Writing Colombia Eng

8/11/2019 Writing Colombia Eng

1/28

INTERNATIONAL PEREMPTORY NORMS (JUS COGENS) ANDINTERNATIONAL HUMANITARIAN LAW

Rafael Nieto-Navia

1. INTRODUCTION

The notion ofjus cogensin international law encompasses the notion of peremptory norms in

international law.1In this regard, a view has been formed that certain overriding principles of

international law exist which form a body of jus cogens.2These principles are those from

which it is accepted that no State may derogate by way of treaty. s a res!lt they are generallyinterpreted as restricting the freedom of States to contract while "voiding# treaties whose ob$ect

conflicts with norms which have been identified as peremptory.%&owever, both the scope and

in fact very existence of this concept has been debated within the international legal

comm!nity for many years.'(onsens!s was finally reached as to a definition d!ring the

)ienna (onference held in 1*+* the )ienna (onference- and this was codified in rticle %

of the )ienna (onvention on the /aw of Treaties 1*+*the )ienna (onvention-.

This article considers first the development of the c!rrent overwhelming view that norms of jus

cogens exist in international law. 0ithin this analysis I briefly consider the debate as to the validity

of international law itself, s!mmariing what are generally accepted as the so!rces of international

law from which concepts ofjus cogensare drawn3 I contin!e with consideration of the development

of the concept ofjus cogensboth theoretically and legally !p to and incl!ding an analysis of the

debates d!ring the )ienna (onference and the s!bse4!ent prom!lgation of the )ienna

(onvention. Second, I identify what are accepted as being the constit!ent elements of concepts of

jus cogens in international law while also providing some brief examples. Third, I consider the

existence and impact of emerging norms ofjus cogensin international law. 5o!rth, I consider the

invalidity of a treaty whose ob$ect is considered to be in violation of a principle ofjus cogenseither

beca!se of a conflict with existingjus cogensor emergingjus cogens-. nd finally fifth, I consider

the existence of principles ofjus cogensin international h!manitarian law if any-.

6!dge of the ppeals (hamber for the International (riminal Trib!nals for the former 7!goslavia I(T7- and8wanda I(T8-. The views expressed herein are those of the a!thor and do not represent the views of theI(T7, I(T8 or the 9nited :ations. The a!thor wo!ld li;e to than; determined3 arbitrary3 not re4!iring any ca!se tobe shown. BlacksLaw Dictionary Sixth ?dition, 1**@-, p.11%+.

2 I. 2'@3 D.5a!chille, &rait% $e Droit International Public!)ol. I, 1Ere partie 1*22-, p. 223 . )erdross, 'orbi$$en &reaties inInternational Law, %1 6I/ 1*%C- pp. C1 et se(. 5or a contrary view, see (. 8o!ssea!,Principes $e Droit

International Public 1*''-, pp. %'@>%'1 and )ol. I,Droit International Public 1*C@-, pp. 1%@>1%1.5 )ienna (onvention on the /aw of Treaties 1*+*-, 9.:. Foc. G(=:5.%*G2C.


2/28

2. DEVELOPMENT OF JUS COGENS

2.1. Te vali!it" of i#te$#atio#al la%

8ecognition of international law itself as a valid corp!s of r!les has been a grad!al process.+t a

national level, the existence and therefore validity of the law is 4!ite clear. /aw is created andenforced by virt!e of the power of the State exerted over its citiens individ!als-. s has beenstated, Hin systems of m!nicipal law the concept of formal so!rce Hof law refers to theconstit!tional machinery of law>ma;ing and the stat!s of the r!le is established by constit!tional

law.C5or this reason it is considered to be "valid.# &owever, s!ch a formal str!ct!re is absent in the

international arena. International law has been described as oneof thepossiblesets of laws for

ordering the world being based on the wills of all or many nations.A/argely as a res!lt of its very

nat!re that is, the fact that it is comprised of many sovereign States co>existing- the internationalcomm!nity is characteried by the absence of any defined sovereign or formal str!ct!recomparable to that present within national $!risdictions.

It is however clear that States have become more and more dependant on each other, aphenomenon perhaps largely attrib!table to the growing "instit!tionaliation# of the

international comm!nity.*This so>called interdependence re4!ires reg!lation. ltho!gh this

is sometimes achieved by way of agreements reached between individ!al States thelac!na is also filled thro!gh the recognition by individ!al States of a so>called international"conscience# which imposes legal reg!lation on the actions of States and in doing so

ens!res international respect for basic social val!es.1@

Similarly this is reflected in the so>

called international moral infrastr!ct!re11

which itself is s!b$ect to normative disciplines.12

s a res!lt of the reg!lation of States by international law, the concept of "nationalsovereignty# has !ndergone an evol!tion and today States are reg!lated by both their ownnational r!les together with the contin!ally developing laws of the international

comm!nity.1%These laws develop or are created not by an international legislator orsovereign, b!t very generally thro!gh the consens!s of States which have recognied that

certain "val!es# amo!nt to valid legal norms which m!st be respected as between States.1'

In this regard, it is possible to tal; of the "validity# of international law.

Sir .0atts, 1**2-, )ol. 1, pp. % et se(.

7 I.


3/28

&aving recognied the general validity of international law, before one can identify thosenorms which may be designated norms of overriding importance within this law, it isnecessary to identify the so!rces from which they may be drawn. The so!rces ofinternational law are generally regarded as having been exha!stively en!merated in rticle%A1- of the Stat!te of the International (o!rt of 6!stice I(6-

The (o!rt, whose f!nction is to decide in accordance with international law s!ch disp!tes as ares!bmitted to it, shall apply

1. international conventions, whether general or partic!lar, establishing r!les expressly recognisedby the contesting states3

2. international c!stom, as evidence of a general practice accepted as law33. the general principles of law recognied by civilised nations3

4. s!b$ect to the provisions of rticle *, $!dicial decisions and the teachings of the most highly 4!alifiedp!blicists of the vario!s nations, as s!bsidiary means for the determination of r!les of law.

It is immediately noteworthy that norms of jus cogensare not incl!ded specifically as beinga "formal# so!rce of international law. called "!niversal

reasoning# which is not based on individ!al nationalities or race b!t is rather common to all. In

doing so, they arrived at an idea of a "!niversal State# in which all men sho!ld be e4!al.1+

5or the Spanish theologians of the M)I cent!ry recognied as being the fo!nders of modern

international law-, for Lroti!s and for other classical writers there existed certain "principles#1C

which

amo!nted to ajus naturale necessariumnecessary nat!ral law-.1A

0olff1*

and )attel2@

stated that there

existed necessary law which was nat!ral to all States and that all treaties and c!stoms whichcontravened this "necessary law# were illegal. Lroti!s stated that principles of nat!ral law were so

imm!table that not even Lod co!ld change them.21

:at!ral law was the dictate of right reason

involving moral necessity, independent of any instit!tion N h!man or divine.22

:at!ral law

?!ropean 6o!rnal of International /aw ?6I/-, p. '2. ltho!gh States may violate international law, generally it is not beca!se

they believe they are not s!b$ect to it. "ee!6. /. '1 seebelow-.

16 This was notwithstanding the fact that the ideal of absol!te e4!ality was bl!rred by a prevalent distinctionbetween "absol!te# and "relative# nat!ral law. "ee0. 5riedmann, &he #hanging "tructure of International LawSpanish?dition, 1*+C-, p. 1@2 and in general, 8. :ieto>:avia, +stu$ios "obre Derecho Internacional P6blico1**2-, pp. +1>A%.17 S!ch notions were said by the Thomists, to be present in the h!man mind.

18 ****1* **1***, ristotle, 8et. I, 1%.

19 (. 0olff, -us 7entium1C+'-, para. .

20 ?. de )attel, Le Droit $es 7ens ou Principes $e la Loi 8aturelle!1CA-, para. *.

21 &. Lroti!s, De -ure Belli 0c Pacis Libri &res1+2-, 1, (h. 1, M, .

22 /. &anni;ainen, Peremptory 8orms 9-us #ogens: in International Law!&elsin;i, 1*AA-, p. %@.%


4/28

was therefore interpreted as being a necessary law which all states are obliged to observe.2%

Itincl!ded a theory that there existed !niversally binding principles of law which co!ld not be

changed by anyone.2'

In recogniing the existence of nat!ral law principles, most philosophers

were also in general agreement that there existed an international comm!nity2

to which allsovereignties sho!ld s!bmit in the interests of what co!ld be described as the common good of

h!manity.2+

They disting!ished betweenjus naturale necessariumandjus oluntariumor vol!ntary

law, described as consent based law or law created by the pres!med, express or tacit will ofStates. In partic!lar, they considered that principles of jus naturale necessarium co!ld not be

amended by way of agreements reached in the exercise of vol!ntary law.2C

=ne can also recall inthis context the views of


5/28

:evertheless for some a!thors the very fo!ndation of law remained what was contained in

f!ndamental hypothetical norms grun$norm:%'

, nat!ral law%

or la soli$arit% naturelle.%+

The

concept of norms ofjus cogensdeveloped partly from these concepts. &owever, they are notthe sole so!rce or origin. This is beca!se altho!gh nat!ral law theory is based on a belief thatthere exist concepts exterior to and above positive law and which are contained in overridingf!ndamental binding norms,jus cogensis not. =n the contrary norms ofjus cogens form an

integral part of "positive# law itself and are defined and recognied by international law. s willbe seen, these norms are norms which are accepte$ an$ recogni=e$by the internationalcomm!nity as norms from which no derogation is permitted. Therefore altho!gh as with nat!rallaw theories, most of these norms derive from ethical or sociological considerations, their

character derives from within international law and from the will of States.%C

2.2.2 Fo$*al le'al $e&o'#itio# of te &o#&et of Jus Cogens

+,+,+,i Develo*e#t lea!i#' . to te Vie##a Co#fe$e#&e

The aforementioned theories of positivism contin!ed to dominate the development of

international law !ntil the early part of the twentieth cent!ry. The concept of peremptory normswas not "formally# accepted in international law !ntil the latter half of that cent!ry, b!t as stated

above the idea that these norms existed in international law did not disappear completely.%A

5irst as has been seen, academics contin!ed to ac;nowledge the existence of peremptory norms

on an informal basis.%*

=ppenheim stated in 1*@ that in his view a n!mber of "!niversally

recognised principles# of international law existed which rendered any conflicting treaty void andthat the peremptory effect of s!ch principles was itself a "!nanimo!sly recognised c!stomary r!le of

International /aw.#'@

Similarly, &all stated that Hthe re4!irement that contracts shall be in

conformity with law invalidates, or at least renders voidable, all agreements which are at variancewith the f!ndamental principles of international law and their !ndisp!ted applications, and with the

arbitrary !sages which have ac4!ired decisive a!thority.'1

Second, moves towards a more "formal# recognition of this concept within internationally binding

instr!ments and $!rispr!dence began to appear after 0orld 0ar =ne, with for example the incl!sion of

relevant articles in both the (ovenant of the /eag!e of :ations and the Stat!te of the Dermanent (o!rt

of 6!stice later, the Stat!te of the I(6-. rticle [email protected] of the (ovenant of the /eag!e of :ations

also, L. Borelli, 8o=ioni $i Diritto interna=ionale1*1-, p. %C and 4Lotus5 -u$gment:o. *, 1*2C, D.(.I.6.Series , :o. 1@ at p. 1A.34 &. Jelsen, 7eneral &heory of Law an$ "tate1*'-, pp. 11@ et se(.

35. )erdross, )*lkerrechtSpanish translation, 1*C-, pp. 21 et se(.

36 L. Scelle, Pr%cis $e Droit $es 7ens1*%2-, premiKre partie, %3 #ours $e Droit international public1*'A-,pp. etse(.

37 D. 0eil, Le Droit International en >u?te $e son I$entit% , 2%C 8ec!eil des (o!rs 1**2-, )ol. +, pp. 2++ N2+C 0lors(ue le $roit naturel $e nagu2re %tait con@u comme e1t%rieur et sup%rieur au $roit positif! le jus cogens$aujour$hui fait partie int%grante $u syst2me! puis(ue cest le $roit international luiAm?me (ui $%finit certainesnormes $e rang sup%rieur au1(uelles la olont% $es +tats ne peut $%roger.538 /a!terpacht states that in modern times more and more importance is being accorded to concepts of nat!rallaw. "ee!&. /a!terpacht, Priate Law "ources an$ 0nalogies of International Law1*2C-, as 4!oted by 0. 6en;s in&he#ommon Law of /ankin$ Spanish ?dition !ndated-, p. 2* original 1*A-.

39 "ee 6. /. J!n,La #rise et les &ransformations $u Droit $es 7ens, AA, II, 8ec!eil des (o!rs 1*-, pp. 1>1@'. lso,&he #hanging Law of 8ations, 1 6I/, pp. CC>A%.

40 B.


6/28

of 1*1* interpreted by 6!dge SchQc;ing, below-, provided that members of the /eag!esho!ld not enter into treaties which were incompatible with the terms of the (ovenant.'2

0hile later, rticle %A1-c- of the Stat!te of the Dermanent (o!rt of 6!stice, adopted in

1*2@'%

incl!ded the general principles of law recognied by civilised nations within the

so!rces of law applicable by the (o!rt.''

In 1*%', 6!dge SchQc;ing of the D(I6 interpreted rticle 2@ of the /eag!e of :ations as follows

The (ovenant of the /eag!e of :ations, as a whole, and more partic!larly its rticle 2@O,wo!ld possess

little val!e !nless treaties concl!ded in violation of that !nderta;ing were to be regarded as absol!tely n!ll

and void, that is to say, as being a!tomatically void. nd I can hardly believe that the /eag!e of :ations

wo!ld have already embar;ed on the codification of international law if it were not possible, even to>day,

to create ajuscogens, the effect of which wo!ld be that, once States have agreed on certain r!les of law,

and have also givenan !nderta;ing that these r!les may not be altered by some only of their n!mber, any

act adopted in contravention of that !nderta;ing wo!ld be a!tomatically void.'

Similarly, in 1*%*, resol!tion of the celebrated disp!te over the contract agreement between

the Shei;h of b! Fhabi and a


7/28

S!ch was the approach generally ta;en by international law with the abandonment of strictpositivist theories. The draft article onjus cogensbro!ght to )ienna by the International/aw (ommission the I/(- essentially reflected these developments and opinions.'*

+,+,+,ii Jus Cogens a !i&.e! !.$i#' te Vie##a Co#fe$e#&e

The I/( began preparations for a convention on the law of treaties at its first session held in 1*'*.

Saab,"ummary ecor$ of the Discussion on the #oncept of -us #ogens inPublic International Law3 S. B!rty,-us #ogens in International Law."ee also 6. St!c;i,-us #ogens an$ the )ienna#onention on the Law of &reaties, 1*C'-, pp. 1*'>2@'. s!mmary of the views of States on the draft article wereincl!ded by 0aldoc; in the report fo!nd in )ol. II, I/( 7earboo; 1*++-, pp. 2@ et se(.

56 Fraft rticle %C in 1*+% which became draft rticle @ in the report to the )ienna (onference in 1*++-read Treaties conflicting with a peremptory norm of general international law jus cogens:. treaty is void if itconflicts with a peremptory norm of general international law from which no derogation is permitted and which canbe modified only by a s!bse4!ent norm of general international law having the same character. This draft wasfinally adopted !nanimo!sly in 1*+%. "ee)ol. I, I/( 7earboo; 1*+%-, pp. 2*1 N 2*1 the article was thenn!mbered 1%-.

57 The principles drawn from the report are 4!oted exactly, altho!gh the n!mbering has been added.C


8/28

treaty is void if it conflicts with a r!le ofjus cogensand to leave the f!ll content of this r!le to be wor;edo!t in State practice and in the $!rispr!dence of international trib!nalsO.

6. HIt wo!ld clearly be wrong to regard even r!les ofjus cogensas imm!table and incapable of modificationin the light of f!t!re developmentsOThe article, therefore defines r!les of jus cogensas peremptorynorms of general international law from which no derogation is permitted and which can be modifiedonly by a s!bse4!ent norm of general international law having the same characterO.

7. HThe article is designed to excl!de the arbitrary determination of the invalidity, termination or s!spension

of a treaty by an individ!al State s!ch as has happened not infre4!ently in the past and to ens!re thatreco!rse shall be had to the means of peacef!l settlement indicated in rticle %% of the (harterHA

O.

8. HThere is no 4!estion of the present article having retroactive effects. It concerns cases where a treaty isvoid at the time of its conclusion by reason of the fact that its provisions are in conflict with an alreadyexisting r!le ofjus cogens O.

9. HThe emergence of a new r!le ofjus cogensis not to have retroactive effects on the validity of a treaty.

The invalidity is to attach only from the time of the establishment of the new r!le ofjus cogens.*

s will be seen below, d!ring the )ienna (onference it became clear that in reality altho!gh most

States ac;nowledged in principle the existence in international law of peremptory norms they

differed somewhat as to how they co!ld be identified and defined. :evertheless, based largely on

the I/( report and draft article+@

and following the debates at the )ienna (onference, the article as

it appears today see below- was adopted by what has been described as a rather impressive

ma$ority+1

of AC votes A votes against+2

and 12 abstentions+%

-.

+,+,+,iii Te Vie##a Co#ve#tio# o# te La% of T$eatie

rticle % of the )ienna (onvention is recognied as setting o!t the c!rrent internationallyaccepted definition ofjus cogens.It provides

T$eatie &o#fli&ti#' %it a e$e*to$" #o$* of 'e#e$al i#te$#atio#al la% (jus cogens)

treaty is void if, at the time of its concl!sion, it conflicts with a peremptory norm of

general international law. 5or the p!rposes of the present (onvention, aperemptory norm of general international law is a norm accepted and recogniedby the international comm!nity of States as a whole as a norm from which noderogation is permitted and which can be modified only by a s!bse4!ent norm of

general international law having the same character.+'

+,+,+,iv Diffi&.ltie a$ii#' afte$ te Vie##a Co#fe$e#&e

The I/( itself had already recognied the problems in attempting to codify the concept of jus

cogens in international law. In its report to the )ienna (onference it ac;nowledged that Hthe

form!lation of the article is not free from diffic!lty, since there is no simple criterion by which to

identify a general r!le of international law as having the character ofjus cogens. Boreover, the

Article %% of the (harter of the 9nited :ations provides 1. The parties to any disp!te, of which is li;ely to

endanger the maintenance of international peace and sec!rity, shall, first of all, see; a sol!tion bynegotiation, en4!iry, mediation, conciliation, arbitration, $!dicial settlement, resort to regional agencies orarrangements, or other peacef!l means of their own choice. 2. The Sec!rity (o!ncil shall, when it deemsnecessary, call !pon the parties to settle their disp!tes by s!ch means.59 )ol. II, I/( 7earboo; 1*++- pp. 2'C et se(.

60 The draft article was adopted at the )ienna (onference largely as s!ggested, save for the addition of primarilythe words accepted and recognised by the international comm!nity of States as a whole. G(=:5. %*G(. 1G/ , p. %@+.61 6. St!c;i, -us #ogens an$ the )ienna #onention on the Law of &reaties!1*C'-, p.1A.

62 !stralia,


9/28

ma$ority of the general r!les of international law do not have that character, and States

may contract o!t of them by treaty.+

F!ring the debates held at the )ienna (onference the 5rench delegate, B. &!bert++

wasone of the delegates who pointed o!t the problems he anticipated wo!ld potentially arise

thro!gh codification of the concept.+C

In partic!lar, he pointed o!t the following

1. &e expressed a general concern that the article was imprecise as to scope, formationand effect. &e stated that it declared voidOan entire category of treaties b!t failed tospecify what treaties they were, what were the norms whereby they wo!ld be voided, or

how those norms wo!ld be determined.+A

2. &e stated that imprecision in the article wo!ld mean that disp!tes wo!ld become a

permanent feat!re in its interpretation and as a res!lt both legal instr!ments andinternational relations wo!ld be !ndermined.

3. &e stated that if the article was interpreted to mean that a ma$ority of States co!ldcreate r!les of jus cogens then the res!lt wo!ld be the creation of a so!rce ofinternational law s!b$ect to nocontrol and lac;ing all responsibility.

In s!m, he stated that his delegation was not prepared to ta;e a leap in the dar;, and toaccept a provision which, beca!se it failed to establish s!fficiently precise criteria, opened

the door to do!bt and comp!lsion.+*

These criticisms, directed primarily at the diffic!lties inherent in identification of peremptorynorms of international law, were by no means new. The criticisms have also not gone awayand in more recent times concerns are still being raised. =ne can cite by way of example,)irally, who wrote in 1*A% that it is $ifficile $affirmer aujour$hui si une seule r2gle $e $roit

international a pusatisfaire le crit2re $%fini C larticle E $e la #onention $e )ienne. C@

0hile in 1**2 0eil wrote &ous ces facteurs HC1

se conjuguent pour inter$ire C lheure

actuelle encore F plus $e ingtansGapr2s la #onention $e )ienne F toute i$entification!m?me appro1imatie! $es r2gles $e jus cogens.

C2

:otwithstanding these criticisms, almost all States recognied prima facie the existence of jus

cogens in international law and it was on this basis that rticle % of the )ienna (onvention was

adopted.C%

Since 1*+*, it is clear that the international comm!nity as a whole has contin!ed to

accept the existence of these norms from which no derogation is permissible thro!gh agreement or

!nilaterally. s a res!lt, it is possible to state that the definition agreed !pon in the )ienna

(onvention is probably more than simply valid for the p!rposes of the (onvention and is rather

valid as a definition of the concept for the general p!rposes of international law.C'

65 )ol. II, I/( 7earboo; 1*++-, pp. 2'C> 2'A.

66 5rance event!ally voted against the incl!sion of final rticle %.

67 G(=:5.%*G11Gdd. 1, pp. *% et se(..

68 G(=:5.%*G11Gdd. 1, p. *', no. A.

69 G(=:5.%*G11Gdd. 1, p. *, no. 1A.

70 B. )irally, Panorama $u Droit International #ontemporain, 1A% 8ec!eil des (o!rs 1*A%-, p. 1CA. B.)irally was a member of the 5rench delegation to the )ienna (onference. s seen above, 5rance was stronglyopposed to the incl!sion in the )ienna (onvention of an article reg!lating jus cogens.

71 :amely a concern regarding the ris; of rendering the international system !nbalanced.

72D. 0eil, Le Droit International en >u?te $e son I$entit%, 2%C 8ec!eil des (o!rs 1**2-, p. 2C1.

73 8eport of the Sixth (ommittee to the Leneral ssembly d!ring the eighteenth period of sessions1*+%-, 9: Foc. G+@1.

74 B. ;eh!rst,0 /o$ern Intro$uction to International LawSpanish ?dition, 1*C2-, p. C%.*


10/28

3. JUS COGENS IDENTIFIED

&aving considered the general definition of jus cogens in the )ienna (onvention thefollowing are identified as being the pre>re4!isites necessary for a norm in internationallaw to be "elevated# to the stat!s of a norm ofjus cogensin international law

A, Te #o$* *.t /e a #o$* of generali#te$#atio#al la%,

Leneral international law is international law that is binding on most, if not all, States. It isthe law which governs the international comm!nity in general as is far the greater part of

c!stomary law.C

This is disting!ished from both regionalinternational law, which is onlybinding !pon States from an identified geographical region and particularinternational law!s!ally contained within treaties- which is only binding !pon a few States.

Schwarenberger considered the possibility of the existence of jus cogens inter partes, that is,

norms ofjus cogenshaving a limited effect only between identified or signatory parties.C+

S!cha notion envisaged the creation of norms of jus cogens by way of treaty, and thereafterobservance of the re4!irement that Hevery treaty in force is binding !pon the parties to it and

m!st be performed by them in good faith pacta sunt seran$a-.CC&owever, s!ch a treaty islimited by the fact that there is no overriding r!le prohibiting derogation one of the identifyingcharacteristics ofjuscogens! as seen below- and the norm is only binding between the limited

n!mber of States parties.CA

:ot all norms of general international law have the character ofjus

cogens.C*

&owever, Hthe criterion for Hthe r!les Hofjus cogens consists in the fact that theydo not exist to satisfy the need of the individ!al states b!t the higher interest of the whole

international comm!nityA@

as can been seen in certain of the r!les of general international lawcreated for a h!manitarian p!rpose see below-.

2. Te #o$* *.t /e 0a&&ete! a#! $e&o'#i1e! /" te i#te$#atio#al

&o**.#it" of State a a %ole,234

cceptance and recognition by the international comm!nity can be either e1press or implie$.

Interpretation of how broad this acceptance m!st be however remains s!b$ect to debate. s

pointed o!t by the (hairman of the Frafting (ommittee at the )ienna (onference Br. 7asseen, the

words as a whole were added to draft rticle @ by the I/( to try to avoid a sit!ation whereby one

State co!ld effectively veto a decision to designate a norm as peremptory

75 /. =ppenheim, Oppenheims International Law!:inth ?dition, edited by Sir 8. 6ennings and Sir . 0atts,1**2-, )ol. 1, p.'. 0hat is referred to as generalinternational law in this article is referred to as uniersalinternationallaw in Oppenheims International Law! while the word general is employed to describe international laws that arebinding!pon a great many states.

76 L. Schwarenberger, &he Problems of International Public Policy!(!rrent /egal Droblems 1*+-, p. 1*1 at p.1*'."ee also, by the same a!thor&he In$uctie 0pproach to International Law 1*+-, p. 1@@ and International

Law,1*C-, )ol. I, pp. 21% et se(.77 "eerticle 2+ of the )ienna (onvention.

78 The I/( expressly excl!des regional international law when referring to the chapeauof draft article @. )ol.1, I/( 7earboo; 1*+%-, p. 21'.

79 This means that not all generalinternational law treaties even those ratified by a very large n!mber ofStates can be classed asjus cogens. This problem will be disc!ssed f!rther infra.80 . )erdross, -us Dispositium an$ -us #ogens in International Law, +@ 6I/ 1*++-, p A.

81 The words recognied by the comm!nity of States were incl!ded by an amendment proposed by Spain,

5inland and Lreece G(=:5.%*G(. 1G/ and dd. 1 and 2-. The Frafting (ommittee introd!ced the words as a

whole. H/a prati4!e de ces derniEres annKes no!s montre 4!e le reco!rs P la notion de comm!na!tK

international n#est pl!s l#apanage des pays en voie de dKveloppement dans la mes!re o les ?tats occidenta!x,

hier les pl!s rKticents, n#hKsitent pl!s, a!$o!rd#h!i, P invo4!er la dKfense de la dite comm!na!tK a! nom de droit.

6>. (arrillo>Salcedo, #ours 7%n%ral$e Droit International Public, 2C 8ec!eil des (o!rs 1**+-, p. 1%2.

1@


11/28

Othere was no 4!estion of re4!iring a r!le to be accepted and recognied as peremptory by allStates. It wo!ld be eno!gh if a very large ma$ority did so3 that wo!ld mean that, if one State inisolation ref!sed to accept the peremptory character of a r!le, or if that State was s!pported by avery small n!mber of States, the acceptance and recognition of the peremptory character of the r!le

by the international comm!nity as a whole wo!ld not be affected.A2

Therefore it is the case that before a norm can be considered as jus cogens it m!st beaccepted and recognied by the international comm!nity of States as a whole in somerespects similar to the way in which norms of general c!stomary international law are formed-.&owever, this does not mean that the norm m!st be accepted by all States !nanimo!sly-.0hat is most important is that only some s!b$ects of international law, acting alone or in

con$!nction with others cannot createjuscogensA%

and thereafter impose their interpretation

on the ma$ority of States. Similarly, only some s!b$ects acting alone or in con$!nction with

others cannot in theory veto a decision ta;en by a ma$ority of States.A'

=ne can state generally that norms of jus cogens can be drawn from the followingidentified so!rces of international law

(1) Leneral treaties.

It is well accepted in international law that treaties do not bind non>parties witho!t their

consent.A

&owever, one exception to this principle are those conventions or treaties whose

ob$ects and p!rposes render them more important. This will be considered f!rther belowwhen disc!ssing international h!manitarian law. &owever it can be noted that if a treaty orconvention simply codifies existing norms which are already binding on States asc!stomary international law, States not party to the convention or treaty in 4!estion maynevertheless find that they remain bo!nd by the terms of the relevant c!stomary law

principle.A+

Similarly, if provisions of s!ch treaties or conventions satisfy the other criteria to

be recognised asjus cogens!States not party to them will also be bo!nd by their terms3

(2) International c!stom.

International c!stom is defined as being evidence of a general practice accepted as law.AC

:otwithstanding the process of codification of international law !nderta;en by the I/( over

82 G(=:5. %*G11, p. 'C2.

83 (. Tom!schat, Obligations 0rising for "tates


12/28

the years a large portion of international law remains c!stomary in nat!re. Indeedeven the many so>called "general# treaties see below- are often in fact simplycodification of existing c!stomary law r!les. 5or certain a!thors norms of jus cogens

are to be fo!nd primarily in international c!stomAA

3

(3) Leneral principles of law recognied by civilied nations.A*

3. Te #o$* *.t /e o#e f$o* %i& #o !e$o'atio# i e$*itte! a#! %i&&a# /e *o!ifie! o#l" /" a ./e5.e#t #o$* of 'e#e$al i#te$#atio#al la% of

te a*e &a$a&te$,67

It co!ld be stated that this is in fact the main identifying feat!re and "essence# of a norm of jus

cogens. ltho!gh the next section of this article will attempt to ill!strate, by way of selected

examples, norms which one can state have been accepted by most as being norms of jus cogens!

with regard to this criteria in partic!lar it is easier to ill!strate these r!les than to define them.*1

ccordingly, it is possible to draw a preliminary classification of norms*2

that do not permit

derogation by inter>parties treaties or otherwise

(1) :orms which have a f!ndamental bearing on the behavio!r of the

international comm!nity of States as a whole and from which no $erogation

is permitte$ at all.*%

=ne example is the principle of good faith*'

3

(2) :orms which are necessary for the stability of the international$!ridical order, for example pacta sunt seran$a

* and general

principles of law*+

incl!ding res inter alios acta*C

3

88 . Bc:air, &he Law of &reaties1*+1-, pp. 21'>213 Jat, /agonissi (onference, p. 1@@3 T!n;in,/agonissi (onference, p. 1@2. Some a!thors thin; that onlyinternational c!stom can createjus cogens.Seefor example, 6. St!c;i, -us #ogens an$ the )ienna #onention on the Law of &reaties! 1*C'-, p. C', wherehe mentions Bonaco and 0engler.

89 rticle %A1-c- Stat!te of the I(6. The role of general principles of law as a so!rce of international law isoften considered to be "s!pplementary.# "eegenerally . )erdross, )*lkerrecht!Spanish translation, 1*C-, p. 12+and -usDispositium an$ -us #ogens in International Law, +@ 6I/ 1*++-, pp et se(. &owever it co!ld also bestated thatmost of these principles are bindingper se. The fact that allStates consider that immoral agreementscontra bonosmores- are not binding i$. ibi$. 1'%-, is a general principle of law, as affirmed by 6!dge SchQc;ingin his individ!alopinion in &he Oscar #hinn #ase!1*%'- D(I6 8ep. Ser. G (arrillo>Salcedo,#ours 7%n%ral $e Droit International Public! 2C 8ec!eil des (o!rs 1**+-, p. 1%.

93 These are not strictu sensunorms as defined in rticle % of the )ienna (onvention.

94 "ee Dechota,#arnegie +n$owment #onference on the Process of #hange in International Law 94Benton(onference5:8eport, p. 1.

95 "eerticle 2+ of the )ienna (onvention ?very treaty in force is binding !pon the parties to it and m!st beperformedby them in good faith.96 5rom which derogation is logically impossible.

12


13/28

(3) :orms referred to as having h!manitarian ob$ects and p!rposes incl!ding

certain principles of h!man rights and international h!manitarian law*A

3

(4) :orms of general interest to the international comm!nity as a whole orto international p!blic order. ?xamples are the goals and aspirations

set o!t in the preamble to the (harter of the 9nited :ations

0? T&? D?=D/?S =5 T&? 9:IT?F :TI=:S F?T?8BI:?F to save s!cceeding

generations from the sco!rge of war, which twice in o!r lifetime has bro!ght, !ntold

sorrow to man;ind, and to reaffirm faith in f!ndamental h!man rights, in the dignity and

worth of the h!man person, in the e4!al rights of men and women and of nations large

and small, and to establish conditions !nder which $!stice and respect for the obligations

arising from treaties and other so!rces of international law can be maintained, and to

promote social progress and better standards of life in larger freedom

and3 the D!rposes and Drinciples of the 9nited :ations, as set o!t in

interalia!rticles 1.2**

and 2.1 N 2.'1@@

respectively of the (harter of the9nited :ations. These incl!de respect for e4!al rights and self>

determination of peoples1@13 sovereign e4!ality of States3 f!lfilment ingood faith of international obligations3 settlement of international disp!tes

by peacef!l means1@2

3 prohibition of the threat or !se of force against

other States in any manner inconsistent with the p!rposes of the 9:1@%

3

97 This r!le forbids the introd!ction of collateral facts which by their nat!re are incapable of affording anyreasonable pres!mption or inference as to the principal matter in disp!te, and th!s evidence as to acts, transactions orocc!rrences to which acc!sed is not a party or is not connected is inadmissible. Blacks Law DictionarySixth ?dition,1**@-, p. 1%1@. "eealso 6. St!c;i, -us #ogens an$ the )ienna #onentions on the Law of &reaties,1*C'-, p. C2.

98 . )erdross, -us Dispositium an$ -us #ogens in International Law!+@ 6I/ 1*++-, pp. * > +@. This is in fact ageneral concl!sion as not all norms of h!man rights can be incl!ded. In general terms one can state that !nder juscogens States are obliged to respect h!man rights. Specific h!man rights which can be considered as part ofjus cogensare for example, those prohibiting the trade of h!man beings not only "slavery# as defined, b!t also the traffic of womenand children extended and tolerated in ?!rope today-. 0ith regard to international h!manitarian law, seebelow.

99 rticle 1.2, setting o!t one of the p!rposes of the 9nited :ations, provides in f!ll To develop friendlyrelations among nations based on respect for theprinciples of e(ual rights an$ selfA$etermination of peoples,and to ta;e other appropriate meas!res to strengthen !niversal peace ?mphasis added-.

100 rticles 2.1 N 2.' provide as follows The =rganisation and its Bembers, in p!rs!it of the D!rposes stated in rticle 1,shall act in accordance with the following Drinciples. 1. The =rganisation is based on the principle of the soereigne(uality of allits /embers. 2. ll Bembers, in order to ens!re to all of them the rights and benefits res!lting from membership, shall fulfil ingoo$ faith the obligations ass!med by them in accordance with the present (harter. %. ll Bembers shall settle theirinternational $isputes by peaceful means in s!ch a manner that international peace and sec!rity, and $!stice, are notendangered. '. ll Bembers shall refrain in their international relations from the threat oruse of force against the territorialintegrity or political in$epen$ence of any state, or in any other manner inconsistentwith the D!rposes of the 9nited :ations?mphasis added-.

101 B. D. (ot and . Dellet, La #harte $es 8ations ;nies

1*A-, p. 1@C'.102 ccording to 6. (harpentier this principle is a r!le of c!stomary law binding on all States b!t is not jus cogens. &ereaches this concl!sion based on the fact that d!ring the disc!ssion on the Feclaration on Drinciples of International /awconcerning 5riendly 8elations and (o>operation among States in ccordance with the (harter of 9nited :ations 9:. 8ep,s!ppl. :o. ', )ol. 1, p. %+%- a proposed amendment to consider this principle as expressing a !niversal $!ridical conviction bythe international comm!nity was re$ected (ommentary to rticle 2, paragraph % of the (harter, in 6>D. (ot and . Dellet, La#harte $es 8ations ;nies1*A-, p 1@.

103 #ase #oncerning /ilitary an$ Paramilitary 0ctiities In an$ 0gainst 8icaragua , 6!dgement of 2C 6!ne 1*A+, I(68eports 1*A+- the 8icaraguacase-, pp. 1@@>1@1. B. intervention par la force dans les l!ttes intestines est !ne norme imperative de Froit international Le

#onsentement C la Ing%rence /ilitaire $ans les #onflits Internes1*C'-, pp. 12@ and C*-. In the #ase #oncerning ;nite$ "tates

Diplomatic an$ #onsular "taff in &ehran, 6!dgment of 2' Bay 1*A@, I(6 8eports 1*A@-, pp. '2>'%, the I(6 stated S!ch events

Hsetting at na!ght the inviolability of a foreign embassy cannot fail to !ndermine the edifice of law caref!lly constr!cted by

man;ind over a period of cent!ries, the maintenance

1%


14/28

(5) :orms which are binding on all new States even witho!t their consentas being established r!les of the international comm!nity. ?xamplesare the principles of the freedom of the high seas or the commonheritage of man;ind, the protection of the environment and respect for

the independence of States.1@'

=ne final observation sho!ld be made. 8!les ofjus cogenscan be defined in general terms as being

non>derogable r!les of international "p!blic policy.#1@

Liven their overriding importance and indeed

beca!se often they involve matters of international p!blic order it can be stated that each and every

State has a legal interest therein.1@+

s a res!lt, one can state that peremptory obligations are owed by

all States and other s!b$ects of international law- to the international comm!nity of States as a whole.

=ne can recall the well>;nown dict!m of the I(6 in the Barcelona &ractioncase

Hn essential distinction sho!ld be drawn between the obligations of a State towards theinternational comm!nity as a whole, and those arising vis>P>vis another StateO.


15/28

4. E8AMPLES OF JUS COGENS111

ltho!gh rticle % of the )ienna (onvention provides some g!idance to the identification of juscogens nevertheless "elevation# of norms of international law to the stat!s ofjus cogens is not aneasy tas;. There are obvio!s ris;s in over !se of the notion and conse4!ently often attempts to do

so attract criticism.112

This is partic!larly so when for example attempts are made to exha!stively

list entire treaties as beingjus cogens.

11%

In fact, as has been stated more a!thority exists for thecategory ofjus cogensthan exists for its partic!lar contentO

11':evertheless it is possible to give

some examples of norms which have been considered as peremptory in nat!re.

0e begin with the examples p!t forward by the I/( in its final report to the )ienna (onference.

s noted above, the I/( decided against the incl!sion of specific examples of jus cogens in

the draft article forwarded to the )ienna (onference. Its reasons were the following

5irst, the mention of some cases of treaties void for conflict with a r!le of jus cogensmightOlead tomis!nderstanding as to the position concerning other cases not mentioned in the article. Secondly, ifthe (ommission were to attempt to draw !p, even on a selective basis, a list of r!les of internationallaw which are to be regarded as having the character of jus cogens, it might find itself engaged in a

prolonged st!dy of matters which fall o!tside the scope of the present articles.11

It did however incl!de in its report examples p!t forward by certain of its members, by way ofill!stration Has being, some of the most obvio!s and best settled r!les of jus cogensin order to

indicate by these examples the general nat!re and scope of the r!le contained in the article.11+

In

this way, it is s!ggested that it managed to ill!strate, witho!t recommending that specific examplessho!ld be incl!ded in the final article, how it hoped the concept wo!ld be interpreted. Specific

examples11C

incl!ded were 1- Drinciples of the (harter of the 9nited :ations prohibiting the

!nlawf!l !se of force11A

3 2- International laws that prohibit the performance of any other act

suffere$ in the "erice of the ;nite$ 8ations , dvisory =pinion of 11 pril 1*'*, I(6 8eports 1*'*-, p. 1A."ee alsothe 8uclear &ests #ases, where in 1*C' the I(6 considered that !nilateral statements made by the5rench a!thorities that 5rance wo!ld not carry o!t new n!clear atmospherics tests in the So!th Dacific=cean were erga omnes, that is, directed towards the international comm!nity 8uclear &est #ase 90ustralia. 'rance:!6!dgement of 2@ Fecember 1*C', I(6 8eports 1*C'-, p. 2%, para. @ and 8uclear &est #ase98ew Jealan$ . 'rance:!6!dgement of 2@ Fecember 1*C', I(6 8eports 1*C'-, p. 'C, para. 2.111 part from these brief examples, we will consider primarily the impact and presence of jus cogens in the field ofinternational h!manitarian law.

112 "ee for example, . F#mato,Its a Bir$! Its a Plane! Its -us #ogens! + (onnectic!t 6o!rnal of International /aw,1**@, 1. F#mato stated that s!ch over !se of the concept has res!lted in the promotion to the stat!s of s!pernorm ofseemingly limitless n!mbers of r!les of international law and h!man rights law. &e stated that HThe sheer ephemerality of juscogensis an asset, enabling any writer to christen any ordinary norm of his or her choice as a new jus cogens norm, thereby inone stro;e investing it with magical power. F#mato also criticied the identification of what he referred to as a gaggle ofs!bstantive norms and the claim that the entire body of h!man rights norms are norms of jus cogens5by J. Dar;er and /.


16/28

criminal !nder international law3 and %- International laws that oblige States to co>operate

in the s!ppression of certain acts s!ch as trade in slaves, piracy or genocide.11*

It is noteworthy that both /a!terpacht and 5itma!rice in their respective reports had alsoattempted to define or provide examples of peremptory norms of international law. /a!terpacht inhis first report provided as examples the prohibitions against privateering and slavery in the

Feclaration of Daris of 1A+ and the Slavery (onvention of 1*2+ respectively.12@

R!oting Bc:airhe explained his interpretation of the impact of jus cogenson treaties It is believed that a treatybetween two States the exec!tion of which contemplates the infliction !pon a third State of what

c!stomary international law regards as a wrong is illegal and invalid ab initio.121

5itma!rice in his

report in 1*A referred generally to norms concerning the international protection of individ!als, theprohibition of wars of aggression and the "hypothetical# convention containing the agreement of aState of not interfHering in case Hother State sho!ld command its vessels to commit piratical acts

in the high seas.122

&e concl!ded by stating that it was not possibleOto state exha!stively what

are the r!les of international law that have the character of jus cogens!b!t a feat!re common tothem, or to a great many of them, evidently is that they involve not only legal r!les b!t

considerations of morals and of international good order.12%

=ther examples can be drawn from remar;s made by delegates d!ring the )ienna (onference. 5or

example, the Italian delegate, Br. Baresca, referred to r!les of an absol!te character being those which

protected the h!man person and ens!red the maintenance of peace and the existence and e4!ality

of States. &e stated that this was an example ofjus naturaliswhich has its original so!rce in what he

referred to as man;ind#s awareness of the law and the conscience of man;ind.12'

?xamples of acts

or treaties permitting s!ch acts considered by delegates at the )ienna (onference as being contrary to

norms of jus cogenswere acts violating certain h!man rights norms, s!ch as acts contrary to certain

laws of war, colonialism and racial discrimination.12

5inally, acts contrary to f!ndamental norms of the

international comm!nity s!ch as the principle of the freedom of the high seas were considered by the

Dolish delegation as being in violation of a norm of $!s cogens.12+

5. EMER9IN9 NORMS OF JUS COGENS4+:

ltho!gh the previo!s section has attempted to ill!strate briefly certain examples of norms of

international law which have been considered peremptory it is important to recall that international

non>member States. J. emane;, &he Legal 'oun$ations of the International "ystem! 22 8ec!eil des (o!rs1**C-, p.2%1 footnote omitted-.

119 These examples largely reflect those initially in the second report by 0aldoc; in 1*+%. This report progressed fromgiving partic!lar examples ofjus cogensto being more general. "ee)ol. II, I/( 7earboo; 1*+%- pp. 2 et se(.Bore general

examples which expanded the proposed interpretation beyond consideration of acts that constit!te crimes !nder internationallaw were treaties violating h!man rights, the e4!ality of States or the principle of self determination. "ee!

120 . (assese, #ommentary to 0rticle K! Paragraph of the #harter, in 6>D (ot, and . Dellet, La#harte $es 8ations;nies 1*A-, p. ' Il ne fa!t pas o!blier !n a!tre grand mKrite des :ations 9nies cel!id#avoir progressivement transformK !n post!lat politi4!e et !ne norme programatoire 4!i l#incorporait Nl#article 1, paragraph 2 Nen !n des principes $!ridi4!es f!ndamenta!x de la (omm!na!tK international, dotKsde la force $!ridi4!e spKciale propre a!juscogens.121 )ol. II, I/( 7earboo; 1*%-, pp. 1' N 1.

122 )ol. II, I/( 7earboo; 1*%-, p. 1'.

123 )ol. II, I/( 7earboo; 1*A-, p. '@.

124 )ol. II, I/( 7earboo; 1*A-, pp. '@ N '1.

125 G(=:5. %*G11 1*+A- p. %11.

126 /ebanon and Doland, 9;raine and 9r!g!ay respectively. "eeG(=:5. %*G11 1*+A-, pp 2*C, %@2, %22,%@% respectively.127 G(=:5. %*G11 1*+A-, p. %@2.

128 In considering this iss!e the I/( simply referred to it as the logical corollary of its more detailed analysis and proposalregarding existingjus cogens.In fact, only fo!r paragraphs were incl!ded in the final 8eport. )ol. II, I/( 7earboo; 1*++-, p.2+1.1+


17/28

law is in a constant state of evol!tion. This m!st also mean that new norms of jus cogens

may in theory develop.12A

The evol!tion of jus cogens is referred to in the )ienna(onvention in terms of the emergence of new peremptory norms of general internationallaw and is specifically reg!lated by rticle +'

E*e$'e#&e of a #e% e$e*to$" #o$* of 'e#e$al i#te$#atio#al la% (jus cogens)

If a new peremptory norm of general international law emerges, any existing treaty which is inconflict with that norm becomes void and terminates.

It is not intended in this article to analyse in the context of emerging norms, either the differences

between termination and invalidity of legal norms or to determine how and when what was validly

born can become void.12*

:or do we intend to examine if it wo!ld be s!fficient to consider

emerging jus cogensas plainly as one of the cases of termination of treaties. &owever, we will

briefly consider the following 4!estion whether or not it is possible for a new peremptory norm to

constit!te a totally new concept having no lin; with pre>existing peremptory norms or whether, on

the contrary, s!ch a norm is better described as a derogation from an existing peremptory norm.

s disc!ssed there is no legislat!re in the international comm!nity. &ow then can new concepts ofjus cogens be "created#W The I/( pointed o!t that a modification of a r!le ofjus cogens wo!ld to>

day m!st probably be effected thro!gh a general m!ltilateral treaty.1%@

existing peremptory norm as long

as it was accepted and recognised by the international comm!nity as a whole as s!ch.

0ith regard to derogation from an existing peremptory norm it is not so clear. pplication of the

principle e1 injuria non oritur jus means that the contin!o!s violation of an existing r!le of jus

cogens cannot lead, thro!gh s!ch violation, to its modification.1%1&owever, as has been disc!ssed

principles ofjus cogenscan be drawn from both c!stomary international law and treaties. In theory

it is always possible for both a new treaty to derogate from an existing treaty and a new r!le of

c!stomary international law to derogate from an existing r!le, if the will of States so dictates. In

these circ!mstances, by derogation from an existing r!le of jus cogenscontained within c!stom or

treaty!in theory the new r!le, treaty or provision within the treaty- co!ld amo!nt to jus cogens.

gain this wo!ld only arise if either the new treaty or c!stomary r!le is accepted and recognised by

the international comm!nity as a whole as being a r!le ofjus cogens.

In practice however it is most !nli;ely if not impossible that this wo!ld ever arise. This is primarily

beca!se of the very nat!re of these principles of jus cogens.In partic!lar we refer to the fact that

norms ofjus cogensare recognised as being f!ndamental and general in nat!re3 and the fact that

128 6. Da!st, &he eality of -us #ogens!C (onnetic!t 6o!rnal of International /aw 1**1-, A1, at p. A% HIt is s!b$ect tobirth, growth, other change, and death, depending !pon patterns of expectation and behavio!r that are recogniably generallycon$oined in the ongoing social process.

129 )ol. II, I/( 7earboo; 1*++-, p. 2+1 ltho!gh the r!le operates to deprive the treaty of validity, its effect is not torender it void ab initio!b!t only from the date when the new r!le ofjus cogensis established3 in other words it does not ann!l thetreaty, it forbids its f!rther existence and performance.

130 )ol. II, I/( 7earboo; 1*++-, p. 2'A. It is recalled that general treaties indeed all treaties-, are s!b$ect to the r!le pactatertiis and are not bindingerga omnes simply beca!se there is a ma$ority even a large ma$ority- of States that are parties.&owever as has been stated the principles contained in some are nevertheless binding on third parties as a res!lt of c!stomarylaw for example, r!les of the 9: (onvention on the /aw of the Sea related to the maritime areas- b!t even in those cases theyare not necessarily r!les ofjus cogens.

131 The principle that no benefit can be received from an illegal act . "ee!=. /issityn, Benton (onference, p. 11 and ?.S!y, /agonissi (onference, p. 112.

1C


18/28

they only reached this stat!s having first been recognised as a whole as being norms fromwhich no derogation is permitted and which can only be modified by a s!bse4!ent norm ofgeneral international law of the same character. In these circ!mstance it is very !nli;ely inpractice that derogation wo!ld ever occ!r.

(onse4!ently, it is the case that an emerging norm of jus cogenswill probably only ever be

recognised if it ta;es the form of a totally new concept, which is accepted and recognisedby the international comm!nity as a whole.

6. THE INVALIDITY OF TREATIES VIOLATIN9 JUS COGENS

final iss!e to consider in this general analysis is the impact of jus cogenson a treaty which is

considered to be in violation thereof. s norms of jus cogenshave been identified as being normsOaccepted and recognied by the international comm!nity of states as a whole asOnormHs from

which no derogation is permitted it m!st follow that there will be a specific impact on a treaty

which is fo!nd to be in violation of an identified norm. fter considerable debate and disc!ssion atthe I/( it was finally concl!ded that a treaty which conflicts with a peremptory norm of international

law is void if and beca!se its objectis identified as being illegal.1%2

treaty which is void beca!seof s!ch illegality terminates independently of the will of the parties to the treaty > it is considered

invalid ipso jure ab initio.1%%

rticles % and +' of the )ienna (onvention above- therefore provide

as a general principle that a treaty is or becomes void if it conflicts with either an existing

peremptory norm or an emerging peremptory norm, respectively.

&owever, a finding that a treaty is void perhaps many years after it has been entered intowill obvio!sly have an impact on any actsGagreements etc., performed in reliance on its

terms.1%'

5or the following reasons, altho!gh the )ienna (onvention contains a generalprovision reg!lating the conse4!ences of the terminationof a treaty both !nder its ownprovisions or in accordance with the (onvention itself rticle C@- it was decided that

invalidity thro!gh conflict with a peremptory norm merited its own specific provision. TheI/( in partic!lar considered that in relation to n!llity of a pre>existing norm, this was

a special case of n!llity. The 4!estion which arises in conse4!ence of the invalidity is not so m!chone of the ad$!stment of the position of the parties in relation to each other as of the obligation of

each of them to bring its position into conformity with the r!le ofjus cogens.1%

Similarly, it stated that termination by reason ofOconflict with a new r!le of jus cogensOis a

special case of termination.1%+

It stated that the r!les laid down in rticle ++, paragraph 1 Hof the

draft, rticle C@. 1 of the )ienna (onvention are applicable in principle.1%C

&owever, it felt that

132 /a!terpacht spo;e in 1*% abo!t the performance of the treaty )ol. II, I/( 7earboo; 1*%-, p. 1'-35itma!rice stated that it was essential to the validity of a treaty that it sho!ld be in conformity with or not contravene, orthat its e1ecution sho!ld not involve an infraction of principles of jus cogens. )ol. II, I/( 7earboo; 1*A-, p. 2+-30aldoc; referred to a treaty#s object or its e1ecution )ol. II, I/( 7earboo; 1*+%-, p. 2-. In the I/( 8eport to the)ienna (onference it was stated that a treaty is void at the time of its conclusionby reason of the fact that its provisionsare in conflict with an already existing r!le ofjus cogens. "ee!)ol. II, I/( 7earboo; 1*++-, p. 2'A.

133 )ol. II, I/( 7earboo; 1*++-, p. 2++. 5itma!rice believed that a treaty contrary to jus cogensco!ld be applied interpartes, provided that no pre$!dice was ca!sed to third States. The effect wo!ld be the unenforceability of the treaty.)ol. II, I/(7earboo; 1*A-, p. 2A.

134 rticle +*1- of the )ienna (onvention provides, as a general principle with regard to the conse4!ences of theinvalidity of a treaty, that Ha treaty the invalidity of which is established !nder the present (onvention is void. Theprovisions of a void treaty have no legal force.135 )ol. II, I/( 7earboo; 1*++-, p. 2++.

136 )ol. II, I/( 7earboo; 1*++-, p. 2++. It also stated that this was a special case of invalidity since the invalidity does notoperate ab initio.

137 "ee )ol. II, I/( 7earboo; 1*++-, p. 2++ ?mphasis added-.1A


19/28

beca!se the c!rrent rticles % and +' were special cases arising o!t of the application of a r!le of jus

cogens they sho!ld be gro!ped in their own article. It also felt that s!ch a specific article gave

added emphasis to the distinction between the original n!llity of a treaty !nder article @ Hof the draft,article % of the )ienna (onvention and the s!bse4!ent ann!lment of a treaty !nder article +1 Hofthe draft, article +' of the )ienna (onvention O&aving regard to the misconceptions apparent in thecomments of certain Lovernments regarding the possibility of the retroactive operation of these

articles, this additional emphasis on the distinction between the nullifying effect of article M an$ theterminating effect of article NKseemed to the (ommission to be desirable.

1%A

This distinction is very important given the different legal conse4!ences of a finding that a treaty is void

by reason of conflict with either an existing or new peremptory norm. The I/( in partic!lar stressed the

need to emphasise the fact that a treaty validly born m!st be fo!nd to have prod!ced valid

conse4!ences,It is s!ggested that altho!gh s!ch a treaty may terminateas a res!lt of emergingjus

cogens it does not, in o!r view,become oi$! s!ch that it is fo!nd to have been witho!t legal effect.

&owever, it is clear that certain of the legal conse4!ences and the rights and obligations flowing from

the treaty which come into conflict with the new norm cannot be maintained.

The conse4!ences of the invalidity of a treaty conflicting with a peremptory norm arereg!lated by rticle C1 of the )ienna (onvention

Co#e5.e#&e of te i#vali!it" of a t$eat" %i& &o#fli&t %it a e$e*to$" #o$* of 'e#e$ali#te$#atio#al la%

1. In the case of a treaty which is void !nder article % the parties shall

(1) eliminate as far as possible the conse4!ences of any act performed in reliance of any provisionwhich conflicts with the peremptory norm of general international law3 and

(2) bring their m!t!al relations into conformity with the peremptory norm of general international law.

2. In the case of a treaty which becomes void and terminates !nder article +', the termination of the treaty

(1) releases the parties from any obligation f!rther to perform the treaty3(2) does not affect any right, obligation or legal sit!ation of the parties created thro!gh the exec!tion

of the treaty prior to its termination3 provided that those rights, obligations or sit!ations maythereafter be maintained only to the extent that their maintenance is not in itself in conflict withthe new peremptory norm of general international law

s can be seen, the article is two pronged. It reg!lates first, n!llity of a treaty ab initioas beingcontrary to pre>existing peremptory norms a treaty which is void !nder rticle % of the )ienna(onvention- and second, n!llity of a treaty e1 nuncas conflicting with emerging peremptorynorms a treaty which becomes void !nder rticle +' of the )ienna (onvention-. In the case ofthe latter, it is provided that recognition of the new peremptory norm does not render the treaty

invalid ab initio. That is, it is not the case that the emerging jus cogens will have retroactiveeffect N the treatyin 4!estion is still considered to have been valid and to have prod!ced valid

conse4!ences.1%*

&owever, any rightHs obligationHs or legal sit!ationHs may only be

maintained to the extent that their maintenance is not in itself in conflict with the newperemptory norm of general international law.

138 )ol. II, I/( 7earboo; 1*++-, p. 2++ ?mphasis added-.

139 H right, obligation or legal sit!ation valid when it arose is not to be made retroactively invalid3 b!t its further

maintenance after the establishment of a new r!le ofjus cogensis admissible only to the extent that s!ch f!rther maintenance is

not in itself in conflict with that r!le )ol. II, I/( 7earboo; 1*++-, p. 2+C-. H:o!s po!vons dire 4!#il n#existe, P notre

connaisance, pas !n se!l cas o, s!r la base des prescriptions d#!ne 4!elcon4!e rEgle gKnKrale co!t!miEre s!rven!e par la


20/28

s!ite, on ait concl! P la responsabilitK d#!n ?tat po!r !n fait 4!i n#Ktait pas internationalment illicite a! moment o il a KtK

commis. 8. go, apport sur la esponsabilit% International $e l+tat, in "critti sulla esponsabilitC interna=ionalle $egli "tati,

II, 1 1*A+-, p. A@'.

1*


21/28

7. JUS COGENS AND INTERNATIONAL HUMANITARIAN LAW

7.1 I#t$o!.&tio#

The recognition of norms of jus cogens!norms from which any derogation is forbidden, is

partic!larly important in the area of international h!manitarian law. s has been pointed o!t

In the law of warthere was a great need for absol!te norms for the safeg!arding of the minim!m

fairness, orderliness, civiliation and h!manity of warfare and to prevent s!perfl!o!s devastation.1'@

These absol!te norms have been grad!ally identified over the years and it is now thecase that the prohibition of genocide together with certain r!les of internationalh!manitarian law are considered almost !nanimo!sly to be peremptory norms ofinternational law. It is this classification which will now be considered.

7.2 I#te$#atio#al H.*a#ita$ia# La% i# 'e#e$al

It serves to briefly consider the development of international h!manitarian law, to properly placeidentification, if possible, of peremptory norms therein. The term "h!manitarian law# is in fact a relatively

recent one1'1

despite the fact that the concepts formerly referred to as part of the laws of war jus in

bello-- have been recognised for a very long time.1'2

International h!manitarian law as it exists today

broadly incl!des what is now commonly referred to as &ag!e and Leneva law.1'%

t the end of the MIMcent!ry a concerted effort was made on the international plane to codify the laws of war. The &ag!eInternational Deace (onferences held in 1A** and 1*@C had the most important impact and res!lted in,

inter alia!the prom!lgation of The &ag!e (onventions II 1A**- and I) 1*@C-1''

together with those

related to the prohibition of certain weapons. These became ;nown as the laws of The &ag!e.1'

The

laws of Leneva encompass the fo!r Leneva (onventions of 12 !g!st 1*'*1'+

together with the

protocols adopted on 1@ 6!ne 1*CC.1'C

5inally, there is the

140 /. &anni;ainen, Peremptory 8orms 9-us #ogens: in International Law!&elsin;i, 1*AA-, p. 211.

141 L. bi>Saab in &he "pecificities of Humanitarian Law, in (. Swinars;i, ed.-, "tu$ies an$ +ssays on InternationalHumanitarian Law an$ e$ #ross Principles in Honour of -ean Pictet Bartin!s :i$hoff D!blishers, 1*A'-, p. 2+.

142 The concepts are very old. Dredecessors to "modern# h!manitarian law are for example, the Spanish scholastics andthe (atholic (h!rch (o!ncils. F!ring the middle ages, the former developed theories of the bellum justumand the latter thoseprohibiting the slavery of prisoners of war III /ateran (o!ncil, 11C*- or the !se of weapons considered as too lethal and hatef!lfor Lod II /ateran (o!ncil, 11%*-. "ee&. :!ssba!m,0 #oncise History of the Law of 8ationsSpanish ?dition, !ndated-, p.22 original 1*'-.

143 5or a disc!ssion on this 4!estion, seethe 6!dgement by the ppeals (hamber of the I(T7 Drosec!tor v. e$nilFelaliX et al., -u$gement!(ase :o. IT>*+>21>, 2@ 5ebr!ary 2@@1, paras. 1%1 et se(.

144 The &ag!e (onvention II- with respect to the /aws and (!stoms of 0ar on /and and its annex 8eg!lationconcerning the /aws and (!stoms of 0ar on /and. The &ag!e, 2* 6!ly 1A** and The &ag!e (onvention I)- respectingthe /aws and (!stoms of 0ar on /and and its annex 8eg!lation concerning the /aws and (!stoms of 0ar on /and.The &ag!e 1A =ctober 1*@C.

145 It is noted that other reg!lations and conventions are also incl!ded in the laws of The &ag!e.

146 I- Leneva (onvention for the melioration of the (ondition of the 0o!nded and Sic; in rmed 5orces in the 5ield3 II-Leneva (onvention for the melioration of the (ondition of 0o!nded, Sic; and Shipwrec;ed Bembers of rmed 5orces at Sea3III- Leneva (onvention relative to the Treatment of Drisoners of 0ar3 I)- Leneva (onvention relative to the Drotection of(ivilian Dersons in Time of 0ar. In the view of the I(6 the Leneva (onventions are in some respects a development, and inother respects no more than the expression of the f!ndamental general principles of h!manitarian law. The 8icaraguacase,para 21A. The I(8( (ommentary to Leneva (onvention I) states Hthe Leneva (onventions form part of what are generallycalled the laws and c!stoms of war, violations of which are commonly called war crimes. "ee!6. Dictet, ed.-, #ommentary3 I)7enea #onention elatie to the Protection of#iilian Persons in &ime of international rmed (onflicts. These Drotocols have received a

2@


22/28

(onvention on the Drevention and D!nishment of the (rime of Lenocide 1*'A-. ltho!ghit is arg!able that this convention cannot be considered strictu sensuto be part of the "laws

of armed conflicts# it is witho!t do!bt applicable.1'A

This is not least beca!se rticle oneprovides that genocide whether committed in time of peace or in time of war is a crime

!nder international law for which individ!als shall be tried and p!nished.1'*

In 1**+, the I(6 specifically re>affirmed the importance of the place held in internationallaw by r!les of international h!manitarian law. s a general principle, it initially stated

It is !ndo!btedly beca!se a great many r!les of h!manitarian law applicable in armed conflict are so

f!ndamental to the respect of the h!man person and "elementary considerations of h!manity# as the (o!rt

p!t it in its 6!dgment of * pril 1*'* in the #orfu #hannelcase I.#.-. eports K, p. 22-, that The

&ag!e and Leneva (onventions have en$oyed a broad accession. 5!rther these f!ndamental r!les are to

be observed by all States whether or not they have ratified the conventions that contain them, beca!se

they constit!te intransgressible principles of international c!stomary law.1@

(onsidering the history of these r!les and the road to recognition as being f!ndamental to the respect

of the h!man person and "elementary considerations of h!manity,# it mentioned in partic!lar the so>

called de Bartens (la!se contained in the preambles to The &ag!e (onventions of 1A** II- and1*@C I)-.

11It referred to the fact that a modern versionOis to be fo!nd in rticle 1, paragraph 2, of

dditional Drotocol I of 1*CC, which reads as follows "In cases not covered by this Drotocol or by other

international agreements, civilians and combatants remain !nder the protection and a!thority of the

principles of international law derived from established c!stom, from the principles of h!manity and from

the dictates of p!blic conscience.#12

It stated that at a very early stage h!manitarian law prohibited

certain types of weapons either beca!se of their indiscriminate effect on combatants and civilians or

beca!se of the !nnecessary s!ffering ca!sed to combatants, that is to say, a harm greater than that

!navoidable to achieve legitimate military ob$ectives. It referred to the fact that the :!remberg

International Bilitary Trib!nal had already fo!nd in 1*' that the h!manitarian r!les incl!ded in the

8esol!tions annexed to the &ag!e (onvention I) of 1*@C were recognied by all civilied nations and

were regarded as being declaratory of the laws

more limited n!mber of ratifications by comparison to the Leneva (onventions. s of 6an!ary 2@@1, 1CStates are parties to dditional Drotocol I and 1@ States are parties to dditional Drotocol II.148 In his report to the Sec!rity (o!ncil with regard to the establishment of the I(T7, the Secretary Leneral incl!ded in hislist the Lenocide (onvention as comprising part of conventional international h!manitarian law which has beyond do!btbecome part of international c!stomary lawOapplicable in armed conflict. eport of the "ecretary 7eneralpursuant toparagraph of "ecurity #ouncil esolution QMQ 9KE:, 9: Foc. SG2C@', 2 Bay 1**% SecretaryLeneral#s 8eport-, para. %.

149 ?mphasis added.

150 Legality of the &hreat or ;se of 8uclear 2'*.

151 This provides as follows 9ntil a more complete code of the laws of war has been iss!ed, the &igh (ontracting Dartiesdeem it expedient to declare that, in cases not incl!ded in the 8eg!lations adopted by them, the inhabitants and the belligerentsremain !nder the protection and the r!le of the principles of the law of nations, as they res!lt from the !sages establishedamong civilised peoples, from the laws of h!manity, and the dictates of the p!blic conscience. This cla!se was incl!ded in theDreamble of the 1A** &ag!e (onvention II respecting the /aws and (!stoms of 0ar on /and and in the 1*@C &ag!e(onvention I) on the same matter. "ee, in general, . (assese, &he /artens #lause3 Halfa Loaf or simply Pie in the "ky )ol.11, :o. I, ?6I/ 2@@@-, pp. 1AC>21+.

152 The 8uclear


23/28

and c!stoms of war.1%

5inally, it referred to the most recent confirmation on theinternational level of the stat!s which the international comm!nity has accepted sho!ld beaccorded to certain r!les of international h!manitarian law, by referring to the SecretaryLeneral#s 8eport and his remar;s concerning the s!b$ect>matter $!risdiction of the I(T7

In the view of the Secretary>Leneral, the application of the principle nullum crimen sine legere4!ires that

the international trib!nal sho!ld apply r!les of international h!manitarian law which are beyond any do!bt

part of c!stomary lawOThe part of conventional h!manitarian law which has beyond do!bt become partof international c!stomary law is the law applicable in armed conflict as embodied by the Leneva

(onventions of 12 !g!st 1*'* for the Drotection of 0ar )ictims3 the &ag!e (onvention I)- 8especting

the /aws and (!stoms of 0ar on /and and the 8eg!lations annexed thereto of 1A =ctober 1*@C3 the

(onvention on the Drevention and D!nishment of the (rime of Lenocide of * Fecember 1*'*3 and the

(harter of the International Bilitary Trib!nal of A !g!st 1*'.1'

=ne can note the following findings of the I(6 in respect of the Lenocide (onvention

The (onvention was manifestly adopted for a p!rely h!manitarian and civiliing p!rposeO.its ob$ect on

the one hand is to safeg!ard the very existence of certain h!man gro!ps and on the other to confirm and

endorse the most elementary principles of morality. In s!ch a convention the contracting States do not

have any interests of their own3 they merely have, one and all, a common interest, namely, theaccomplishment of those high p!rposes which are the raison $ ?treof the (onvention.

1

There can be little do!bt that as a general r!le the provisions contained in the conventions and

reg!lations referred to above have attained the stat!s of c!stomary international law, while certain

provisions are generally considered to reflect elementary and f!ndamental considerations of

h!manity. The Stat!tes of the I(T7 and I(T8 provide for prosec!tion for violation of the following

c!stomary r!les of international h!manitarian law grave breaches of the Leneva (onventions,

violations of the laws and c!stoms of war, genocide and crimes against h!manity.1+

In the context of this article, it remains to be seen whether or not one may also a!tomatically

elevate these conventions or provisions as a whole to the stat!s of peremptory norms.

7.3 R.le of I#te$#atio#al H.*a#ita$ia# La% %i& &a# /e &laifie! a Jus Cogens

rticle 2 of The &ag!e (onvention I) of 1*@C provides

The provisions contained in the 8eg!lations referred to in rticle 1, as well as in the present(onvention, do not apply except between (ontracting powers, and then only if all the belligerents areparties to the (onvention.

This cla!se, ;nown as the si omnesor general participation cla!se was based on the principle of

reciprocity and was designed to avoid disadvantages in the military balance. It provided that theconvention and annexed reg!lations were not applicable !nless allthe parties to the conflict were

e4!ally bo!nd by their terms. This meant that they wo!ld not even apply between those who were

parties to the convention if there were other belligerents involved who were not.

153 &rial of the /ajor


24/28

The Leneva (onventions on the other hand have been described as reflecting a constantendeavo!r to extend their application to the widest possible circle of States and conflict!alsit!ations, and to red!ce to a minim!m the legal gro!nds for avoiding s!ch anapplication.

1C Daragraph % of common rticle 2 to the fo!r Leneva (onventions

expressly ref!teHs the si omnescla!se1A

and provides as follows

ltho!gh one of the Dowers in conflict may not be a party to the present (onvention, the Dowers who are

parties thereto shall remain bo!nd by it in their m!t!al relations. They shall f!rthermore be bo!nd by the(onvention in relation to the said Dower, if the latter accepts and applies the provisions thereof.

This provision which came over forty years later was a clear and welcome depart!re from the more

limited terms of rticle 2 of the aforementioned &ag!e (onvention. The important difference is the

fact that it provides that the provisions of the fo!r Leneva (onventions will remain applicable as

between the parties even if one of the belligerents in a conflict is not a party to them.1*

&owever,

the provision remains limited largely beca!se the principle of reciprocity is preserved. s a res!lt,

hypothetically and based on the express terms of the provisions, if a power involved in a partic!lar

conflict who is not a party to the Leneva (onventions neither formally accepts to be bo!nd by their

provisions for example, by way of a formal or explicit declaration-, nor even to apply its provisions

for example, by in practice accepting their terms-, the Leneva (onventions will not on the face ofit apply to govern actions committed by them.

1+@

Fespite this very hypothetical scenario we m!st recall what has been described as the overallh!manitarian aim of the Leneva (onventions. Indeed the ppeals (hamber for the I(T7 recentlydescribed the ob$ect and p!rpose of the Leneva (onventions as being to g!arantee the protectionof certain f!ndamental val!es common to man;ind in times of armed conflict while describing the

conventions as f!ndamental h!manitarian conventions.1+1

This h!manitarian ob$ect and p!rpose

is partic!larly reflected within certain provisions. ?xamples are the prohibition against the ta;ing of

reprisals1+2

and the prohibition on each party preventing them absolving themselves of any liability

inc!rred in respect of the grave breaches provisions.1+%

f!rther example is the specific

protection offered to the category of persons defined by the conventions as protected persons.The conventions provide that these persons may in no circ!mstances reno!nce in part or in

entirety the rights sec!red to them by the conventions or by special agreements.1+'

In addition,

the conventions expressly prohibit agreements inter partes which co!ld adversely affect the

sit!ation of Hprotected personsO, nor restrict the rights which Hthey conferH !pon them.1+

5!rther protection is g!aranteed by rticle +@- of the )ienna (onvention which reads as follows

157 L. bi>Saab in &he "pecificities of Humanitarian Law, in (. Swinars;i, ed.-, "tu$ies an$ +ssays on InternationalHumanitarian Law an$ e$ #ross Principles in Honour of -ean Pictet Bartin!s :i$hoff D!blishers, 1*A'-, p. 2+C footnoteommitted-.

158 L. bi>Saab in &he "pecificities of Humanitarian Law, in (. Swinars;i, ed.-, "tu$ies an$ +ssays on InternationalHumanitarian Law an$ e$ #ross Principles in Honour of -ean Pictet Bartin!s :i$hoff D!blishers, 1*A'-, p. 2+C.

159 rticle 1 of the fo!r Leneva (onventions provides The &igh (ontracting Darties !nderta;e to respect and to ens!rerespect for the present (onvention in all circ!mstances. That is they !nderta;e to ens!re respect regardless of considerationsof reciprocity.

160 0e state hypothetically as this analysis is of co!rse p!rely theoretical. This is beca!se as has been seen almost allmembers of the 9nited :ations are parties to the conventions. It is also beca!se many of the terms of the conventions in anyevent are considered to constit!te c!stomary international law. "ee6!dgement by the ppeals (hamber of the I(T7 in TheDrosec!tor v. e$nil FelaliX et al., -u$gement!(ase :o. IT>*+>21>, 2@ 5ebr!ary 2@@1, paras. 112 N 11%.

161 The Drosec!tor v. e$nil FelaliX et al., -u$gement!(ase :o. IT>*+>21>, 2@ 5ebr!ary 2@@1, para. 11%.

162 5or example, rticle '+ (onvention I- provides 8eprisals against the wo!nded, sic;, personnel, b!ildings ore4!ipment protected by the (onvention are prohibited. "eealso, rticles 'C (onvention II-, 1% (onvention III- and

33(onvention I)- and 2@ and 1 to + of dditional Drotocol 1.163 (ommon rticles 1(onvention I-, 2 (onvention II-, 1%1 (onvention III- and 1'A (onvention I)-.

164 (ommon rticles C (onventions I, II, III- and A (onvention I)-.

165 (ommon rticles + (onventions I, II, III- and C (onvention I)-.2%


25/28

Daragraphs 1 to % Hon the conditions of termination or s!spension of treaties as a conse4!ence oftheir breach do not apply to provisions relating to the protection of the h!man person containedin treaties of a h!manitarian character, in partic!lar to provisions prohibiting any form of reprisalsagainst persons protected by s!ch treaties.

This general cla!se applies to all treaties.

:evertheless, it is s!ggested that the protection offered by the conventions and the aboveprovisions is technically not absol!te. This is beca!se, within the terms of each conventionthere is provision for States to avoid application of their terms thro!gh den!nciation. ltho!gh itis also provided that s!ch den!nciation shall not ta;e effect !ntil peace has been concl!ded,and !ntil after operations connected with the release and repatriation of the persons protectedby the present (onvention have been terminated and that den!nciation shall in no wayimpair the obligations which the Darties to the conflict shall remain bo!nd to f!lfil by virt!e ofthe principles of the law of nations, as they res!lt from the !sages established among civilised

peoples, from the laws of h!manity and the dictates of the p!blic conscience,1++

nevertheless,the fact remains that den!nciation of the conventions is possible. Similarly both the Leneva(onventions and the Lenocide (onvention can be s!b$ect to reservations, provided that these

reservations do not go against the ob$ect and p!rpose of the treaties.1+C

The 4!estion arises

as to how treaties, which can in theory be deno!nced1+A

and may in theory be s!b$ect toreservations can be considered as a whole asjuscogensW

=ne a!thor has stated the following

n!mber of factors in the 1*'* Leneva (onventions ma;e them appearparticularly to satisfycriteria $rawnfrom the perspectie of jus cogens3

1- Bany provisions stip!late the protection of persons in absol!te terms. ?ach(onvention contains a provision prohibiting reprisals against the persons protected

by the (onvention. The provision in (onvention I) does this only in a limited scale.

2- The (onventions prohibit the concl!sion of special agreements which wo!ld adversely affectthe sit!ation of protected persons or wo!ld restrict their rights as defined by the (onventions.Th!s, derogations by treaties inter sewhich wo!ld have adverse effects are prohibited.

3- The (onventions deny the validity of any ren!nciations of their rights by protectedthe persons.

4- The (onventions single o!t the grossest violations as "grave breaches#, and prohibitthe parties from absolving any other party of any liability inc!rred in respect of the"grave breaches. There is a strong pres!mption that at least the prohibitions of the"grave breaches# of the (onventions are peremptory.

5- The (onventions have received a nearly !niversal degree of ratification.1+*

ltho!gh it has been s!ggested that there is a strong pres!mption that at least the "grave breaches#provisions of the fo!r Leneva (onventions have gained peremptory stat!s it has also been

ac;nowledged that many of the norms contained within the conventions do not f!lfil the criteria

166 (ommon rticles +%(onvention I-, +2 (onvention II-, 1'2 (onvention III-, 1A (onvention I)- and**.1 of Drotocol 1. The p!rpose of these dispositions is to maintain the protected persons within the sameparameters !ntil the concl!sion of military operations and in the case of civilians, !ntil their release,repatriation and re>establishment. rticle 1A, Leneva (onvention I).

167 eserations to the #onention on the Preention an$ Punishment of the #rime of 7enoci$e3 0$isory Opinion! 2ABay 1*1, in I(6 8eports 1*1-, pp. 1 et se(.lso rticle 1* c- of the )ienna (onvention. It is the case that they havealready been s!b$ect to several.

168 In the 8uclear +

footnote omitted-.2'


26/28

which are necessary for s!ch a norm to be considered as jus cogens.1C@

as a norm from which no derogation is permitted.1C1

It is as a res!lt rather diffic!lt toidentify specific norms within treaties which are peremptory in nat!re !nless they are verygeneral. This applies e4!ally in the identification of norms of jus cogens in the area of

international h!manitarian law and in partic!lar, with regard to this analysis, to the fo!rLeneva (onventions of 1*'* and the Lenocide (onvention of 1*'A.

0ith regard to the fo!r Leneva (onventions of 1*'* it is s!ggested that it can only be said that the

principles and prohibitions !nderlying paragraphs 1- and 2- of common rticle % are truly

peremptory in nat!re. Those other provisions in, for example the Leneva (onventions and the

dditional Drotocols together with other instr!ments in international h!manitarian law- which

reflect the principles contained within common rticle % can also be considered peremptory in

nat!re. (ommon rticle % is general in nat!re, it lays down the elementary considerations of

h!manity described by the I(6 which derive from established c!stom, from the principles of

h!manity and from the dictates of p!blic conscience. (ommon rticle % reads as follows

H?ach party to the conflict shall be bo!nd to apply, as a minim!m, the followingprovisions

(1) Dersons ta;ing no active part in the hostilities, incl!ding members of armedforces who have laid down their arms and those placed hors $e combat bysic;ness, wo!nds, detention or any other ca!se, shall in all circ!mstances betreated h!manely, witho!t any adverse distinction fo!nded on race, colo!r,religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and inany place whatsoever with respect to the above>mentioned persons

(1) violence to life and person, in partic!lar m!rder of all ;inds, m!tilation,cr!el treatment and tort!re3H

1C2

(2) ta;ing of hostages3

(3) o!trages !pon personal dignity, in partic!lar h!miliating and degradingtreatment3

(4) the passing of sentences and the carrying o!t of exec!tions witho!t previo!s$!dgment prono!nced by a reg!larly constit!ted co!rt, affording all the $!dicial

g!arantees which are recognied as indispensable by civilied peoples.

(2) The wo!nded and sic; shall be collected and cared for.

ltho!gh common rticle % refers to Hconflicts not of an international character it is now generally

accepted that its terms are applicable in sit!ations of both internal and international armed

conflicts. The I(8( (ommentary to common rticle % of Leneva (onventions I) stated inter alia!

that Othe ob$ect of the (onvention is a p!rely h!manitarian oneOand that it merely ens!res

respect for the few essential r!les of h!manity which all civilised nations consider as valideverywhere and !nder all circ!mstances and as being above and o!tside war itself.

1C% In the

commentary to each Leneva (onvention, it stated that it HrepresentHsOthe minim!m which m!st

be applied in the least determinate of conflicts, its terms m!st a fortioribe respected in the case of

if limited. /. &anni;ainen, Peremptory 8orms 9-us #ogens : in International Law, &elsin;i, 1*AA-, p. +@+.

171 rticle % of the )ienna (onvention.

172 It is recalled that for example with regard to 1-a-, a recent decision by a Trial (hamber of the I(T7 confirmed that theprohibition against tort!re in both times of peace and d!ring an armed conflict constit!tes a norm of jus cogens which istherefore non>derogable. "eeThe Drosec!tor v. Fragol$!b J!narac et al., -u$gement!(ase :o. IT>*+>2%>T Y IT>*+>2%G1>T, 225ebr!ary 2@@1, para. '++. lso, The Drosec!tor v. e$nil FelaliX et al., -u$gement!(ase :o. IT>*+>21>T, 1+ :ovember 1**A,para. '' and references therein. lso, T. Beron, International #riminali=ation of Internal0trocities! A* 6I/ 1**-, p. ', at p.C1.

173 I(8

Documents

Writing Colombia Eng