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ČESTMÍR ČEPELKA
CYIL 6 ȍ2015Ȏ
1. Introduction
In 2014 the International Law Commission (ILC) included the topic
jus cogens
in its Long-Term Programme.
1
It was also decided to prepare a syllabus of possi-
ble future topics (taking into consideration that of 1996)
2
by the end of the pres-
ent quinquennium and to establish a final list of these topics, possibly in 2016. It
is then shortly expected that the concept of
jus cogens
will become a topic of the
Commission for future study and so terminate the demands, postponed even many
times, of the needs of States as well as of international law doctrine.
Rules
juris cogentis
have been stabilized through the medium of customary
international law mainly as a consequence of German Nazi politics. The Nuremberg
trials are proof of this development. The first written expression of this progress is
the
Vienna Convention on the Law of Treaties
(1969), Article 53
3
– however, without
saying which are those rules
juris cogentis,
leaving the content of these rules to be
worked out in State practice and in the jurisprudence of international tribunals.
Nearly 30 years (27 exactly) passed before the Commission’s research of the subject
of
jus cogens
was included in the Long-Term Programme (1096).
4
But the Commission
did not decide at that time to incorporate the topic in its Programme of Work.
In the meantime, the Commission in 2001 adopted the entire Draft articles on
Responsibility of States for Internationally Wrongful Acts, with commentaries.
5
In
the commentary to its Article 40 examples of rules
juris cogentis
are indicated.
6
In 2002 the Commission began to study the topic
Fragmentation of international
law: difficulties arising from the diversification and expansion of international law
(2002 – 2006), thematically
inter alia
predestined to deal with rules
juris cogentis
.
Finally the Commission accepted 42 Conclusions,
7
on the basis of the Report of the
1
ILC Report on the work of its sixty-sixth session, 2014, A/69/10, p. 265, Chapter XIV, Other decisions
and conclusions of the Commission, para. 268. “The Working Group recommended the inclusion in
the long-term programme of work of the Commission of the topic, ’Jus cogens’, on the basis of the
proposal prepared by
Dire D. Tladi
(South Africa)”. In the Annex of this Report, p. 24.
2
See Yearbook ILC 1996, vol. II (Part Two), Annex II., p. 133, (I.) Sources of international law, (d)
Jus cogens (and related concepts). Proposed on the motion of A. Jacovides
(Cyprus), his outline “Jus
cogens”, see A/CN. 4/454, p. 213, in: Yearbook of ILC, 1993, vol. II(1).
3
Article 53. Treaties conflicting with a peremptory norm of general international law (
jus cogens
): “A treaty
is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.
For the purposes of the present Convention, 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.”
4
See note 2 above.
5
ILC Report on the work of its fifty-third session, 2001, A/56/10.
6
Ibid. (note 5 above), Commentary on Article 40, paras. 4-6, pp. 283-284.
7
ILC Report on the work of its fifty-eighth session 2006 (A/61/10), p. 407.