CYIL Vol. 7, 2016

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

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