4 Recent Work of the International Law Commission

2021 ◽  
Author(s):  
Shelton Dinah
Keyword(s):  
International Law ◽  
South African ◽  
Vienna Convention ◽  
Special Rapporteur ◽  
Initial Report ◽  
Fourth Report ◽  
Definition Of ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms

This chapter examines the International Law Commission's (ILC) recent consideration of the topic of jus cogens. It was not until 2015 that the ILC decided to include the topic in its program of work and appointed South African member Dire Tladi as special rapporteur for the topic. The initial report of Tladi addressed conceptual matters such as the nature and definition of jus cogens norms. At its 69th Session in 2017, the ILC had before it the second report submitted by the Special Rapporteur which aimed to set forth the criteria for the identification of peremptory norms, using the Vienna Convention on the Law of Treaties (VCLT) as a starting point. Meanwhile, the third report of the Special Rapporteur considered the consequences and legal effects of peremptory norms of general international law. Finally, the fourth report, presented in 2019, dealt with the question of the existence of regional jus cogens and the contentious issue of whether or not to include an illustrative list of jus cogens norms in the conclusions to the study.

3 The Law of Treaties

2021 ◽  
Author(s):  
Shelton Dinah
Keyword(s):  
International Law ◽  
Special Rapporteur ◽  
The Third ◽  
Positive Law ◽  
The Law ◽  
Definition Of ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission

This chapter discusses how peremptory norms/jus cogens entered positive law with the Vienna treaties on treaties. Jus cogens was first included in the work of the International Law Commission (ILC) with the Third Report of G.G. Fitzmaurice, Special Rapporteur on the Law of Treaties, under the heading ‘legality of the object’. The first two special rapporteurs on the law of treaties supported the notion of peremptory norms in international law. During ILC work on the law of treaties, however, most of the members joined the ILC’s fourth special rapporteur on treaty law, Sir Humphrey Waldock, who sought to reconcile jus cogens with the doctrine of positivism. They spent little time speculating on the origin of jus cogens. The final ILC draft on the law of treaties was produced by Waldock. The work of the ILC on the law of treaties was based essentially on the notion of barring illegal agreements as a general principle of law. The chapter then provides a definition of jus cogens norms.

scholarly journals The Notion of Consent in Part One of the Draft Articles on State Responsibility

2014 ◽  
Vol 27 (1) ◽  
pp. 55-73 ◽  
Author(s):  
CLIFF FARHANG
Keyword(s):  
International Law ◽  
State Responsibility ◽  
Vienna Convention ◽  
Special Rapporteur ◽  
Primary Rule ◽  
International Obligations ◽  
The Law ◽  
Definition Of ◽  
Peremptory Norms ◽  
Secondary Rule

AbstractFor over three decades, it has been the International Law Commission's position that the circumstance of consent involves something other than the consent which, through the rule pacta sunt servanda, imparts objective force to international agreements. During the tenure of the second Special Rapporteur on the law of state responsibility, Roberto Ago, the Commission adopted the view that the former suspends the international obligations which are incumbent on states whereas the latter functions to create, modify, or extinguish the rules whence such obligations stem forth. However, as the result of the study carried out by its last Special Rapporteur, James Crawford, the Commission has now come to distinguish between the circumstance of consent defined as a justification for non-performance of subsisting obligations, and consent defined as a requirement for the application of obligations. In this contribution, it is argued that both analyses are problematic. The former gives succour to a mistaken view of the sources of international law. The latter is based on a misunderstanding of the primary-rule–secondary-rule terminology; it justifies itself by referring to an ill-conceived definition of the notion of peremptory norms, and no less importantly undermines the purposefully cumbersome mechanism envisaged in the 1969 Vienna Convention on the Law of Treaties for suspension of multilateral treaties as between certain of the contracting parties only.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

2020 ◽  
Vol 2020 ◽  
pp. 1-14
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Crimes Against Humanity ◽  
Peremptory Norm ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

Part V Jus Cogens beyond the Vienna Convention, 24 The Distinction between Jus Cogens and Obligations Erga Omnes

2011 ◽  
Author(s):  
Picone Paolo
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Legal Scholarship ◽  
Final Draft ◽  
Jus Cogens ◽  
International Law Commission ◽  
Historical Origins ◽  
Law Commission

This chapter demonstrates the necessary distinction between the two concepts in question, taking into consideration their different historical origins, their effects, and the reciprocal fields of application. It opposes the conception according to which only the rules creating obligations erga omnes could be considered as peremptory, as well as the theoretical opinion that all norms of jus cogens would produce, if breached, obligations erga omnes. It critically analyses how these erroneous conceptions are reflected in the solutions, although contradictory, adopted by the International Law Commission in the final draft on the responsibility of States approved in 2001. The last part of the chapter shows how the two concepts raise in their operation many different problems, which are not yet adequately considered in the legal scholarship.

Part V Jus Cogens beyond the Vienna Convention, 23 The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?

2011 ◽  
Author(s):  
Zemanek Karl
Keyword(s):  
International Law ◽  
Recent Trend ◽  
Vienna Convention ◽  
Customary International Law ◽  
National Courts ◽  
International Legal Order ◽  
The Will ◽  
Ordre Public ◽  
Jus Cogens ◽  
Peremptory Norms

When the Vienna Convention on the Law of Treaties confirmed the existence of peremptory norms of international law (jus cogens) they were conceived, like Roman jus publicum, as absolute law that could not be altered by the will of individual States. Scholars then transformed the concept into the manifestation of public policy (ordre public). They also argued for widening the scope of its application to unilateral legal acts and customary international law. A recent trend in academic theory assigns jus cogens an essential role in the constitutionalization of international law, postulating it either as hierarchically higher order or as embodying the constitutional principles. In view of the rashness of scholars in proclaiming the peremptory character of norms and also of the inexpertness of the European and national courts in applying supposedly peremptory international norms in their decisions, it seems better to keep jus cogens at its original task.

The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine

2020 ◽  
Vol 89 (2) ◽  
pp. 244-270
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
Number Of Factors ◽  
Jus Cogens ◽  
International Law Commission ◽  
Peremptory Norms ◽  
Law Commission ◽  
Do So

In the summer of 2019, the UN International Law Commission adopted a set of Draft Conclusions on Peremptory Norms of General International Law (jus cogens) on first reading. The Draft Conclusions cover various aspects relating to the methodology for the identification of peremptory norms and consequences of peremptory norms. The elaboration of the Draft Conclusions by the Commission provides an opportunity for the clarification of peremptory norms in order to take it out of the proverbial garage. Whether this potential is fulfilled will depend on a number of factors, including whether the Draft Conclusions are coherent, reflect practice, and address important practical considerations. The article suggests that, drawing on existing instruments, the Draft Conclusions formulate existing rules in more precise ways, and do so in a coherent manner.

Derogation and Defeasibility in International Law

2020 ◽  
pp. 108-124
Author(s):  
Andrea Dolcetti ◽  
Giovanni Battista Ratti
Keyword(s):  
Theoretical Model ◽  
Special Reference ◽  
International Law ◽  
Vienna Convention ◽  
The Difference ◽  
Jus Cogens ◽  
Peremptory Norms ◽  
The Relationship ◽  
Do So ◽  
The Way

In this chapter, we discuss the way in which implicit exceptions operate in the context of international law, with special reference to peremptory norms of general international law (i.e. jus cogens). To do so, we develop a theoretical model of exceptions based upon the notion of normative conflict. This model allows us to explain the relationship between derogation and defeasibility of peremptory norms of general international law. The chapter is organized in three parts. We begin by explaining the difference between explicit and implicit exceptions in light of the way in which different types of norms may conflict (section 1). We then consider the existence of explicit and implicit exceptions in international law vis-à-vis the existence of peremptory norms of general international law, which are by definition non-derogable (section 2). Finally, we employ our theoretical model—illustrated in section 1—to analyse Article 53 of the Vienna Convention on the Law of Treaties 1969, arguing that, in relation to jus cogens, the idea of non-derogation should be understood as referring to implicit and not explicit exceptions (section 3).

Jus Cogens: A Complex Case of Constitutional Reasoning in International Law

2020 ◽  
Vol 6 (3) ◽  
pp. 249-262
Author(s):  
Miodrag Jovanović
Keyword(s):  
International Law ◽  
Legal Order ◽  
Complex Case ◽  
Vienna Convention ◽  
International Governance ◽  
Teleological Argument ◽  
International Legal Order ◽  
State Actor ◽  
Jus Cogens ◽  
Peremptory Norms

Article 53 of the Vienna Convention on the Law of Treaties famously introduced a special class of international legal rules - jus cogens norms - without specifying its content. The paper proceeds by adopting the heuristic framework of constitutionalization of international law, arguing that jus cogens norms contribute to at least two constitutionalist functions - that of limiting the international governance and hierarchizing international legal order. Hence, it is possible to argue that jus cogens reasoning is a specific type of constitutional reasoning. Despite stipulated formal qualities of jus cogens norms, in trying to establish their content state actors are in the situation similar to constitutional adjudicators dealing with underdetermined legal content of a constitutional text. What directs the process of jus cogens reasoning is, thus, the particular nature of the subject-matter with which those norms deal. The last part of the paper provides the analytical reconstruction of the jus cogens constitutional reasoning, focusing on the process of ascertainment, which is to be taken by the community of states. It is argued that what ascertainment requires is, inter alia, resorting to a unique interpretative tool - reverse teleological argument - with the use of which the state actor can extract from the fundamental values of international legal order a class of peremptory norms of international law.

Law of Treaties

2019 ◽  
pp. 492-512
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
International Organizations ◽  
Armed Conflicts ◽  
Vienna Convention ◽  
Post Colonial ◽  
The Law ◽  
Iconic Status ◽  
Jus Cogens ◽  
Revolutionary Regime ◽  
International Law Commission

This chapter deals with the codification efforts of the International Law Commission (ILC). It analyzes three law of treaties Conventions that were drafted by the ILC. First, it analyzes the most successful of all the Conventions, the 1969 Vienna Convention on the Law of Treaties. It mostly has codified existing norms of customary international law but also introduced, inter alia, a revolutionary regime of reservations to treaties and dealt with a controversial (at the time) notion of the norms of jus cogens. This Convention has acquired an iconic status in international law and has become the most significant tool regulating the relations between states. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations has never entered into force. It has not proven as successful as its predecessor due to certain unresolved questions relating generally to the functions of international organizations. The 1978 Vienna Convention on Succession of States in respect of Treaties has entered into force; however, due to complexities of state succession in general, it has not played a prominent role, regulating mostly succession in respect of treaties of newly independent, post-colonial states. Finally, the chapter also analyzes Draft Articles adopted by the ILC in 2011 on Effects of Armed Conflicts on Treaties. The form to be given to the Articles is under consideration and governments are invited to comment on any future action regarding them. The list of categories of treaties in the annex suggests that due to its subject matter they will continue to operate, in whole or in part, in the event of armed conflict.

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