The ILC’s Draft Conclusions on Peremptory Norms of General International Law: Personal Reflections of the Special Rapporteur

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.

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3 The Law of Treaties

10.1093/law/9780198865957.003.0003 ◽

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.

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

Leiden Journal of International Law ◽

10.1017/s0922156513000642 ◽

2014 ◽

Vol 27 (1) ◽

pp. 55-73 ◽

Cited By ~ 5

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.

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The Requisite Rigour in the Identification of Customary International Law: A Look at the Reports of the Special Rapporteur of the International Law Commission

SSRN Electronic Journal ◽

10.2139/ssrn.3135716 ◽

2017 ◽

Author(s):

Noora Arajjrvi

Keyword(s):

International Law ◽

Special Rapporteur ◽

Customary International Law ◽

International Law Commission ◽

Law Commission

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Statehood and the State-Like in International Law

10.1093/oso/9780198851219.001.0001 ◽

2019 ◽

Author(s):

Rowan Nicholson

Keyword(s):

Hong Kong ◽

International Law ◽

The State ◽

Alternative Methods ◽

Important Conclusion ◽

Territorial Integrity ◽

The Past ◽

Imperial China ◽

Peremptory Norms ◽

Legal Sense

If the term were given its literal meaning, international law would be law between ‘nations’. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities. An important conclusion of the book is that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state: subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Another conclusion is that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; pre-colonial African chiefdoms; ‘states-in-context’, an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.

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Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽

10.1163/18760759-42020008 ◽

2021 ◽

Vol 42 (2) ◽

pp. 335-353

Author(s):

Dire Tladi

Keyword(s):

International Law ◽

The Other ◽

High Threshold ◽

Other Hand ◽

State Practice ◽

The One ◽

Jus Cogens ◽

The Right ◽

Peremptory Norms ◽

Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

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The Role of Customary International Law in Regulating the Activities of Armed Groups in the Field of Human Rights

Actual Problems of Russian Law ◽

10.17803/1994-1471.2021.126.5.195-204 ◽

2021 ◽

Vol 16 (5) ◽

pp. 195-204

Author(s):

R. I. Sharipov

Keyword(s):

Human Rights ◽

International Law ◽

Armed Conflicts ◽

International Human Rights Law ◽

Armed Groups ◽

Customary International Law ◽

Protection Of Human Rights ◽

Jus Cogens ◽

Relationship Of ◽

Peremptory Norms

Over the past decades, there has been a significant increase in the number of armed groups involved in armed conflicts around the world, as well as in their impact on the rights and freedoms of the population under their control. Facing various situations of systematic violations of human rights by non-state actors, experts in the field of international human rights law began to consider the theoretical justification for the mandatory nature of the provisions on the observance and protection of human rights for armed groups. In this regard, a number of scholars have turned to the theory of customary international law, the acceptability of which is being investigated by the author of this paper. The author examines the provisions underlying this theory and the persuasiveness of the argumentation used by its supporters. Based on an analysis of the nature of customary international law, its structural elements, their interpretation by the UN International Court of Justice in its decisions and the relationship of customary international law with peremptory norms of jus cogens, the author concludes that the theory under consideration is currently unable to explain the existence of obligations of armed groups in the field of human rights.

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