22 / 536
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.