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8

ERNEST PETRIČ

CYIL 7 ȍ2016Ȏ

in international law, and specifically to Articles 53 and 64 of the VCLT of 1969,

6

which were later recapitulated also in the Vienna Convention on the Law of

Treaties between States and International Organizations or between International

Organizations of 1986.

7

First, it should be noted that it is evident from the analysis

of

travaux preparatoires

of Article 53 of the VCLT and the discussions held at the

Vienna Conference of 1969,

8

which adopted the wording of the Convention as

subsequently ratified by States, and which has today,

grosso modo

, already become

customary international law, that despite a fairly wide variety of views expressed

initially by the members of the Commission for International Law and later also

by the representatives of States at the Conference, the fundamental reason for the

inclusion of this article in the Convention was evidently the prevailing view that, in

principle, when concluding treaties the will of States cannot be free and unlimited, as

is otherwise the case in international law. In fact, it is limited by certain fundamental

norms and principles, by “

jus cogens

”. What limits the free will of States when

concluding treaties (

jus contrahendi

), with other words, where this exceptionality

of

jus cogens

that limits the sovereign will of States when concluding or amending

treaties originates from, and what exactly

jus cogens

is are by all means questions that

need to be touched on before we try to answer the question of whether fundamental

principles of the UN Charter can also be classified as norms and principles of

jus cogens

.

Whether there are norms and principles in international law which are beyond

what the will of States can decide on is an old question that has been present in

the international legal theory for centuries. In other words, whether international

law is only the expression of the will of States conveyed in the formal sources of

international law, indisputably defined in Article 38 of the Statute of the ICJ, or

whether the will of States, especially when concluding treaties but also when creating

customary international law, through their actual conduct, is nevertheless limited

is the core problem of

jus cogens

. In the legal theory, the representatives of explicit

positivism have denied the existence of

jus cogens

, while the representatives of natural

law schools on international law in particular have substantiated its existence with

arguments running the gamut from the idea of “God’s law” to various arguments

seeking the answer to the question of what it is that limits the will of States as some

higher law, i.e.

jus cogens

.

Article 53 of the VCLT

sine dubio

introduces

jus cogens

into international law

as a special legal category. There are no clear and uniform answers to a number of

questions regarding

jus cogens

either in the wording of the text of the mentioned

6

Vienna Convention on the Law of Treaties, 1155 UNTS 331.

7

Vienna Convention on the Law of Treaties between States and International Organizations or between

International Organizations (not yet entered into force).

8

On Article 53 of the VCLT see particularly K. Schmalenbach, Commentary to Art. 53 of the Vienna

on the Law of Treaties of 1969, in: O. DÖRR, K. SCHMALENBACH (ed.),

Vienna Convention on

the Law of Treaties: a Commentary

, Berlin 2012.