jako normy / zásady současného jus cogens . Key words: jus cogens ; basic principles of international law; UN Charter; consent; content, international legal order. On the Author: Prof. Dr. Ernest Petrič is professor of international law at the European Faculty of Law, Ljubljana, Slovenia. Member of ILC and its former chairman. Judge of Constitutional court of the Republic of Slovenia. Former State secretary of the MFA of Slovenia and ambassador/permanent representative to USA, India, Austria, UN-New York, IAEA. Introduction People have lived for about three generations in the period that has known the “United Nations”, i.e. in the international community that emerged from the ruins left after both World Wars and was formally established 70 years ago when the Charter of the United Nations came into force. This new international order, based on new principles of international law and with institutions that had never existed before, certainly did not emerge overnight. The transition from the world order that was in fact still based on the Peace of Westphalia, which was established during and after the 30 Years’ War in the 17 th century, via the world order based on the system of the Holy Alliance and the Great Powers constituting the Concert of Europe, to the
ERNEST PETRIČ CYIL 7 ȍ2016Ȏ one based on “the UN system”, did not happen overnight. This transition, however, is not the topic of the present paper. We shall focus instead on the basic principles of international law, on which the new, or to be more precise, present international order is based, and we shall focus especially on their legal nature. There are a number of issues that need to be addressed, but, for reasons of space, we will not deal with all of them. In particular, I will not discuss the substance of the principles of the Charter 1 , neither will I discuss to what extent the Charter can be seen as a constitutional framework, a quasi-constitution of the modern international community, or to what extent the quasi-”constitutional” character of the Charter derives from Article 103 of the Charter, which states that the Charter is hierarchically superior to the treaties concluded by the members of the United Nations. A lot has been written about these, I dare say, “constitutional aspects” of the modern international order. 2 Nevertheless, let me mention that these past 70 years of the “United Nations” 3 international system were a period of peace, when after two World Wars and many wars before them, and in spite of a number of local conflicts and other security challenges (terrorism, genocide, organised crime, etc.), humanity enjoyed peace. This was a period when about two thirds of humanity shook off the various forms of colonial yoke, when the unacceptability of discrimination and respect for fundamental human rights lodged themselves in the legal consciousness of humanity and in real life, and when, irrespective of the exponential growth in world population and still existing remains of poverty, great famines and epidemics – the calamities that befell humanity in past centuries were eliminated. In light of this development and especially considering the fact that peace has been maintained and ensured, one cannot deny the role of the United Nations and the significance of the principles of the Charter. Although this is not the subject of the present paper, this needs to be mentioned on the occasion of the 70 th anniversary
of the United Nations. On Legal Principles
In every period of history, there are certain legal principles also in the international community on which international legal order and consequently the
1 These are more specifically defined in the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations ” (UNGA Res. 2625(XXV), 24 October 1970). 2 On the so-called constitutional aspects of the modern international order, the Charter and its principles see, for example, R. St. J. MACDONALD, The Charter of the UN as a World Constitution, in: International Law Studies , Vol. 75, International Law Across the Spectrum of Conflict, Essays in Honour of L. C. Green , ed. M. N. SCHMITT; J. CRAWFORD, The Charter of the UN as a Constitution, in: The Changing Constitution of the UN , ed. H. FOX, London 1997. 3 For more on the “system of United Nations” see E. PETRIČ, Zunanja politika - osnove teorije in praksa [ Foreign Policy – From Conception to Diplomatic Practice ] , Ljubljana 2010.
CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? entire international system of that historic period are based. In the international community such fundamental legal principles are, naturally, an expression of the will of States. The will of States is a factual sociological source of the international law, whether such entails treaties, customary international law or the so-called general legal principles, although in the case of the latter the special issue is to what extent these principles are the expression of a direct will of States. Since the will of States ultimately reflects the level of social development, it can be claimed that, in every historical epoch, the current level of social development and the values of civilization predetermine international law as an expression of the will of States. Hence, the respect for and protection of the fundamental human rights, the prohibition of discrimination, the right of peoples to self-determination, international humanitarian law, numerous limitations of national sovereignty, etc. – in short, everything that characterizes the modern international legal order – is espoused only in our era, when the social conditions for such were met. The current level of development is reflected in the will of States and consequently in the formal sources of international law determined by the Statute of the International Court of Justice in Hague (Article 38). If international law is really to be “law” (this also applies to national law), it must reflect, grosso modo , the level of social development, the level of the society’s needs when regulating the relations within the international community; it must ensure the security, harmony, development. Every legal order, including international legal order, which became universal in the past century due to internationalization of the way of life, and today regulating virtually all aspects of social life, will have to undergo changes unless it reflects the level of social development and the values of civilization. If the discrepancy is permanent and strained, it is doomed to a more or less catastrophic failure. The generations that have lived through the times of revolutions, “transitions”, also “the fall of the Berlin Wall” (at the international level this entailed a break-up of the so-called bipolar balance of power or the bipolar international system) are well aware of that. Historia magistra vitae ! The issue that also arises in international law like in national law, mutatis mutandis, is whether the legal principles and standards determined in a certain period marked by certain social development and values of civilization are eminent in that particular period. This is exactly why those who implement law “ in concreto ” (i.e. a constitutional body and a legislature in the case of a State, States in the case of the international community) cannot be able to abrogate, amend or ignore them at their own discretion. At the present stage of development of the civilized world and values, no legislature can “enact” racial discrimination, for instance, let alone slavery, serfdom, or inequality and discrimination of women, acts of genocide, partiality of courts, etc. Even if this was, for example, established by law or treaty or even by a constitution, in terms of content, such otherwise formal enactment could not
ERNEST PETRIČ CYIL 7 ȍ2016Ȏ become or be law. Such a statute would naturally not constitute law; neither would such a treaty constitute international law. In international law and in the scholarly works on this topic, namely due to the specific nature of this law, i.e. that the States themselves are the “legislature” of the law and at the same time also those who are bound by such law, there has been a recurring issue ever since Hugo Grotius, and even before his time, whether States (“the legislature”) and their will are indeed free when creating the law and to what extent they are free, especially when treaties are being concluded. Where are the limits – if they exist at all – of the free will of States when they create international law? Without encroaching on the theoretical considerations on the issue of natural or positive law, one should mention only that in the period when the growing internationalization of the way of life, in particular due to trade and other economic relations, required a concrete international legal regulation by way of treaties, there were no deep reflections on the limits of the will of States when creating international law. Later, in the era of the two ideological and value systems, especially in the second half of the 20 th century, there were even fewer possibilities to reach a consensus concerning the existence of principles and norms of international law, the alteration or derogation of which would be exempt from the will of States. But then, there has always been some doubt as to whether international law (i.e. international legal order) really depends entirely on a concretely expressed and unlimited will of States, or whether this will is nevertheless limited. I firmly believe that in the creation of international law the will of the States is limited, particularly when concluding treaties. Naturally, the concrete positive international law must, ultima ratio , be in accordance, not with “God’s will” or some “natural justice” etc., but with the level of social development and fundamental values of civilization which correspond to the level of the development of human society. In the 1960s, during a session of the International Law Commission (ILC), the Commission was confronted with an actual issue regarding the limitation of the will of States when concluding treaties. The Commission, having jurisdiction over the codification and development of international law, was faced with this issue at the time of its efforts to codify the international law on treaties. The results of discussions held in the Commission and during the conference of States can be found in Article 53 of the Vienna Convention on the Law of Treaties (VCLT), which introduces the legal concept of “ jus cogens ” in international law. 4 In the debate at the 70 th anniversary of 4 On jus cogens see, for example, C. MIK, Jus Cogens in Contemporary International Law, in: Polish Yearbook of International Law , 2013, Warsaw 2014, pp. 27-95; G. M. DANILENKO, International Jus Cogens : Issues of Law-Making, in: 2 EUR. J. Int’l L., 1991; A. ORAKHELASHIVILI, Peremptory Norms in International Law , Oxford 2006; L. HANNIKAINEN, Peremptory Norms in International Law: Historical Develpment, Criteria, Present Status , Helsinki 1988; L. Aleksidze, Nekotorye voprosi teorii mezhdunarodnogo prava. Imperativnye normi jus cogens , Tbilisi 1983; C. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties , Amsterdam 1976; R. KOLB, Observation sur l’evolution
CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? UN and its Charter, we must ask a question regarding the free will of States in the case of potential amendments to the Charter, particularly its fundamental principles determined in Articles 1 and 2 of the Charter. Irrespective of its quasi-constitutional features, the Charter is formally a multilateral treaty. It has been concluded by States and may thus also be modified by them, in accordance with a complex procedure determined by the Charter itself. Although we can claim that today the principles of the Charter, in particular, are considered to be customary international law, this does not entail that UN Member States could not modify it, including its Articles 1 and 2, by a necessary majority (simply put, two thirds of Member States, including the five permanent members), and, for example, abrogate or limit it or even adopt an amendment permitting the use of armed force. It is hypothetically possible for such an amendment to Paragraph 4 of Article 2 of the Charter to derogate (e.g. in relation to the fight against international terrorism) from the prohibition of the threat or use of armed force, as contained in Paragraph 4 of Article 2 of the Charter. Considering today’s general social awareness of the unacceptability and unlawfulness of war, considering the genesis of such prohibition in the Charter, 5 via the League of Nations, the Kellogg-Briand Pact, numerous declarations and resolution adopted within the UN itself, other international instruments, case law of the ICJ and other international courts and tribunals, national courts and practice of the States based on this provision of the Charter, and considering the practically unanimous opinion of the legal theory, it would be absurd – although formally possible – to abrogate or amend this provision of the Charter in such a manner that the prohibition contained therein would be hollowed out. If this principle of the Charter (its Paragraph 4 of Article 2) is jus cogens – and the same would logically apply to other principles of the Charter – States are not allowed to derogate from or hollow out this fundamental principle – i.e. the prohibition of the threat or use of armed force – by concluding a new treaty. Treaties that are contrary to jus cogens are void, as determined by Article 53 of the VCLT! The principles of the Charter are thus “untouchable” in the sense of Article 53 of the VCLT if they are jus cogens . Jus cogens in international law We will return to the issue of fundamental principles of the Charter and their jus cogens nature later, since this is the central question of the present debate. But before that, we need to answer a few questions related to the concept of jus cogens du concept de jus cogens , in: 113 (4) Revue Générale de Droit International Public 837 (2009); by the same author, Theorie du jus cogens international , Paris 2001; A. HAMEED, Unravelling the Mystery of Jus Cogens in International Law, in: B. Y. I. L, 2014, vol. 84, no. 1, pp. 52-102. 5 On the genesis of this prohibition in the Charter of the UN see for example: A. A. C. TRINDADE, The Primacy of International Law over Force, in: Promoting Justice, Human Rights and Conflict Resolution through International Law , ed. M. Kohen, Leiden 2007.
ERNEST PETRIČ CYIL 7 ȍ2016Ȏ in international law, and specifically to Articles 53 and 64 of the VCLT of 1969, 6 which were later recapitulated also in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. 7 First, it should be noted that it is evident from the analysis of travaux preparatoires of Article 53 of the VCLT and the discussions held at the Vienna Conference of 1969, 8 which adopted the wording of the Convention as subsequently ratified by States, and which has today, grosso modo , already become customary international law, that despite a fairly wide variety of views expressed initially by the members of the Commission for International Law and later also by the representatives of States at the Conference, the fundamental reason for the inclusion of this article in the Convention was evidently the prevailing view that, in principle, when concluding treaties the will of States cannot be free and unlimited, as is otherwise the case in international law. In fact, it is limited by certain fundamental norms and principles, by “ jus cogens ”. What limits the free will of States when concluding treaties ( jus contrahendi ), with other words, where this exceptionality of jus cogens that limits the sovereign will of States when concluding or amending treaties originates from, and what exactly jus cogens is are by all means questions that need to be touched on before we try to answer the question of whether fundamental principles of the UN Charter can also be classified as norms and principles of jus cogens . Whether there are norms and principles in international law which are beyond what the will of States can decide on is an old question that has been present in the international legal theory for centuries. In other words, whether international law is only the expression of the will of States conveyed in the formal sources of international law, indisputably defined in Article 38 of the Statute of the ICJ, or whether the will of States, especially when concluding treaties but also when creating customary international law, through their actual conduct, is nevertheless limited is the core problem of jus cogens . In the legal theory, the representatives of explicit positivism have denied the existence of jus cogens , while the representatives of natural law schools on international law in particular have substantiated its existence with arguments running the gamut from the idea of “God’s law” to various arguments seeking the answer to the question of what it is that limits the will of States as some higher law, i.e. jus cogens . Article 53 of the VCLT sine dubio introduces jus cogens into international law as a special legal category. There are no clear and uniform answers to a number of questions regarding jus cogens either in the wording of the text of the mentioned 6 Vienna Convention on the Law of Treaties, 1155 UNTS 331. 7 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (not yet entered into force). 8 On Article 53 of the VCLT see particularly K. Schmalenbach, Commentary to Art. 53 of the Vienna on the Law of Treaties of 1969, in: O. DÖRR, K. SCHMALENBACH (ed.), Vienna Convention on the Law of Treaties: a Commentary , Berlin 2012.
CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? Article or in the travaux preparatoires , in subsequent case law, theory, and practice of States. It may be claimed, however, that considering jus cogens to be a separate, new formal source of international law would be stretching it too far. 9 Jus cogens is to be found in treaties, customary international law, and general legal principles. Jus cogens can be detected, identified in these formal sources of international law, which are recognised as sources by all States. At the same time it is nevertheless obvious that the norms and principles of jus cogens are not the same as mere treaties or customary international law, which are both an expression of the will of States formed either directly (treaties) or indirectly, i.e. by actual conduct accompanied by opinio juris (customary international law). If jus cogens was just like a treaty or customary international law, which are both expressions of the will of States, it would be unacceptable, absurd ( contradictio in adjecto ) to claim that the States, which established jus cogens by their own free will, by concluding a treaty, cannot modify it with a new, different treaty. There is thus some logic in claiming that jus cogens can, however, be identified only through formal sources of international law, since the principles of jus cogens are not just suspended in the air but are present in the sources of international law. However, ius cogens entail norms and principles with a special legal character, special “quality” which is not just an expression of the will of States. This special “quality” of jus cogens , which is recognised by States in treaties and through their actual conduct (customary law), reflects the fact that jus cogens reflects and protects the fundamental values of the human society that has achieved a certain level of civilizational development. When they are adopted and implemented as such, as jus cogens , these norms and principles step out of reach of the sheer will of States and their practice. They are no longer treaties or customary international law or general legal principles in the sense of Article 38 of the Statute of the ICJ. They are jus cogens , which has a special nature and significance attributed to it by States – they cannot modify them by their own free will like they can the rest of international law – because they reflect and protect fundamental values of the current international community. 10 Article 53 of the VCLT refers to the norms that reflect the “accept[ance] and recogni[tion of ] the international community of States”. It is worth noting that already at the time of the drafting of the Convention on the Law of Treaties between States and International Organizations or between International Organizations and later, it was subject to much debate that jus cogens does not apply only to an “international community of States” as such, as a modern international community 9 For more on this topic see K. HOSSAIN, The Concept of Jus Cogens and the Obligation Under the UN Charter, in: Santa Clara Journal of International Law , vol. 3/2005, p. 79 id; whereas C. MIK, op. cit., p. 53, believes that “peremptory norms cannot be based on traditional sources of international law”. 10 C. MIK, op. cit., p. 92, stresses in particular that the norms of jus cogens are the “norms which protect universally recognized values connected with the existence of state and its nations as well as basic human values, the protection of which are in the interest of the world community”.
ERNEST PETRIČ CYIL 7 ȍ2016Ȏ is not comprised of States alone. To achieve jus cogens it does not suffice for the States to reach only a consensus (whatever type it may be), a majority, a qualified majority, unanimity of all – but a consensus of the “international community”, which is broader, since the modern international community does not include only States but also international organizations and other subjects, even individuals. Even if we adopted the so-called consensualist approach to jus cogens , we could only talk about an extremely broad consensus, which cannot reflect only the will of States, their larger or smaller “majority”, but a broader consensus that also includes other subjects of international community. Besides the fact that “consensus” is reflected in treaties and customary international law, it must also be expressed in general legal principles, in international and national case law, and in the prevailing legal theory. 11 There must be a very general, broad consensus for a certain norm or principle to be jus cogens . Within this broad consensus, which is, ultima ratio , the expression of a consensus on fundamental, undisputed values of a society and the international community that has attained a certain level of civilizational development, there can be no room either for “reservations”, for example, or for some “regional jus cogens ” or a “persistent objector”, which is otherwise possible in regarding treaties or customary international law. In other words: jus cogens cannot be found or identified outside the formal sources of international law. However, considering the specific nature of jus cogens , the consensus in the sense of Article 53 of the VCLT must here be understood and implemented as broadly as possible. Once the norms and principles of international law have been accepted as jus cogens , they are namely no longer in the realm of the free will of States that the latter could form at any given time. Due to the fact that States cannot simply derogate jus cogens by expressing their free will at any given time, as clearly derives from the VCLT and is the very essence of the “quality” of jus cogens , jus cogens exists separately, outside of the scope of the will of States as expressed at any given time. The “consensus” behind the norms and principles of jus cogens should therefore be as broad and lasting as possible. It should be the consensus of the entire “international community”, which is broader than a consensus of States. The legal theory on the nature and effects of jus cogens and the norms and principles of international law that are jus cogens is extensive. Particularly with regard to the theory supporting the consensualist approach to jus cogens and which evidently prevailed also when Article 53 of the VCLT was drafted and also in the subsequent mentions of jus cogens in international instruments, it should be stressed that if we limit ourselves to a “consensus of States”, in whatever manner we have defined it and tried to further qualify and detach it as much as possible from the scope of will of States formulated at any given time, jus cogens still remains within the domain of 11 On the particularly important role of the case law and legal theory in identifying jus cogens see M. SAUL, Identifying Jus cogens Norms: The Interaction of Scholars and International Judges, in: Asian Journal of International Law , 5 (2015), pp. 26-54.
CYIL 7 ȍ2016Ȏ PRINCIPLES OF THE CHARTER OF THE UNITED NATIONS ȃ JUS COGENS ? the will of States at any given time. Could these States modify the current jus cogens , by a broad consensus that would entail more than a mere consensus of States? If the answer is yes, jus cogens , ultima ratio , nevertheless remains in its essence either a part of treaty law or customary international law, which States can derogate from or modify provided that appropriate consensus has been reached. However, due to the fact that jus cogens reflects and protects fundamental values at a certain level of the social development of civilization, we need to consider an element of value in defining jus cogens and its nature, its special “quality”, i.e. an assessment of the value or the values that the norm or principle of jus cogens expresses or contains and protects. When defining the nature of jus cogens , it is thus also essential to establish which value it contains and protects, thus the value aspect of the principles and norms of jus cogens is also important. 12 Jus cogens cannot entail – even if such was agreed by a consensus of States – rules on the conduct of States in matters that are less important in terms of value, all of which is regulated by multiple treaties and rules of customary international law. Norms and principles such as the prohibition of the use of armed force in the relations between States, prohibition of racial discrimination, prohibition of genocide, prohibition of torture, and the like, enjoy the status of jus cogens not only because of the breadth of consensus, but also because they express and protect the values that are immanent, essential for the current level of social development and the development of international community. Without these values, the international community, but also humanity and our civilization would not be what they are. Jus cogens thus entails norms and principles of international law that States cannot fail to observe when concluding treaties even in the sense of Article 53 of the VCLT, which is itself just a treaty and in the strict sense applies only to the parties thereto, and consequently they cannot derogate the current jus cogens , due to the fundamental values that jus cogens contains and protects. A broad consensus on which jus cogens , its norms and principles are based is therefore important and expected. In determining whether a certain norm or principle of international law constitutes jus cogens – this can be specifically defined by a treaty, by customary international law or by the general principles of law – a review of how fundamental a value contained in or protected by a norm or principle is and of how consistent it is with the spirit of time, with the level of social development attained, and what the consensus behind it is, is thus at the forefront. Let me add that when the most fundamental values of international community reflecting the level of social development are at issue, the consensus regarding such norm is, as a general rule, broad and strong, and reaches beyond the scope of only the will of States. A concrete principle or norm of jus cogens thus, as a general rule, involves “consensus plus content”. It is difficult to imagine a jus cogens norm or principle of international law not to meet both requirements, not to protect an important value of the contemporary international community without 12 Similarly A. HAMEED, op. cit., p. 98: “The suggestion is that jus cogens status should be understood as being dependent on the moral beliefs […].”
ERNEST PETRIČ CYIL 7 ȍ2016Ȏ a broad international consensus. Or vice versa, it is difficult to imagine jus cogens to be a norm or principle of international law otherwise enjoying a broad consensus of States but regulating one of the less important issues which in a modern globalized world need to be legally regulated at an international level. UN Charter and jus cogens Having described all of the above, it is worth asking a question highlighted already in the title of this paper, namely “Do the principles of the UN Charter fall within the scope of jus cogens of international law?” These are the principles referred to in Article 2 of the UN Charter, which are laid down in more detail in the unanimously adopted “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (1970) (the so-called Declaration of Seven Principles). 13 If these principles of the Charter are jus cogens , then any possible agreement between States or any possible customary international rule which is contrary to these principles is void as a consequence. Deriving from what was said above, we need to answer the following questions in particular to be able to assess whether the principles determined by Article 2 of the Charter and by the “Declaration of Seven Principles” are jus cogens : Is each of these principles supported by a broad consensus of the international community, which is reflected in the practice of States, in international and national case law, 14 in legal theory, ultimately also in public opinion, we could say in the social consciousness of our era? Do these principles protect the fundamental values which underlie the international community today and which are the expression of the current level of civilizational development? And does the fact that it is about “principles” of the Charter and not the “rules” affect their possible jus cogens nature. The fact is that all States, including those few that are not members of the UN and whose sovereign statehood is more or less problematic (e.g. Kosovo, Taiwan, Palestine), recognise the binding character of the principles of the UNCharter in their international as well as national practice. Most of these seven principles are clearly the expression of the development of the international community and international life. The roots of the principle on the prohibition of the use of armed force thus go back to the period of the League of Nations, the Kellogg-Briand Pact, the aftermath of the cataclysm of the First and Second World Wars. 15 In our era, which is defined by the existence of the United Nations, we have no serious doubts about the fact that in the practice of States, in the international and national case law, in international and regional organisations, or in the legal theory, the prohibition of the use of armed force, within the limits as defined by the UN Charter, is one of the foundations
13 Resolution adopted by the General Assembly, 2625 (XXV), 24 October 1970. 14 This “practice” also includes verbal practice. 15 For more information see K. HOSSAIN, op. cit ., p. 89.