CYIL Vol. 6, 2015

JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION Study Group finalized by Martti Koskenniemi as Special Rapporteur of the whole topic. 8 In Conclusion No. 33 concerning the content of jus cogens the survey of examples contained in the commentary to Article 40 of the Draft articles on Responsibility of States was utilized. 9 These examples are: the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and (the obligation to respect) the right to self-determination. Maybe an original thought is only contained in the following phrase: “Also other rules may have a jus cogens character inasmuch as they are accepted and recognized by the international community of States as a whole as norms from which no derogation is permitted.” 10 Freedom of the high seas, which, of course, has nothing to do with the Second World War (as stated above), used to be indicated as jus cogens as well. 11 Conceptually this principle also cannot be derogated. The view of Michael Wood (Great Britain), as Special Rapporteur of the topic Identification of customary international law, that “peremptory norms may be found in treaties just as much as in customary international law” 12 is then absolutely incomprehensible. This is his argument to not deal with jus cogens in the framework of the topic dedicated to customary law. 13 2. Legal consequences of breach of an obligation resulting from rules juris cogentis Non-derogation by treaty is then not the decisive and unique criterion for determination of rules juris cogentis if the wording of Article 53 of Vienna Convention on the Law of Treaties (1969) is choosen as the starting point. 14 This is because there are also rules of non-derogable status in other cases which are not rules juris cogentis (See below in more detail). According to the said Article 53 the derogating treaty is null and void; it is negotium nullum ex lege . But the treaty could even be kept secret, whereas conduct on that treaty cannot be concealed at all. The performance of such a treaty is thus a violation of the relevant norm; this breach is the concern of all States. In view of 8 See A/CN.4/L.682 (13 April 2006). 9 See note 5 above, Commentary on Article 40, paras. 4-6, pp. 283-284. See also http://en.wikipedia. org/wiki/Peremptory_norm 10 See note 7 above. There is here focus on existing rules and not those which will emerge as new peremptory norms (Art. 64 of the Vienna Convention on the Law of Treaties, 1969). 11 See e.g. the prestigious masterwork: Frowein, J. Ab, heading “Jus Cogens”, in: Bernhardt, R. (ed.), Max Planck Encyclopedia of Public International Law, Vol. 3, Amsterdam et al., 1997, pp. 65-69 (cited by M. Koskenniemi in: A/CN.4/L.682, p. 189, note 522). 12 See A/CN.4/653 (Note by Michael Wood), p. 6, para 23. 13 See A/CN.4/663, First report on formation and evidence of customary international law by Michael Wood, Special Rapporteur, p. 9 (Part two, para. IV.: “Whether jus cogens should be covered”). 14 For the text see note 3 above.

119