International Jus Cogens: Issues of Law-Making

V. Conclusion

The idea of international jus cogens as a body of rules having vital importance for the international community as a whole requires the creation of certain basic universal principles binding all states. In this regard it reflects the deeply felt need of the increasingly interdependent global community for a public order for all mankind. While the idea of overriding legal norms reflecting the fundamental interest of the international community as such clearly calls for some kind of legislation, it is far from established that its acceptance by the international legal order resulted in the introduction of such legislation on the basis of majority rule-making. The foregoing analysis shows that both the envisaged normative models for the peremptory law-making and the recent attempts to use the concept for legislative purposes remain controversial. The claim as to the recognition of majority rule-making in the context of jus cogens appears to enjoy some support. However, this view was firmly rejected by a significant number of states not only in principle, at the time when the novel concept was mooted, but also in concrete situations involving assertions and counter-assertions relating to the establishment of specific peremptory norms.

In the absence of an accepted international legislative power the emergence of effective international peremptory norms obviously requires the achievement of a genuine consensus among all the essential components of the modern international community. From a policy perspective, attempts to exploit the concept of jus cogens as a normative instrument for imposing the views of the majorities on the dissenting minority appear to be unwise. Such a policy fails to take into account the political realities prevailing in international relations. It is clear that as a practical matter a treaty or any other legal instrument purporting to embody peremptory rules cannot be effective if it lacks broad support. From this perspective, majority votes may turn out to be just Pyrrhic victories. While the debate as to whether a single nation or a very limited number of isolated states may be held bound by peremptory rules against their expressed will continues, it appears established that opposition to a proposed norm on the part of at least one important element of the international community, whatever its numerical strength, would undermine any claim that such norm is a general peremptory rule recognized as such by 'the international community of states as a whole.' As 'higher law' jus cogens clearly requires the application of higher standards for the ascertainment of the existence of community consensus as regards both the content and the peremptory character of the relevant rules. Only such an approach may ensure the required universality in the formation and subsequent implementation of rules designed to reflect and to protect the fundamental interests of the World Community.

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