International Jus Cogens: Issues of Law-Making

II. Natural Law vs. Positivism

It is well known that the doctrine of international jus cogens was developed under a strong influence of natural law concepts. In contrast to positivists proclaiming complete, or almost complete, freedom of contract, naturalists always taught that states cannot be absolutely free in establishing their contractual relations. They were obliged to respect certain fundamental principles deeply rooted in the international community. It is not surprising, therefore, that the negotiations on jus cogens were accompanied by assertions of the continued importance of natural law. At the 1969 Vienna Conference on the Law of Treaties a number of states stressed the fact that jus cogens derived its origin from concepts of natural law.⁸ Many participants of the negotiations believed that rules of jus cogens are based on the legal conscience and moral beliefs of mankind.⁹ The acceptance of the jus cogens doctrine was perceived as a major crisis of legal positivism. In this connection some delegates called for reconsideration of the positivist theory.'¹⁰

Post-Conference scholarly discussions of jus cogens were marked by a revival of natural law thinking. Ch. de Visseher, writing after the adoption of the Vienna Convention, questioned the premises of positivism and suggested that 'la norme impérative procède directement d'un jugement de valeur morale ou sociale.'¹¹ The view according to which the essence of jus cogens is such 'as to blend the concept into traditional notions of natural law'¹² also continues to enjoy support in modern legal theory.

A preoccupation with broad natural and moral foundations of jus cogens may explain the clear disregard of fundamental questions of legal form characteristic for the process of the elaboration of the new concept of general international law. After many years of discussions the ILC proposed a draft article on peremptory rules which failed to indicate clear criteria by which such rules can be distinguished from other rules. The draft article simply stated that

a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. ¹³

In its commentary to this draft the ICL had to confess that 'there is no simple criterion by which to identify a general rule of international law as having the character of jus cogens.'¹⁴ The ILC also expressed the view that 'it is not the form of a general rule of international law but the particular nature of the subject-matter with which it deals that may, in the opinion of the Commission, give it the character of jus cogens.'¹⁵

At the Vienna Conference on the Law of Treaties the Expert Consultant, Sir Humphrey Waldock emphasized that the ILC 'based its approach to the question of jus cogens on positive law much more than on natural law.'¹⁶ Still many delegations believed that 'the form or source of such rules was not of essential importance in determining their peremptory character.'¹⁷ Serious doubts were expressed whether it was really necessary 'to specify the manner in which such norms came into being.¹⁸ The principal criterion of peremptory rules was considered to be the fact that they 'served the interests of the whole international community, not the needs of individual states.'¹⁹ Calls for more specific criteria were met by the argument that they were not really important. By relying on the domestic law analogy some delegations maintained that 'good customs, morals and public policy were not necessarily defined in municipal law, and yet no insoluble difficulties had ever arisen in applying them in specific cases.'²⁰

At the same time there was also a disquieting feeling that this new powerful concept lacking clear definition could be misused for political purposes. Many felt that in a heterogeneous international society consisting of nation-states with different interests and social systems it would be extremely difficult to obtain a genuine consensus of the content and ranking of community values and interests. There was a danger that the 'fundamental interests of the international community' would be interpreted subjectively. If no efforts were made to set up objective criteria for identification of norms reflecting these fundamental interests, then different groups of states would hardly be able to agree on what constitutes the corpus of norms of jus cogens. Indeed, the negotiations at the Vienna Conference on the Law of Treaties have shown that different states put forward the most diverging examples of the alleged rules of jus cogens each reflecting their own preferences. In commenting on the divergence of views on the various rules that had been referred to in the debate as having the character of jus cogens, the representative of the United Kingdom rightly drew attention to the fact that 'what might be jus cogens for one state would not necessarily be jus cogens for another.'²¹

From a broader perspective, it was also clear that community interests and moral values cannot be regarded as part of law, let alone part of 'higher law', without some form of approval within the recognized normative processes. As the representative of Brazil put it, 'international law was by definition formed by states, and no noble aspirations or sentiments, love of progress or anxiety for the well-being of the peoples of the world could be embodied in international instruments without the collective assent of the international community.'²² This emphasis on the need for some validation of the proposed peremptory principles paralleled the often-quoted pronouncement of the ICJ which stated that as a matter of law the ICJ could 'take account of moral principles only in so far as these are given a sufficient expression in legal form.²³

The need to provide the novel concept of 'higher law' with more or less clear criteria has resulted in a gradual 'positivization' of jus cogens. The Vienna Conference introduced a new element into the ILC's draft article on jus cogens consisting in the requirement according to which peremptory norms should be accepted and recognized by the international community of states as a whole.' The call for positive validation of peremptory norms through the 'acceptance' and 'recognition' by the community of states clearly brought the concept of jus cogens into the realm of positive law. However, even after this development it remained unclear what normative processes can bring about the emergence of peremptory rules.

In the realm of natural law there is no difficulty in postulating the existence of overriding principles binding on all subjects of law independently of their will. By contrast, the emergence of norms of jus cogens in positive legal orders involves legislative processes capable of imposing peremptory rules on all members of a particular community. While domestic legal systems based on legislation by a sovereign are well equipped in this regard, in international law there is a glaring gap between the requirements of the idea of jus cogens and the possibilities of the existing lawmaking processes. These processes provide for the creation of any rules only by the consent of the members of the international community. The consensual nature of the formation of international law is clearly reflected in the basic norm about the sources, Article 38 (I) of the Statute of the ICJ It lists conventions, custom and general principles of law. In the case of conventions, Article 38(I) requires their express recognition by the contesting states. Article 38(I) holds that customary general practice should be 'accepted as law'. Finally, 'the general principles of law' should also be 'recognized' by civilized nations. This essentially consensual view of international law is confirmed and developed by abundant international practice and caselaw. In its judgment in the Lotus case the Permanent Court of International Justice has stated: 'International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law.'²⁴ The ICJ has expressed essentially the same attitude in the Nicaragua Case: 'In international law there are no rules, other than such rules as may be accepted by the states concerned.'²⁵ In the international legal order the basic principle of consensuality is reflected in a number of specific rules governing the treaty and customary law-making processes and providing that treaties do not bind third states without their consent, while customary rules do not bind persistent objectors. Actual practice also demonstrates that as a rule governments deny the possibility of becoming bound by rules of international law against their will.²⁶

The apparent contradictions between the idea of jus cogens and the consensual nature of the formation of international law may in principle be resolved in two ways. The first would presuppose that the usual meaning of jus cogens, largely borrowed from domestic legal systems, cannot be transferred into international system. International rules of jus cogens would bind only those subjects of law who have accepted and recognized them. The second possibility involves the introduction into international system of a new law-making procedure which does not require the consent of individual states for the emergence of peremptory rules. Such a development would obviously amount to a fundamental change in the constitutional principles of the international legal order relating to law-making.

8 See, e.g., the statements of the representatives of Mexico (United Nations Conference on the Law of Treaties, Official Records, First Session at 294 (1969)), Italy (Id. at 311), Ecuador (Id.at 320), Monaco (Id.. at 324). (Hereinafter referred to as UNCLOT I).

9 See, e.g., the statements of the representatives of Mexico (Id. at 294), Lebanon (Id. at 297), Nigeria (Id. at 298), Uruguay (Id. at 303), Ceylon (Id. at 319), Ivory Coast (Id. at 320).

10 The statement of the representative of the Federal Republic of Germany (United Nations Conference on the Law of Treaties, Official Records, Second Session at 95 (1970)). (Hereinafter referred to as UNCLOT II).

11 De Visscher, 'Positivism et "jus cogens", 75 Revue générale de droit international public (1971)5,9.

12 Janis, 'The Nature of Jus Cogens', 3 Connecticut Journal of International Law (1988) 359, 361.

13 2 Yearbookof the ILC (1966) 247

14 Id. at 247-248.

15 Id. at 248. At a later stage the ILC once again confirmed this view by stating that the preeminence of fundamental obligations in international law over others 'is determined by their content, not by the process by which they were created.' 2 Yearbook of the ILC (1976 11) 85.

16 UNCLOT I, at 327.

17 The statement of the representative of Poland (Id. at 302). See also the statement of the representative of Cuba (UNCLOT II, at 97).

18 The statement of the representative of Israel (UNCLOT I, at 311).

19 The statement of the representative of Zambia (Id. at 322). For a similar view on the doctrinal level, see Verdross, 'Jus Dispositivum and Jus Cogens in International Law', 60 American Journal of International Law (1966) 55, 58.

20 The statement of the representative of Philippines (UNCLOT II, at 95). See also the statement of the representative of Cyprus (Id. at 103). See also A.M. Faluni, 'Peremptory Norms as General Rules of International Law', 22 Österreichische Zeitschrift für öffentliches Recht (1971) 383, 388.

21 UNCLOT I, at 305.

22 Id. at 317.

23 IG Reports (1966) 34. Although the quoted statement was made by the ICJ in the otherwise controversial judgment in the South West Africa Cases, its authority as a confirmation of the continued importance of legal form in international law remains unaffected. The statement was a response to a suggestion on the part of the applicants (Ethiopia and Liberia) that humanitarian considerations are sufficient in themselves to generate international legal rights and obligations. Ethiopia and Liberia claimed that 'distinction between "legal" norms, on the one hand. and norms of a "political or technical" nature, on the other, misconceives the true nature of the judicial process' (ICJ Pleadings, South West Africa Cases 491 (Vol. 4)). In their view it would be appropriate for the ICJ to 'draw upon humane, moral and political standards in deriving the sources of law' (Id. at 487).

24 PCIJ, Series A, No. 10. at 19 (1927).

25 ICJ Reports (1986) 135.

26 See infra notes 112-114 and accompanying text.

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