Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal  Reflections of the Special Rapporteur

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

African Yearbook on International Humanitarian Law ◽

10.47348/ayih/2020/a1 ◽

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.

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4 Recent Work of the International Law Commission

10.1093/law/9780198865957.003.0004 ◽

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.

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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

Nordic Journal of International Law ◽

10.1163/15718107-bja10007 ◽

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.

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5 State Practice

10.1093/law/9780198865957.003.0005 ◽

2021 ◽

Author(s):

Shelton Dinah

Keyword(s):

International Law ◽

International Organizations ◽

Special Rapporteur ◽

State Practice ◽

Jus Cogens ◽

International Law Commission ◽

Law Commission

This chapter focuses on state practice. The recent International Law Commission (ILC) work on jus cogens, especially in response to comments and critiques from States, paid great attention to state practice supporting the draft conclusions of the Special Rapporteur. Indeed, as much as possible, the SR and the ILC as a whole rooted his findings and recommendations in extensive citation of precedents. The invocation of practice was broadly inclusive, ranging from votes and official statements in international organizations, through treaty practice (including general comments and conclusions of treaty bodies), to international and national jurisprudence. This approach lends strength to the ILC work.

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Unilateral acts and peremptory norms (Jus Cogens) in the international law commission’s work

Review of Economics and Political Science ◽

10.1108/reps-11-2018-0030 ◽

2019 ◽

Vol 4 (3) ◽

pp. 182-196

Author(s):

Ibrahim Sief Abdel Hameed Menshawy

Keyword(s):

International Law ◽

International Community ◽

Common Interest ◽

Content Type ◽

The Common ◽

Jus Cogens ◽

International Law Commission ◽

Peremptory Norms ◽

Practical Implications ◽

Law Commission

Purpose This paper aims to explore the evolution of the notion of peremptory norms (Jus Cogens) in international law through the work of the International Law Commission on unilateral acts. Design/methodology/approach The study depended on analyzing the work of the International Law Commission on two topics: Unilateral Acts 2006 and Reservations to treaties 2011 to reveal the relation between jus cogens and unilateral acts. Findings Jus cogens restrict unilateral acts like treaties due to the recognition of the importance and necessity of the concept of Jus cogens in protecting the fundamental interests of the international community. Practical implications States must be compatible with jus cogens when making any reservation on a treaty and also when taking any unilateral act. Originality/value This paper reveals the importance of jus cogens in promoting the values of the international community and the need of such notion to protect the common interest of that community.

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Invocation of State Responsibility for Violation of Obligations Owed to the International Community as a Whole

Problems of Legality ◽

10.21564/2414-990x.154.238587 ◽

2021 ◽

Author(s):

Yu. V. Shchokin

Keyword(s):

International Law ◽

International Community ◽

Legal Responsibility ◽

State Responsibility ◽

The Public ◽

Progressive Development ◽

Jus Cogens ◽

The Right ◽

International Law Commission ◽

Law Commission

The article discusses the features of the application of paragraph 1 (b) of Art. 48 of the Draft Articles on State Responsibility, developed by the UN International Law Commission and taken into consideration by the UN General Assembly by its resolution 56/83 of December 12, 2001. The norm of this article enshrines the right of any state that is not a victim to call to international legal responsibility state that has committed a breach of an obligation owed to the international community as a whole. This rule contributes to the establishment in modern international law of the ancient Roman theory of actio popularis, according to which any citizen could file a claim in the public interest. The UN International Law Commission is considering paragraph 1 (b) of Art. 48 of the 2001 Draft Articles on State Responsibility as a result of the progressive development of International Law. This is manifested primarily in a new approach to the interpretation of concepts such as “the international community as a whole” and “obligation owed to the international community as a whole”. The article notes that the concept of "the international community as a whole" should no longer be considered as a community of sovereign states, since it already presupposes a more active participation in maintaining international legitimacy of all participants of international relations – subjects of international law. In addition, attention is drawn to the fact that the concept of “obligation owed to the international community as a whole” is a new category proposed by the International Law Commission as a part of the progressive development of the theory of erga omnes and jus cogens norms. The author compares these types of obligations and points out a number of problems that may arise while interpreting this concept in order to apply this rule in practice.

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The Responsibility Not to Veto Revisited under the Theory of ‘Consequential Jus Cogens’

Global Responsibility to Protect ◽

10.1163/1875-984x-20200002 ◽

2020 ◽

Vol 12 (3) ◽

pp. 299-335

Author(s):

Rana M. Essawy

Keyword(s):

International Law ◽

Security Council ◽

State Responsibility ◽

Legal Nature ◽

Un Security Council ◽

Jus Cogens ◽

International Law Commission ◽

Peremptory Norms ◽

Law Commission

In this article, I argue that contemporary international law imposes an obligation upon the UN Security Council permanent members to refrain from using their veto repeatedly in ways that impede the Council from acting against violations of peremptory norms. This obligation not to veto emanates from the duty to cooperate to end violations of peremptory norms as enshrined in Article 41(1) of the International Law Commission Articles on State Responsibility. For this purpose, I demonstrate that the duty to cooperate itself possesses a peremptory character under the theory of ‘consequential jus cogens’, whereby effects of jus cogens norms are themselves peremptory. In doing so, this article contributes to the ongoing debates concerning the legal nature of the effects of jus cogens norms by showing that the theory of ‘consequential jus cogens’ is an application of the generally accepted maxim accessorium sequitur principale and thus forms part of positive international law.

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