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JUS COGENS AND THE QUESTION OF CRITERIA FOR ITS DETERMINATION
the sole codification of jus cogens , albeit with restrictions on international humanitarian
law. It is important to add that the Court shall have the power to exercise its jurisdiction
only as being complementary to national criminal jurisdictions (Art. 1) or if the relevant
State is unwilling or genuinely unable to carry out the investigation or prosecution
(Art. 17). This requirement is indeed a typical feature of norms juris cogentis.
4 The obligation to respect the right of self-determination
Currently the principle of self-determination is stabilized at a minimum as a legal
norm having jus cogens status. By contrast, in the sixties of the last century the principle
of self-determination necessarily possessed the character of jus cogens, for at that
time decolonization had been achieved.72 Post-colonial States themselves voluntarily
degraded the normative status of this rule (jus cogens ) by forcibly repressing any attempt
of an ethnic and/or linguistic group within this State to secede and form a new State.73
The supposed right of peoples to self-determination and its correlative obligation
in their application beyond the colonial context have also been considered by the
Badinter Arbitration Commission.74 The right to self-determination was here reduced
to a mere postulate respecting existing frontiers.75 Needless to say, numerous scholars
do not agree with this conclusion.76
5. Rules of non-derogable status but not being noms juris cogentis
Derogation is ex lege interdict if the issue is that of a peremptory norm of general
international law (jus cogens). However, there are norms of general international law
in the occurrence of which no derogation can occur either. The applied reason is
indeed their factual or logical impossibility.77 To give an illustration: the general rule
72 Significant in this relation was the Declaration on the Granting of Independence to Colonial Countries and
Peoples. Adopted by General Assembly resolution 1514 (XV) of 14 December 1960.
73 In this respect the case of Katanga (1960-1963) is best known , although with many external political
interests; see
74
75 See Pellet A., The Opinions of the Badinter Arbitration Committee. A Second Breath for the Self-
Determination of Peoples, European Journal of International Law (EJIL), vol. 3 (1992), p. 178-185.
Appendix: Opinions of the Arbitration Committee, Opinion No. 2, p. 183: “(...) 1. The Committee
considers that, whatever the circumstances, the right to self-determination must not involve changes to
existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree
otherwise. 2. Where there are one or more groups within a state constituting one or more ethnic, religious
or language communities, they have the right to recognition of their identity under international law (...).”
76 E.g. Orakhelashvili, A. The Impact of Peremptory Norms on the Interpretation and Application of
United Nations Security Council Resolutions, European Journal of International Law (EJIL), vol. 16
(2005), No. 1, p. 59, 64: “The right of peoples to self-determination is undoubtedly part of jus cogens;”
p. 76: “(…) the right of peoples to self-determination (…) consists in the entitlement of peoples to
decide freely on their political organization and future.”
77 See : “A condition or statement involving
contradiction or absurdity; as, that a thing can be and not be at the same time.”