In 2015, the International Law Commission (ILC) added Jus Cogens to its agenda. The essence of jus cogens, the method of identifying the peremptory norms, and the compilation of a “illustrative list” of such norms were among the particular legal topics indicated for investigation in the accompanying mandate. Special Rapporteur Dire Tladi emphasized in his initial report that the study on this issue was focused on process and technique rather than the content of certain laws and standards. As this issue raised crucial concern and criticism, this article is devoted to address distinct aspects of it.
Preemptory Norms of International Law
A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character (ILC,2017).
Peremptory norms of general international law reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable (Ibid).
To identify a peremptory norm of general international law , it is necessary to establish that the norm in question meets the following criteria: (Ibid)
- (a) it is a norm of general international law; and
- (b) it is accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character (Ibid).
Generally, there are two Bases for peremptory norms of general international law. These bases include;
1. Customary international law as the most common basis for peremptory norms of general international law .
2. Treaty provisions and general principles of law may also serve as bases for peremptory norms of general international law .
Also, To identify a norm as a peremptory norm of general international law , there must be evidence that such a norm is accepted and recognized as one from which no derogation is permitted and which can only be modified by a subsequent norm of general international law having the same character(Ibid). The evidence of acceptance and recognition that a norm of general international law is a peremptory norm may take a wide range of forms. Such forms of evidence include, but are not limited to: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; legislative and administrative acts; decisions of national courts; treaty provisions; and resolutions adopted by an international organization or at an intergovernmental conference(Ibid).
Besides, there are Subsidiary means for the determination of the peremptory character of norms of general international law(Ibid). In this sense, decisions of international courts and tribunals, in particular of the International Court of Justice, are a subsidiary means for determining the peremptory character of norms of general international law. In addition, the works of expert bodies established by States or international organizations and the teachings of the most highly qualified publicists of the various nations may also serve as subsidiary means for determining the peremptory character of norms of general international law(Ibid).
Also, ILC observed that in case of contradiction among a treaty and jus cogens, the respective treatyis void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law . Also, If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. The parties to such a treaty are released from any obligation further to perform the treaty.
Similarly, in the eyes of ILC, a rule of customary international law does not come into existence if it conflicts with a peremptory norm of general international law. This is without prejudice to the possible modification of a peremptory norm of general international law by a subsequent norm of general international law having the same character.
Preemptory Norms on the ILC’s Agenda
Since 2015, 23 draft conclusions has been drafted by the ILC. It defined jus cogens (rather uncontroversially) as the set of norms ‘from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’ (Vöhringer, 2021).
Accordingly, Conclusion 23 then identify the ‘non-exhaustive list’ of peremptory norms. The identified norms include the following (ILC,2017);
(a) The prohibition of aggression;
(b) The prohibition of genocide;
(c) The prohibition of crimes against humanity;
(d) The basic rules of international humanitarian law;
(e) The prohibition of racial discrimination and apartheid;
(f) The prohibition of slavery;
(g) The prohibition of torture;
(h) The right of self-determination.
However, such identification has been subject to criticism. As It’s difficult to ignore the self-contradiction. The ILC emphasizes in its conclusions that the existence of peremptory norms is determined by their adoption and recognition by states, and that court or expert body declarations can only play a minor part in this process. The Commission, on the other hand, differs from this approach by basing its list of particular jus cogens on its own past work — that is, on the judgments of an expert body – rather than on evidence of state acceptance (Vöhringer, 2021).
Conclusion
having a list of preemptory norms of international law has been a long-standing ambitions of international law scholars. In this sense, since 2015, ILC started to work on this issue as part of it’s agenda. Accordingly, in the draft document, ILC identified certain norms based on the it’s findings. The ILC, implicitly, asserts that its own identification of a jus cogens norm is sufficient for that norm to indeed have peremptory status; and in so doing, it contradicts its own methodological guidelines for identifying such peremptory rules (Ibid).
As a result, it is recommended that, in order to ensure that its results on the identification of jus cogens are persuasive, the Commission should develop a short list of peremptory rules that reflects, rather than contradicts, its own methodological recommendations in future work on this issue.
Bibliography
ILC, 2017, “Peremptory norms of general international law ”.
Vöhringer, 2021, “One Step Forward, Two Steps Back; The ILC’s Study on Jus Cogens and its List of Peremptory Norms”, accessed 23 October 2021 < https://voelkerrechtsblog.org/one-step-forward-two-steps-back/ >.
By The European Institute for International Law and International Relations.
