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10
ERNEST PETRIČ
CYIL 7 ȍ2016Ȏ
is not comprised of States alone. To achieve
jus cogens
it does not suffice for the
States to reach only a consensus (whatever type it may be), a majority, a qualified
majority, unanimity of all – but a consensus of the “international community”,
which is broader, since the modern international community does not include only
States but also international organizations and other subjects, even individuals. Even
if we adopted the so-called consensualist approach to
jus cogens
, we could only talk
about an extremely broad consensus, which cannot reflect only the will of States,
their larger or smaller “majority”, but a broader consensus that also includes other
subjects of international community. Besides the fact that “consensus” is reflected in
treaties and customary international law, it must also be expressed in general legal
principles, in international and national case law, and in the prevailing legal theory.
11
There must be a very general, broad consensus for a certain norm or principle to
be
jus cogens
. Within this broad consensus, which is,
ultima ratio
, the expression of
a consensus on fundamental, undisputed values of a society and the international
community that has attained a certain level of civilizational development, there can
be no room either for “reservations”, for example, or for some “regional
jus cogens
” or
a “persistent objector”, which is otherwise possible in regarding treaties or customary
international law. In other words:
jus cogens
cannot be found or identified outside
the formal sources of international law. However, considering the specific nature
of
jus cogens
, the consensus in the sense of Article 53 of the VCLT must here be
understood and implemented as broadly as possible. Once the norms and principles
of international law have been accepted as
jus cogens
, they are namely no longer in the
realm of the free will of States that the latter could form at any given time. Due to the
fact that States cannot simply derogate
jus cogens
by expressing their free will at any
given time, as clearly derives from the VCLT and is the very essence of the “quality”
of
jus cogens
,
jus cogens
exists separately, outside of the scope of the will of States as
expressed at any given time. The “consensus” behind the norms and principles of
jus
cogens
should therefore be as broad and lasting as possible. It should be the consensus
of the entire “international community”, which is broader than a consensus of States.
The legal theory on the nature and effects of
jus cogens
and the norms and
principles of international law that are
jus cogens
is extensive. Particularly with regard
to the theory supporting the consensualist approach to
jus cogens
and which evidently
prevailed also when Article 53 of the VCLT was drafted and also in the subsequent
mentions of
jus cogens
in international instruments, it should be stressed that if we
limit ourselves to a “consensus of States”, in whatever manner we have defined it
and tried to further qualify and detach it as much as possible from the scope of will
of States formulated at any given time,
jus cogens
still remains within the domain of
11
On the particularly important role of the case law and legal theory in identifying
jus cogens
see
M. SAUL, Identifying
Jus cogens
Norms: The Interaction of Scholars and International Judges, in:
Asian Journal of International Law
, 5 (2015), pp. 26-54.