International Jus Cogens: Issues of Law-Making

Gennady M. Danilenko¹

I. Introduction

The idea of international jus cogens as a body of 'higher law' of overriding importance for the international community is steadily gaining ground. First embodied in the 1969 Vienna Convention on the Law of Treaties,² it was recently confirmed by the 1986 Vienna Convention on the Law of Treaties.³ In its judgment in the Nicaragua Case the International Court of Justice (ICJ) clearly affirmed jus cogens as an accepted doctrine in international law. The ICJ relied on the prohibition on the use of force as being 'a conspicuous example of a rule of international law having the character of jus cogens.'⁴ The importance of the concept for the international legal order is further confirmed by the trend to apply it beyond the law of treaties, in particular in the law of state responsibility. By relying on ideas closely linked to jus cogens the International Law Commission (ILC) proposed the notion of international crimes resulting from the breach by a state of an international obligation `essential for the protection of fundamental interests of the international community'.⁵

The growing acceptance of the jus cogens doctrine is also reflected in the increased reliance on specific peremptory rules in the official argumentation of governments. From a law-making perspective, of major importance is the fact that States developed a tendency to rely on the concept of jus cogens in their efforts to achieve profound changes in the existing law. States pressing for the rapid reforms in the existing international legal order regard the concept as a powerful tool of renovation. The proponents of reforms have discovered that by creating a few peremptory principles they may bring about radical changes in the entire system of the existing legal relationships.⁶ In different departments of international law serious efforts have been undertaken to introduce new peremptory rules of general international law.⁷

As of specific problems relating to jus cogens, many of which remain unresolved. Paradoxically, one of the still unresolved questions concerns the definition of normative procedures by which rules of fundamental importance for the community of states may be created. From a theoretical perspective, it remains unclear how the international community lacking any legislative power can accommodate the idea of overriding principles binding all of its members. While in internal legal orders the introduction of peremptory rules binding all subjects of law raises no difficulty, the absence of any international legislature capable of imposing legal rules on the members of the international community is a major obstacle highlighting the tenuous ground for the very existence of international jus cogens, at least in the usual meaning of the term. As a practical matter, there is a growing danger that in the absence of clearly defined procedures for the creation of peremptory norms their emergence and subsequent identification may become a matter of conflicting assertions reflecting political preferences of different groups of states. Lack of consensus as regards the basic parameters of the law-making process leading to the emergence of peremptory rules inevitably opens the door for the political misuse of the concept.

The purpose of this article is to analyse some of the fundamental questions relating to the notion of jus cogens from a law-making perspective. It shows that although some of the relevant procedural issues have been clarified, the elaboration of a coherent theory of jus cogens remains a predominant challenge for the international community.

1 Doctor of Law, Senior Research Fellow at the Institute of State and Law, Academy of Sciences, Moscow, Russia, USSR.

2 The Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331. Art. 53 of the Convention contains the following provision relating to jus cogens: 'A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.'

3 The Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, 1986, UN Doc. A/Conf. 129/15 (1986). Art. 53 of this Convention repeats verbatim the corresponding Article of the 1969 Convention (supra note 1).

4 ICJ Reports (1986) 100

5 See Draft Articles on State Responsibility, Art. 19. 2 Yearbook of the ILC (1976 II) 73. For a detailed discussion, see J.H.H. Weiler, A. Cassese, M. Spinedi (eds), International Crimes of States: A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (1989).

6 See in this connection Art. 64 of the Vienna Convention on the Law of Treaties (supra note 1) which states: 'If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.' See also Draft Articles on State Responsibility, Art. 18, para. 2: '... an act of the state which, at the time when it was performed, was not in conformity with what was required of it by an international obligation in force for that state, ceases to be considered an internationally wrongful act if, subsequently, such an act has become compulsory by virtue of a peremptory norm of general international law.' 2 Yearbook of the ILC (1976 H) 87.

7 See, infra notes 78-102 and accompanying text

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