Codification

· Most members of int’l community prefer treaties to custom (more certain, arise from negotiations).

· 1960s to 80s – states thought it would be a good idea to codify the law by a treaty-making process

· Traditional and classical areas of codification – Draft Treaties done by UN Int’l Law Commission and then discussed by the Sixth Committee of GA

o law of the sea, diplomatic and consular immunities, law of treaties, state succession, state responsibility

· Areas where existing law in need of radical change, technical approach of going through ILC abandoned in favour of direct state-to-state negotiation and discussion (e.g. law of sea)

o Special Committee set up to report to GA

o If matter too controversial, adopt a declaration instead

Possible effects of codification treaties:

· Declaratory effect – simply codify or restate an existing customary rule

o Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ – Art. 60 of Vienna Convention on law of treaties was merely declaratory of existing law

· Crystallizing effect – bring to maturity an emerging customary rule, a rule still in its formative stages

o North Continental Shelf Cases, ICJ – with regard to Art. 1 and 3 on the Convention on the Continental Shelf

· Generating effect – treaty provision creating new law sets in motion a process whereby it gradually brings about or contributes to formation of a corresponding customary rule

o North Continental Shelf Cases, ICJ – Ct said it was legally admissible for a treaty provision, only conventional or contractual in origin, to become part of corpus of int’l law and be accepted by such as opinio juris

All this of may also happen re texts other than treaties (e.g. resolutions or Declarations of UN GA).

6.5 The introduction of jus cogens in the 1960s

6.5.1 The emergence of jus cogens

· 1960s – upgrading of certain fundamental rules produced by traditional sources of law

· Socialist and developing countries claimed that certain norms governing relations between states should be given a higher status and rank than ordinary rules deriving from treaties and custom а jus cogens.

o Examples – self-determination of peoples, prohibition of aggression, genocide, slavery, racial discrimination, racial segregation, apartheid.

Why advocate jus cogens?

· Developing countries: it was another way of fighting colonial powers.

· Socialist countries: such peremptory rules presented the hard core of those int’l principles which, by proclaiming peaceful existence of states, permitted and safeguarded smooth relations between states having different economic and social structures. It was a political means of setting in stone the rules of the game between East and West.

· Western countries: didn’t like this at all. In the end they acquiesced, having ensured that there was some mechanism for judicial determination of peremptory norms.

Introduction of this concept translated some of the positive law concepts from 17th and 18th century (one of the three bodies of law these scholars described was natural law, regulating life of mankind, laws derived from reason and humanity, necessary, prevailed over treaties).

6.5.2 Establishment and content of peremptory norms

Jus cogens was accepted but on condition that any state invoking it be prepared to submit its determination to ICJ.

Vienna Convention on Law of Treaties 1969 & 1986, Art. 53 – Defn of Peremptory Norm:

Ш “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.”

(and fact that a treaty which violates a peremptory norm is void)

Jimenez de Arechaga says this is backwards:

· This description of jus cogens fails to apprehend its real essence, since the definition is based on the legal effects of a rule and not on its intrinsic nature; it is not that certain rules are rules of jus cogens because no derogation from them is permitted; rather no derogation is allowed because they possess the nature of rules of jus cogens.

Art. 66(a) allows for resort to the Court in the event of disputes on the actual content of jus cogens.

· A peremptory norm can only take shape if the most important and representative states from various areas of world consent to it. Ultimately rests on the consent or acquiescence of majority of members of world community.

· BUT it is difficult for a state to oppose the formation of a peremptory norm – due to political, diplomatic, psychological factors which dissuade states from criticizing values that most other states hold dear.

Impact of jus cogens concept should not be over-stated.

· Nevertheless, clear agreement has emerged that certain rules indisputably belong to jus cogens.

· Norms “so essential for the protection of fundamental interests of international community that their breach was recognized as a crime by that community as a whole” – in draft ILC State Responsibility articles.

o e.g. colonialism, slavery, genocide, apartheid, massive pollution of atmosphere or seas, prohibition of threat or use of force, fundamental human rights, racial discrimination, torture, self-determination, fundamental principles of humanitarian law (ICTY in Kupreskic agreed with this last one)

а All these jus cogens norms impose community obligations and by the same token confer community rights.

6.5.3 Limitations of jus cogens as envisaged in the Vienna Convention

· Major limitation – they may only be invoked by a state that is both a party to the Vienna Convention and party to the bilateral or multilateral treaty it intended to have declared contrary to jus cogens.

· An outsider to treaty in question (or not party to Treaty Convention) cannot invoke art. 53 and 64.

· Therefore jus cogens has limited practical application – a potential rather than actual rule.

6.5.4 Partial remedies to those limitations, provided by customary international law

However, this defect (6.5.3) mitigated by:

· Customary rules on invalidity of treaties

· Gradual emergence of a customary rule on peremptory law

· Customary rules on invalidity: Any state directly affected by a treaty contrary to a peremptory norm of int’l law, whether or not party to the treaty, may invoke the invalidity of the treaty.

· Customary rule on jus cogens operates with regard to states that are not party to Vienna Convention

· A customary norm has evolved to the effect that certain rules of int’l law (created either by custom or by multilateral treaties) possess special legal force – capacity to prohibit any contrary norms and squash those made in spite of this prohibition.

6.5.5 The effects of jus cogens

Typical effect of peremptory norm is that, as States cannot derogate from them through treaties or customary rules, the treaty or customary rules contrary to jus cogens are null and void.

But you don’t have to go as far as invalidity.

· A court may simply disregard or declare null and void a single treaty provision that is contrary to jus cogens, if the remaining provisions are not tainted with the same legal invalidity.

· A court could also read a treaty provision in such a way that it is consistent with jus cogens, rather than against it.

Other effects of peremptory norms / jus cogens

· can be a deterrent – they can signal to all states and individuals that there absolute values which no one can deviate from.

· may affect recognition of states – whenever an entity with all the hallmarks of statehood comes into being through aggression, denial of rights of minorities, apartheid, etc., other states are legally bound to withhold recognition.

· a state may be unable to enter a reservation to a treaty that is contrary to peremptory norms (according to UN Human Rights Committee, 1994).

· Possible violation of a peremptory norm (torture, racial persecution, e.g.) could prevent a state from complying with an extradition treaty, if it is known they would be extraditing an individual to that fate (according to Swiss Courts).

· may strip state immunity from jurisdiction of foreign states – a state is not entitled to immunity from any act that contravenes a jus cogens norm, regardless of where or against whom the act was perpetrated.

· may de-legitimize any legislative or administrative act which authorizes conduct against jus cogens at international level. National measures may not be accorded legal recognition by other states (according to Spanish Courts and ICTY).

· States may acquire universal criminal jurisdiction over the alleged authors of acts which violate peremptory norms (according to ICTY, Belgium, House of Lords in Pinochet).

6.5.6 Deficiencies and merits of jus cogens

· Jus cogens has only been invoked in states’ pronouncements, in obiter dicta in int’l arbitral or judicial bodies, and in declarations of UN bodies.

· It has not been relied upon in legal disagreements between states, or by int’l courts in settling int’l disputes.

· It has not yet been used to invalidate a treaty provision.

· ICJ has carefully avoided pronouncing on jus cogens in anything more than elusive language.

· [They have been invoked by some states at a domestic level.]

Why? B/c peremptory norms primarily have a deterrent effect.

At an international level, they remain a potential legal tool rather than an actual one.

· Why? B/c states act out of self-interest, they are prepared to challenge a treaty on basis of jus cogens only to the extent that it serves their interests. They are not interests in ‘public interests’ of global community.

· BUT peremptory norms probably do play a role in guiding and channelling conduct of states.

· Jus cogens may be less about policing state behaviour than about setting standards and norms which states then internalize, helping to prevent violations of those norms.

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