CYIL vol. 7 (2016)

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ERNEST PETRIČ CYIL 7 ȍ2016Ȏ
become or be law. Such a statute would naturally not constitute law; neither would
such a treaty constitute international law.
In international law and in the scholarly works on this topic, namely due to
the specific nature of this law, i.e. that the States themselves are the “legislature” of
the law and at the same time also those who are bound by such law, there has been
a recurring issue ever since Hugo Grotius, and even before his time, whether States
(“the legislature”) and their will are indeed free when creating the law and to what
extent they are free, especially when treaties are being concluded. Where are the
limits – if they exist at all – of the free will of States when they create international
law? Without encroaching on the theoretical considerations on the issue of natural
or positive law, one should mention only that in the period when the growing
internationalization of the way of life, in particular due to trade and other economic
relations, required a concrete international legal regulation by way of treaties, there
were no deep reflections on the limits of the will of States when creating international
law. Later, in the era of the two ideological and value systems, especially in the second
half of the 20th century, there were even fewer possibilities to reach a consensus
concerning the existence of principles and norms of international law, the alteration
or derogation of which would be exempt from the will of States. But then, there
has always been some doubt as to whether international law (i.e. international legal
order) really depends entirely on a concretely expressed and unlimited will of States,
or whether this will is nevertheless limited. I firmly believe that in the creation of
international law the will of the States is limited, particularly when concluding
treaties. Naturally, the concrete positive international law must, ultima ratio, be in
accordance, not with “God’s will” or some “natural justice” etc., but with the level of
social development and fundamental values of civilization which correspond to the
level of the development of human society.
In the 1960s, during a session of the International Law Commission (ILC), the
Commission was confronted with an actual issue regarding the limitation of the will
of States when concluding treaties. The Commission, having jurisdiction over the
codification and development of international law, was faced with this issue at the
time of its efforts to codify the international law on treaties. The results of discussions
held in the Commission and during the conference of States can be found in Article 53
of the Vienna Convention on the Law of Treaties (VCLT), which introduces the legal
concept of “jus cogens” in international law. 4 In the debate at the 70th anniversary of
4 On jus cogens see, for example, C. MIK, Jus Cogens in Contemporary International Law, in: Polish
Yearbook of International Law, 2013, Warsaw 2014, pp. 27-95; G. M. DANILENKO, International
Jus Cogens: Issues of Law-Making, in: 2 EUR. J. Int’l L., 1991; A. ORAKHELASHIVILI, Peremptory
Norms in International Law, Oxford 2006; L. HANNIKAINEN, Peremptory Norms in International
Law: Historical Develpment, Criteria, Present Status, Helsinki 1988; L. Aleksidze, Nekotorye voprosi
teorii mezhdunarodnogo prava. Imperativnye normi jus cogens, Tbilisi 1983; C. ROZAKIS, The
Concept of Jus Cogens in the Law of Treaties, Amsterdam 1976; R. KOLB, Observation sur l’evolution