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119
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.