Peremptory Norms of General International Law (Jus Cogens) Disquisitions and Disputations (Developments in International Law, 75) 9004464115, 9789004464117

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Peremptory Norms of General International Law (Jus Cogens)

Developments in International Law volume 75

The titles published in this series are listed at brill.com/​diil

Peremptory Norms of General International Law (Jus Cogens) Disquisitions and Disputations Edited by

Dire Tladi

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Tladi, Dire, author. Title: Peremptory norms of general international law (jus cogens) : disquisitions and disputations / edited by Dire Tladi. Description: Leiden; Boston : Brill, 2021. | Series: Developments in international law, 0924-5332 ; volume 75 | Includes index. | Summary: “Peremptory Norms of General International Law ( Jus Cogens): Disquisitions and Dispositions brings together an impressive collection of authors addressing both conceptual issues and challenges relating to peremptory norms of general international. Covered themes in the edited collection include concepts relating to the identification of peremptory norms, consequences of peremptory norms, critiques of peremptory norms, the relationship between peremptory norms and particular areas of international law as well as the peremptory status of particular norms of international law. The contributions are drawn from an array of scholars and experts with different perspective, thus providing an interesting mosaic of thoughts on peremptory norms. Written against the backdrop of the ongoing work of the International Law Commission, it exposes some tensions inherent in jus cogens.” – Provided by publisher. Identifiers: lccn 2021024020 | isbn 9789004464117 (hardback) | isbn 9789004464124 (ebook) Subjects: lcsh: Jus cogens (International law) Classification: lcc KZ1261 .T53 2021 | ddc 341/.1–dc23 lc record available at https://lccn.loc.gov/2021024020

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 0924-​5 332 isbn 978-​9 0-​0 4-​4 6411-​7 (hardback) isbn 978-​9 0-​0 4-​4 6412-​4 (e-​book) Copyright 2021 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau Verlag and V&R Unipress. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents  Acknowledgements ix Notes on Editor and Contributors x 1  Disquisitions and Disputations 1 Dire Tladi

part 1 Conceptual Issues 2  Peremptory Norms as a Legal Technique Rather than Substantive Super-Norms 21 Robert Kolb 3  Peremptory Norms of General International Law (Jus Cogens) and the Fundamental Values of the International Community 44 Patrícia Galvão Teles 4  Jus Cogens and the International Community “of States” as a Whole 68 Jean Allain 5  Modification of Peremptory Norms of General International Law 92 Mehrdad Payandeh 6  Peremptory Norms and Interpretation in International Law 132 Sâ Benjamin Traoré 7  Aspects of the Invalidity of Treaties on Account of Conflict with Jus Cogens 177 Gentian Zyberi 8  Jus Cogens’ Preferred Sister: Obligations Erga Omnes and the International Court of Justice –​Fifty Years after the Barcelona Traction Case 193 Martha M Bradley

vi Contents 9  Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission 227 Helmut Philipp Aust

part 2 Institutions and Peremptory Norms 10  African State Practice and the Formation of Some Peremptory Norms of General International Law 259 Tiyanjana Maluwa 11  Is There Any Regional Jus Cogens in Europe? The Case of the European Convention on Human Rights 302 Pavel Šturma 12  The Treatment of Peremptory Norms of General International Law (Jus Cogens) in the Inter-​American Human Rights System 319 Juan José Ruda Santolaria 13  Jus Cogens and (In)Application of the 1969 Vienna Convention on the Law of Treaties in the Jurisprudence of the International Court of Justice 342 Catherine Maia 14  The Unilateral Invocation of Jus Cogens Norms 366 Michael Wood 15  Is the Right to Self-​Determination Jus Cogens: Reflections on the Chagos Advisory Opinion 386 Julia Sebutinde 16  Jus Cogens and Compensation 413 Rosalind Elphick with John Dugard 17  Peremptory Norms and Resolutions of the United Nations Security Council 441 Daniel Costelloe

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part 3 Particular Rules and Sets of Rules 18  “Magic” or Smoke and Mirrors? The Gendered Illusion of Jus Cogens 471 Mary H. Hansel 19  Ending the Splendid Isolation—Jus Cogens and International Economic Law 509 Makane Moïse Mbengue and Apollin Koagne Zouapet 20  Environmental Protection as a Peremptory Norm of General International Law: Is It Time? 575 Nilufer Oral 21  The Prohibition of Terrorism as Jus Cogens 600 Aniel de Beer 22  The Jus Cogens Status of the Prohibition on the Use of Force: What Is Its Scope and Why Does It Matter? 629 Olivier Corten and Vaios Koutroulis 23  The Friendly Relations Declaration and Peremptory Norms 668 Jorge E. Viñuales 24  The Right to Self-​Determination and Peremptory Norms 689 Ki-​Gab Park 25  Sovereign Equality as a Peremptory Norm of General International Law 713 Hannah Woolaver 26  A Jus Cogens Human Rights Exception to Head of State Immunity: Fact, Fiction or Wishful Thinking? 740 Kobina Egyir Daniel  Index 785

Acknowledgements Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations was prepared under the SARChI Chair on International Constitutional Law at the University of Pretoria. The strength of this volume is the diversity of the contributors and the quality of the chapters. I am grateful to all the authors for their commitment to the project. It is a rare feat for a book with such high-​profile contributors with busy schedules to be published in less than two years from the time of conception. This was made possible by the timely submission of chapters and revisions. I wish to say a special thank you to five young women who worked with me at different times during this book project. Moyahabo Thoka, Karem Luisa Cárdenas Ynfanzón, Cora Wright, Shubhangi Agarwalla and Yasmine Luhandjula. It is because of their tireless commitment that the book was completed in such a short space of time. I am particularly thankful to Moya and Ms Matwa for taking up all the administrative responsibilities in the early stages of the book project. Although the book is not about the work of the International Law Commission, no doubt the ilc’s Draft Conclusions on Peremptory Norms adopted on first reading played a significant role in the conception of the book and in the writing of at least some of the chapters. I should therefore also express my gratitude to the colleagues on the International Law Commission for placing the topic on the agenda, appointing me Special Rapporteur and for their contribution to the work on the topic. I am thankful to Brill and in particular, Marie Sheldon and Kelley Baylis and the production team, with whom I have worked very closely on this project. In the course of the production of this book, a giant of international human rights law, a mentor, a colleague and a friend, Christof Heyns passed away. I thank him for all that he has done for me, and the way that he has touched my life. As always, I dedicate this book to all those that I love. Dire Tladi 2021

Notes on Editor and Contributors Editor Dire Tladi is Professor of International Law and dst/​n rf South Research Chair in International Constitutional Law at the University of Pretoria. He is a member of the Department of Public Law and a Fellow of the Institute of Comparative and International Law in Africa (University of Pretoria). He is a member of the UN International Law Commission and its Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens). He is also a member of the Institut de Droit International. Contributors Jean Allain is a Professor of International Law and Associated Dean (Research) at the Faculty of Law, Monash University. He is also a Professor of International Law at the Wilberforce Institute, University of Hull. Helmut Philipp Aust is a Professor of International Law at the Freie Universität Berlin. He is also Co-​ Chair of the International Law Association Study Group on “The Role of Cities in International Law”. Aniel de Beer is an Extraordinary Lecturer in the Department of Public of Public Law at the University of Pretoria. Martha M Bradley is a Lecture in the Department of Public Law at the University of Pretoria. Olivier Corten is an Ordinary Professor at the International Law Centre of the Université libre de Bruxelles (ulb) and member of the Institute of International Law.

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Daniel Costelloe is Counsel at the Litigation Department at Wilmerhale and a member of the International Practice. Kobina Egyir Daniel is a Senior Operations Officer and Regional Lead at the International Finance Corporation, and Senior Researcher at the South African Research Chair in International Constitutional Law at the University of Pretoria. John Dugard is Emeritus Professor at the University of Leiden, former member of the UN International Law Commission and member of the Institut de Droit International. Rosalind Elphick is Legal Adviser at the Iran-​US Claims Tribunal. Mary H. Hansel is a Lecturer and Acting Director of the International Justice Clinic at the University of California Irvine. Robert Kolb is a Professor of International Law at the Law Faculty of the University of Geneva. Vaios Koutroulis is a Professor at the International Law Centre of the Université libre de Bruxelles (ulb). Catherine Maia is a Professor of Public International Law at the Lusófona University of Porto and Visiting Professor at Sciences Po Paris and the Catholic University of Lille. Tiyanjana Maluwa holds the H Laddie Montague Chair in Law at the Pennsylvania State University School of Law. He is also Emeritus Director of the Penn State School of International Affairs.

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Notes on Editor and Contributors

Makane Moïse Mbengue is a Professor of International Law at the Faculty of Law at the University of Geneva and Director of the Department of International Law and International Organisation. He is also an Affiliate Professor at Sciences Po Paris. Nilufer Oral is Director of the Centre for International Law at the University of Singapore. She is also a member of the UN International Law Commission. Mehrdad Payandeh holds the Chair for International Law, European Law and Public Law at Bucerius Law School. He is also a member of the Committe on the Elimination of Racial Discrimination. Ki-​Gab Park is a Professor of International Law, Korea University. He is also a member of the UN International Law Commission. Juan José Ruda Santolaria is Professor at the Faculty of Law of the Pontificia Universidad Católica del Perú and a member of the UN International Law Commission. He is also the Legal Adviser of the Foreign Minister of Peru. Julia Sebutinde is a Judge of the International Court of Justice. Pavel Šturma is head of the Department of International Law, Charles University, Faculty of Law (Prague), senior research fellow, Institute of Law of the Czech Academy of Sciences, and member, UN International Law Commission (Geneva). Patrícia Galvão Teles is a Professor of International Law at the Autonomous University of Lisbon and Senior Consultant at the Legal Department of the Portuguese Ministry of Foreign Affairs. She is a member of the UN International Law Commission and of the Permanent Court of Arbitration.

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Sâ Benjamin Traoré is a Postdoctoral Fellow and Project Manager at the Centre for Human Rights of the University of Pretoria. Jorge E. Viñuales is Harold Samuel Professor, University of Cambridge, Associé, Institut de Droit International. Michael Wood is a Barrister at Twenty Essex Chambers, London. He is a member of the UN International Law Commission. Hannah Woolaver is Associate Professor in International Law at the Department of Public Law of the University of Cape Town. Apollin Koagne Zouapet is a Judicial Fellow at the International Court of Justice and an Associate Researcher at the International Law Department of the International Relations Institute of Cameroon. Gentian Zyberi is a Professor in the Norwegian Centre for Human Rights, at the University of Oslo. He is also a member of the UN Human Rights Committee.

Chapter 1

Disquisitions and Disputations Dire Tladi 1

Introduction

In the summer of 2019, the International Law Commission adopted, on first reading, a complete set of Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens)1 –​a topic over which there have been many disquisitions. The 2019 Draft Conclusions were adopted after a five-​year period of intense disputations within the Commission and the Sixth Committee of the General Assembly. While many of the provisions were not contested, several issues in the proposals attracted fierce debate and disagreement within the Commission (and also beyond the Commission). The so-​called characteristics of peremptory norms –​i.e. the notion that peremptory norms reflect and protect the fundamental values of the international community, are universally applicable and hierarchically superior –​attracted particularly strong reactions from a few members of the Commission (but equally strong support from the vast majority of the member of the Commission). But there were other issues that caused disagreement: to refer or not to Security Council decisions as an example of obligations invalidated by jus cogens; to qualify or not the erga omnes consequences of jus cogens by the word serious; to provide or not an illustrative or non-​exhaustive list of jus cogens norms; and the question of a decision-​making procedure in the event of a dispute. These were some of the other issues on which agreement was not easy. The purpose of this volume is not to discuss the Draft Conclusions. These Draft Conclusions are, after all, not final. Rather, the purpose of this collection is to provide a mosaic, using different views and approaches, of the debates and issues concerning peremptory norms of general international law (jus cogens). This mosaic, of course, is created against the backdrop of the Draft Conclusions, so that many of the chapters rely substantially on the Draft Conclusions. At the centre, however, is not the Draft Conclusions, but rather doctrinal and practical issues surrounding jus cogens, which together will 1 The Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the international Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_002

2 Tladi hopefully present a complete picture of the landscape of the law on peremptory norms. The image that emerges is that of a car that is beginning to leave the garage, but whose destination is yet to be determined. 2

Diversity in the Profile of Contributors

The contributors to the volume are drawn from widely divergent backgrounds to make for a colourful and inclusive mosaic. All the contributors have particular experience in the subject-​matter of the volume. The collection of authors is intended to put on display the variety of doctrinal views on jus cogens. Indeed, some of the authors were approached not only because of their proven expertise but also because they hold views contrary to those expressed in the Special Rapporteur reports that I prepared in the period that the Commission has considered the topic. For some, like Robert Kolb, years of writing on the subject has revealed a distinctly different approach to the approach adopted by the Special Rapporteur and, ultimately, by the Commission. Others, in particular Michael Wood, have expressed their (contrary) views in the course of the debates in the Commission, not only on the topic of jus cogens, but in other related topics –​Sir Michael and I have rarely been on the same side of a debate in the Commission. Others, like Mary Hansel, have expressed their very strong opposition (and this is an understatement!) over several private conversations in California. I had the pleasure of supervising Kobina Daniel and through that process got acquainted with his strongly opposed views. The reader should, therefore, not expect from this mosaic a uniformity of views. The diversity in the contributors is reflected in other ways. There is a diversity of backgrounds. Members of the Commission –​in addition to Michael Wood-Patrícia Galvão Teles, Nilufer Oral, Pavel Šturma, Ki-​Gab Park and Juan José Ruda Santolaria –​have been able to share insights from the internal workings of the Commission. But contributors have also come from practitioners, like Rosalind Elphick and Daniel Costelloe, and academics, like Makane Moïse Mbengue, Martha Bradley, Šturma, Park, Mehrdad Payandeh, Gentian Zyberi, Oral, Galvão Teles, Jorge Viñuales, Helmut Aust, Hannah Woolaver, Tiyanjana Maluwa, Olivier Corten and Vaios Koutroulis and Catherine Aiam. There are also contributions from judges –​John Dugard and Julia Sebutinde. There has also been a conscious effort at ensuring diversity in the regional distribution of the authors. With contributors from every UN region –​Africa, Western Europe and Others Group, Latin-​America and the Caribbean, Eastern Europe and Asia.

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There is also “generational” diversity in the profiles of the contributors. Dugard, Kolb, Jean Allain, Maluwa, and Wood represent the established voices –​the old-​guard so to speak. But there are also new voices. Daniel, Mary Hansel, Bradley, Traore, Costelloe, Apollin Koagne Zouapet and Aniel de Beer represent new and fresh voices that are gearing to shape international law for years to come. It is through this diversity that the contestations surrounding peremptory norms are presented, creating a mosaic of international law relating to peremptory norms. The issues surrounding peremptory norms are too complex for a one-​dimensional approach. Diversity is essential and this volume attempts to bring that to the fore. 3

Overview of the Chapters

In this section I provide an overview of the chapters of this volume. There is much in the individual chapters that I agree with. There is also much that I disagree with (sometimes strongly). This section will not provide any analysis or critique of the individual chapters. The purpose simply is to guide the reader through the rich mosaic of chapters that make up this volume, in as neutral a fashion as possible. The volume consists of three Parts. Part 1 is dedicated to conceptual issues. Part 2 tackles institutions and peremptory norms and Part 3 looks at particular rules and sets of rules of (potential) peremptory character. True of any mosaic, there is a cross-​fertalisation of issues across the different parts. For example, at least two Chapters in Part 1 (Zyberi and Traore) touch on dispute settlement, a topic for Part 2. Moreover, several of the chapters in Parts 1 (Kolb, Payandeh, and Bradley) and 2 (Maluwa, Maia and Sebutinde) share perspectives on particular rules of jus cogens. Finally, in many ways, all the chapters, including those in Parts 2 and 3, are grounded in some of the conceptual difficulties and challenges that confront peremptory norms of general international law. For example Šturma’s evaluation of the arguments in favour of regional jus cogens, necessarily involves a foray into conceptual issues. In his chapter, titled “Peremptory Norms as a Legal Technique rather than Substantive Super-​Norms”, Kolb explains and justifies his theory of jus cogens as a technique of non-​derogability. The Chapter, which captures much of Kolb’s earlier writing,2 is a critique of what Kolb refers to as the “dominant 2 See, e.g. Robert Kolb Peremptory International Law Jus Cogens: A General Inventory (Hart, 2015).

4 Tladi approach”, which is reflected in the ilc Draft Conclusions, jurisprudence of the International Court of Justice, statements by virtually all States and jurisprudence of all domestic courts. In contrast to this dominant approach, Kolb posits that there are different types of jus cogens, and that the public order jus cogens of the type provided for in the work of the ilc is not the only type of jus cogens. He identifies two other types of jus cogens norms, namely the public utility jus cogens and the logical jus cogens. The former seems to include any rule designated as non-​derogable in an instrument while the latter covers such rules as pacta sunt servanda and good faith. While Kolb’s Chapter criticises the “dominant” view of jus cogens for its “occultation”, the excess flowing from its hierarchy theory and its uncertainty, it also accepts public order jus cogens as “a type” of jus cogens –​just not the only type. The Chapter by Patrícia Galvão Teles, “Peremptory Norms of General International Law (Jus Cogens) and the Fundamental Values of the International Community”, takes on a more familiar feel. One of the reasons that Kolb is so critical of the “dominant” approach is the exaltation of fundamental values. The “fundamental values” idea was also criticised by a few members within the Commission. This, in part, explains Wood’s rather gratuitous statement at the end of his chapter, that the characteristics of jus cogens in the Draft Conclusions ought to be revisited on second reading. The Chapter by Galvão Teles provides both an explanation and a justification of the idea of “fundamental values” as an essential characteristic of peremptory norms. It establishes the pedigree of the concept by assessing, inter alia, the jurisprudence of international courts and tribunals as well as the previous work of the Commission. What is of particular interest is Galvão Teles’ appraisal of the consideration of the subject in the course of the Commission’s elaboration of the Draft Conclusions. Here she describes the reception of the proposal both within the Commission and in the Sixth Committee of the General Assembly. The Chapter concludes with a look forward and the prospects for the retention of “fundamental values” as an essential characteristic. Contrary to Wood’s plea, Galvão Teles supports the retention of fundamental although she does suggest that the commentary might offer a stronger explanation for the relationship between characteristics and the criteria for jus cogens. The notion of the international community is central to peremptory norms in international law: the purposes of peremptory norms is, first and foremost, to protect the fundamental values of the international community; jus cogens norms are said to produce obligations owed to the “international community as a whole”; to identify a norm of jus cogens it is necessary to show acceptance and recognition by the international community of States as whole. In the context of the international community and the criteria for jus cogens, two main issues

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attract discussion. The first is what is meant by the “international community of States” and in particular how many States’ acceptance and recognition is sufficient to meet the test of peremptoriness in international law. The second question is whether it is appropriate to limit the acceptance and recognition to that of the community of States or whether it is all of the international community, including non-​State actors that are relevant for the determination. In this context, it is often claimed, as do the ilc Draft Conclusions, that the insertion of “of States” by the Vienna Conference was intended to emphasise that it is the attitudes of States and not of other actors that is relevant for determining whether a norm is one of jus cogens or not. Yet, why, whereas the obligations flowing from peremptory norms are owed to the international community as a whole, does the criterion for the identification of such norms rest on the recognition and acceptance of the international community of States only? Jean Allain in his chapter, “Jus Cogens and the International Community ‘of States’ as a Whole”, offers an alternative explanation for the “international community”/​“international community of States” distinction. He suggests that the Vienna Convention uses, for Article 53, the phrase international community of States as a whole, not to emphasise the State-​centric character of the process of identification and formation of jus cogens norms, but rather to cater for newly-​independent States that were, as yet, not members of the United Nations –​at places these States are referred to as “territorial entities that were not recognised as States within the orbit of the United Nations”. Allain concedes that there is little in the way of evidence for this proposition but that the “inference” can be drawn by looking at the records of the Vienna Conference from the lens of the decolonisation movement. One of the questions posed by some members of the Commission in respect of the overall project is how modification of jus cogens norms can occur when, according to the Draft Conclusions, customary international law contrary to peremptory norms cannot arise. The answer seems simple enough, at least according to the Draft Conclusions and the commentaries.3 Yet the answer provided by the Draft Conclusion (and its commentary) might appear too flippant and abrupt. In his Chapter, Mehdrad Payandeh provides an analysis of

3 Draft Conclusion 14(1) of the Draft Conclusions provides that the rule that a rule of customary international in conflict with a peremptory norm cannot arise “is without prejudice to the possible modification of a peremptory norm of general international law (jus cogens) by a subsequent norm of general international law having the same character”. As explained in the commentary, this would suggest that “to be able to modify a peremptory norm” a rule of customary international law in question “must have the same character as the peremptory norm … being modified” at the time of its emergence.

6 Tladi the process of modification of peremptory norms. Using the prohibition on the use of force he illustrates not only how modification can take place, e.g. what the requirements for modification are, but also the different modalities through which modification can take place, i.e. whether it is through a collision of norms or through interpretation (and re-​interpretation). What emerges from Payandeh’s contribution to the mosaic is that, ultimately, how a norm is modified depends on aspects of its content. Thus, a norm whose content is undisputed, and for which acceptance and recognition is more firmly established will be more resistant to modification. There is a lack of precision here. This lack of precision, Payadeh observes, is part and parcel of law-​making generally and is not unique to peremptory norms. Benjamin Traore, in his Chapter, tackles the impact of jus cogens on the rules of interpretation in international law. The Chapter, titled “Interpretation and Peremptory Norms”, identifies the main interpretative rule flowing from peremptory norms, i.e. the rule that other rules of international law should be interpreted so as to make them consistent with jus cogens norms. This rule which is widely accepted as an application of systemic integration, is intended to curb the far-​reaching consequence of peremptoriness, that of nullity. Traore describes the rule as a natural result of hierarchy. While the rule’s application to treaty rules is a given, in light of Article 31(3)(c) of the Vienna Convention, Traore illustrates why, and how, the same rule must apply to other sources of obligations, i.e. customary international law, resolutions of international organisations and to unilateral acts intended to bind the author. In respect of customary international law, the Chapter assesses the interpretability of customary international law, which emerges from, to use Traore’s description, factual social processes. On resolutions of international organisation Traore focuses on UN Security Council resolutions.4 In this respect he has to confront the question that occupied the Commission for some time, i.e. whether resolutions of the Security Council are subject to the power of jus cogens norms. After an analysis he concludes, without hesitation, that jus cogens is hierarchically superior to the UN Security Council resolutions, that in the case of conflict, the consequence is nullity of the UN Security Council resolution in question and therefore that the interpretative rule he set out to describe applies also to UN Security Council resolutions. This is in contrast to Costelloe’s Chapter, which, perhaps less definitively, concludes differently.

4 It is well known that what is at issue are decisions of the Security Council which may, or may not, be contained in resolutions. For convenience sake, the term used here is resolutions which is the most common vehicle for Security Council decisions.

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Costelloe’s Chapter is not on interpretation. It is on the UN Security Council and in the structure of this volume, it is contained in the Part dedicated to institutions and peremptory norms (Part 2). Still, given the themes it addresses, it is worth mentioning here. In that Chapter, titled “Peremptory Norms and Resolutions of the UN Security Council”, Costelloe focuses on the consequences that peremptory norms may (or may not have) for UN Security Council resolutions. In contrast to Traore, Costelloe expresses doubt about the idea that peremptory norms result in the nullity of Security Council resolutions. The main reason for this, it seems, is that there isn’t a body or entity that is competent to review the decisions of the UN Security Council. In truth, this is true also for decisions of the UN General Assembly. The issue, it seems, that sets the UN Security Council apart, is its solemn mandate for peace and security. Given the importance of the Council’s functions, it would seem that the possibility for unilateral determination that a Security Council resolution is contrary to a peremptory norm and thus invalid is difficult to countenance. While Costelloe expresses doubt about the notion of nullity of Security Council resolution on account of conflict with jus cogens, he does accept that the interpretative rule to which Traore refers does have a “role to play”. Unlike Security Council resolutions, the effects of jus cogens on treaties is more settled and provided for in the Vienna Convention. Gentian Zyberi’s Chapter, titled “Aspects of the Invalidity of Treaties on Account of Conflict with Jus Cogens” addresses particular aspects of the relationship between treaty law and jus cogens. In particular Zyberi addresses questions of severability and reservations. The analysis in the Chapter involves a critique of the Commission’s Draft Conclusions from the lens of international human rights law –​the particular peremptory norms that the Chapter addresses are the prohibition on genocide, the principle of non-​refoulement and the prohibition of torture. The position of the Commission is juxtaposed with the Human Rights Committee’s decision on reservations.5 Zyberi’s account is that the international community has yet to make the most of the immense power of jus cogens and its normative pull. The area in which the power of the jus cogens has been most evident has been the law on State responsibility, which is tackled in the next two chapters of the volume authored by Martha Bradley and Helmut Aust respectively. Bradley’s Chapter, “Jus Cogens’ Preferred Sister: Obligations Erga Omnes and the International Court of Justice –​Fifty Years after the Barcelona Traction 5 Human Rights Committee, General Comment No. 24, Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Protocols Thereto (ccpr/​C/​21/​Rev.1/​ Add.6) (1994), at para 8.

8 Tladi Case”  focuses on the concept of erga omnes obligations. The relationship between erga omnes obligations and jus cogens is addressed in Draft Conclusion 17 of the Commission’s Draft Conclusions.6 Bradley observes that, over the years, with the International Court of Justice reluctant to rely on jus cogens, it has been the notion of erga omnes that has flourished. In the light of this she traces the evolution of the concept of erga omnes through the jurisprudence of the icj, trying to determine how it has evolved since Barcelona,7 through to the Chagos Advisory Opinion.8 The Chapter also attempts to identify those norms whose erga omnes status has received endorsement by the Court. The Chapter by Aust, “Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission”, focuses on the particular consequences for serious breaches of peremptory norms. These consequences, addressed in Draft Conclusion 19 of the Draft Conclusions, are the duty to cooperate,9 the duty not to assist and the duty of non-​recognition.10 After providing a background, including an overview of the debate within the Commission and the initial reaction by States, Aust assesses whether the Draft Conclusions are supported by State practice. This assessment is, it seems, motivated by the Commission’s confidence that the Draft Conclusion reflects customary international law.11 Having highlighted the criticism directed at the Draft Conclusion, and suggesting that the Commission may have been overly ambitious in proclaiming that there exists evidence of supporting State practice, the Chapter suggests that the Commission was wise not to expand the consequences beyond those already contained in the Articles on State Responsibility. 6

Draft Conclusion 17 of the Draft Conclusion on Peremptory Norms (above note 1) provides as follows: Peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest”. 7 Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain), New Application: 1962, Second Phase, icj Reports 1970, p. 3. 8 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, p. 95. 9 Draft Conclusion 19(1) of the Draft Conclusions on Peremptory Norms (above note 1), provides as follows: “States shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens)”. 10 Id., Draft Conclusion 19(2): “No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens), nor render aid or assistance in maintaining that situation”. 11 See id, para 2 of the Commentary to Draft Conclusion 19.

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The Chapters in Part 2 provide reflections on the various ways that institutions of international law interact with peremptory norms. These include regional institutions and the International Court of Justice. The relationship between the jus cogens and the United Nations Security Council, also considered in this part, are addressed in the Chapter by Costelloe, which was described earlier. The first three chapters address the regional institutions and their interactions with jus cogens. But all three adopt different perspectives. While each addresses the possibility of a regional jus cogens –​each rejecting it –​only Šturma’s Chapter is centred around that question. Maluwa’s Chapter, “African State Practice and the Formation of Some Peremptory Norms of General International Law” investigates the contribution of African States, through their regional formation, the Organisation of African Unity and its successor the African Union, to the development of peremptory norms. This practice includes the adoption of treaties within these regional formations. The Chapter structures itself around three norms with close, but differing ties to peremptory norms, namely the principle of self-​determination, the right of the Union to intervene in the event that mass atrocities are committed and the principle of non-​refoulement. Maluwa’s Chapter, however, problematizes each of these. For example, while Africa’s support for self-​determination is loudly proclaimed in rhetoric, Maluwa examines the practice of African States under regional organisations that might cast doubt on the commitment of African States to the peremptory character of self-​determination. The right of the au to intervene in the event of mass atrocities implicates jus cogens in two different ways. First, the prohibitions of atrocities against which the right of the Union to intervene may be invoked are themselves considered jus cogens. Second, the right to intervene might conflict with another peremptory norm, the prohibition on the use of force –​this second angle is considered in greater detail in the Chapter by Corten and Koutroulis, titled “The Jus Cogens Status of the Prohibition on the Use of Force: What is its Scope and Why Does it Matter?” Maluwa addresses both angles. Perhaps –​other than the International Law Commission which brought jus cogens to the front and centre of international law with its Draft Articles on the Law of Treaties –​no other institution has contributed more to the recognition of peremptory norms than the Inter-​American Court and its Commission.12 12

See, quoted in Ruda Santolaria’s Chapter, Separate Opinion of Judge Cançado Trindade in Case of Caesar v. Trinidad and Tobago (Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 11 March 2005, at para. 92 (“It is relevant to keep on identifying the expanding material content and scope of jus cogens, as the

10 Tladi The Chapter by Juan José Ruda Santolaria, titled “The treatment of Peremptory Norms of General International Law (jus cogens) in the Inter-​American Human Rights System”, provides an overview of the rich jurisprudence of both the Court and the Commission. The jurisprudence of the Inter-​American Commission is treated through a consideration of the pathbreaking cases concerning the imposition and application of the death penalty to minors.13 The Chapter also provides a descriptive tour of some of the more important cases decided by the Inter-​American Court, including Aloeboetoe v. Suriname,14 and Goiburú et al v. Paraguay.15 The overarching theme in Šturma’s Chapter, titled “Is There any Regional Jus Cogens in Europe? The Case of the European Convention on Human Rights”, is the question whether the European system can properly be said to represent an example of a regional jus cogens. Šturma provides an historical description of the evolution of the notion of regional jus cogens, noting that the debate started even before the adoption of the Vienna Convention in 1969. He puts into context the idea of “socialist international law” which is often put forward in support of the doctrine of regional jus cogens. In light of the fact that the European system has often been referred to as embodying a “European ordre public”, the Chapter assesses, through a study of the relevant case law, whether it qualifies as an example of regional jus cogens. In the context of the law of treaties, the Chapter analyses the reservation regime and the priority accorded to certain rights under the European Convention on Human Rights. Beyond the law of treaties, the Chapter focuses on the erga omnes character of the obligations flowing from the European Convention. A recurring theme in several of the chapters in this collection –​Traore, Costelloe, Wood –​is the tension of auto-​interpretation and the challenges it poses for the further development of peremptory norms. This was also a problem in the process for the elaboration of Vienna Convention. At the time, the solution advanced for addressing the problem of auto-​interpretation was the Inter-​American Court has been doing in the last years. The Inter-​American Court has probably done for such identification of the expansion of jus cogens more than any other contemporary international tribunal”). 13 See in particular, Roach and Pinkerton, Communication of the Inter-​ American Commission of Human Rights, 22 September 1987, at paras. 1, 3 and 4 and See Michael Domingues (Merits), Communication of the Inter-​American Commission on Human Rights, 22 October 2002, at paras. 40-​45. 14 Case of Aloeboetoe et al v. Suriname (Reparations and Costs), Judgment of the Inter-​ American Court of Human Rights, 10 September 1993. 15 Case of Goiburú et al. v. Paraguay (Merits, Reparations and Costs), Judgment of the Inter-​ American Court of Human Rights, 22 September 2006.

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dispute settlement regime of the Vienna Convention, underpinned by Article 66. This regime foresees disputes concerning the application of Articles 53 and 64 that are not settled amicably being adjudicated by the International Court of Justice. The Chapter by Catherine Maia, “Jus Cogens and (In)application of the 1969 Vienna Convention on the Law of Treaties in the Jurisprudence of the International Court of Justice”, considers the effectiveness of those provisions through the jurisprudence of the Court. Yet the Chapter does not limit itself to the application of Article 66. It contends that part of the problem (of the effectiveness of Vienna provisions), rests with vague formulations and the inability of the States at Vienna Convention to adequately define the concept. The Court itself, even when provided the opportunity to apply jus cogens, has been reticent to pronounce on jus cogens in a way that affects the case, settling instead for what Maia refers to “inoffensive” invocations of the concept. She addresses the reasons and the implications of this. While the Chapter ends on the positive note, highlighting that the concept of jus cogens has left the garage, the analysis does reveal the tentativeness of this conclusion. For example, where jus cogens has been relied on dispositively by the Court, it has been to deny, rather than admit, an effect.16 Julia Sebutinde, in her Chapter “Is the Right to Self-​Determination Jus Cogens: Reflections on the Chagos Advisory Opinion”, writes on a particular decision of the International Court of Justice in which jus cogens was at play, namely the Chagos advisory opinion.17 Sebutinde, as Judge on the International Court of Justice and having penned a separate opinion addressing the jus cogens character of self-​determination –​the norm implicated in the Advisory Opinion –​is uniquely qualified to write a chapter on the Court’s treatment of the peremptory character of self-​determination. While the Chapter puts forward substantial evidence for the peremptory character of self-​determination, it also addresses the scope of the right to self-​determination in the context of another principle of international law, uti possidetis. Consistent with the separate opinion of Judge Sebutinde, the Chapter is critical of the Court’s unwillingness to explicitly declare self-​determination a norm of jus cogens. This criticism is interesting given the disputations surrounding the Court’s decision to rely, yet again, on erga omnes without asserting the peremptory character of the norm. In the Chapter by Rosalind Elphick, co-​authored with the assistance of John Dugard, the role that jus cogens norms should play in the assessment, by 16 17

An example of this is the Jurisdictional Immunities of the State (Germany v. Italy; Greece (intervening), icj Reports 2012, 99, at para. 93. Chagos Advisory Opinion (above note 17).

12 Tladi international courts and tribunals, of appropriate compensation is considered. This is certainly not an issue that is often thought about, and the Chapter’s overriding objective appears to be to bring this issue to the fore and to highlight its importance. This is important in light of the increase in the frequency of reliance on jus cogens and the increase in claims for compensation. The Chapter, titled “Jus Cogens and Compensation”, sets out to provide observations on the quantification of compensation for violations of peremptory norms. Based on the jurisprudence from arbitral tribunals and the International Court of Justice (and its predecessor the Permanent Court of International Justice), the Chapter determines the appropriate standard of compensation to be “full reparation” and proceeds to give content to that standard. It then assesses the relationship between compensation and jus cogens. In so doing the Chapter provides interesting statistics showing the rise in claims for compensation in cases before the International Court of Justice and other international tribunals in recent years. While emphasizing the importance of catering for jus cogens in the quantification of compensation, the Chapter also acknowledges the complexity of accounting for jus cogens in the quantification of compensation. In the analysis, the role of equity as a tool for measuring non-​pecuniary harm is addressed. The main problem for judicial settlement of disputes is not, however, quantum of damages, or the icj’s reticence to rely fully on jus cogens. The biggest problem is the lack of compulsory jurisdiction, leading to what has been referred to as auto-​interpretation. Wood’s Chapter, “The Unilateral Invocation of Jus Cogens Norms”, takes up the question of auto-​interpretation of international law, and jus cogens norms in particular, and how auto-​interpretation enhances the reticence of (some) States to accept jus cogens. Auto-​interpretation has haunted jus cogens from the beginning of its consideration by the International Law Commission and the Vienna Conference. The Chapter traces the deliberations leading to the adoption of the Vienna dispute settlement regime. The Chapter notes that while the Vienna Convention’s dispute settlement framework provides somewhat of a solution, this solution is necessarily limited to States Parties to the Vienna Convention. Against this background Wood provides an assessment of the Commission’s Draft Conclusion 21 on dispute settlement.18 After a description of the initial reaction from States, Wood offers some suggestions that, in his view, could make the provision more palatable to States. 18

The main element of Draft Conclusion 21 is in para 5 which provides: “4. If no solution is reached within a period of twelve months, and the objecting State or States concerned offer to submit the matter to the International Court of Justice, the invoking State may not carry out the measure which it has proposed until the dispute is resolved”.

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The chapters in Part 3 of the volume all concern particular norms that constitute (or could constitute) peremptory norms. Mary Hansel’s Chapter, “More Smoke and Mirrors Than “‘Magic’ or Smoke and Mirrors?” serves as both a critique of the Commission’s approach to the identification of peremptory norms as well as a call for the inclusion of the prohibition of gender discrimination as a peremptory norm. The argument in Hansel’s Chapter consists of a number of elements. The first element is that the Commission adopts a positivist approach to the identification of peremptory norms. The second element is that, while positivism makes a claim to objectivity, there is nothing objective about the methodology employed to identify norms of jus cogens. The third element is that, in fact, the positivist façade employed by the Commission in the identification of jus cogens, is done for the purposes of subjugating and marginalizing gender concerns. Finally, the chapter makes an argument for a normative approach which includes the prohibition of gender discrimination as a peremptory norm. Part of the motivation for Hansel’s Chapter is the Fourth Report of the Special Rapporteur in which I stated that while I believed gender discrimination ought to be a norm of jus cogens, there was insufficient evidence that the international community of States as a whole recognized and accepted it as a peremptory norm of general international law.19 The Fourth Report makes a similar claim about environmental protection.20 Nilufer Oral’s Chapter, “Environmental Protection as a Peremptory Norm of General International Law: Is it Time?”, addresses this candidate norm. Unlike Hansel’s Chapter, Oral does not criticize the Commission for its non-​inclusion of environmental protection. Instead, she provides a detailed history of the recognition of the peremptory character of aspects of environmental protection. She also provides evidence of the recognition of the importance of environmental protection. Yet the Chapter recognizes that there isn’t sufficient evidence of 19

20

Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019), para 135 (“as a normative proposition, [that] gender discrimination should be prohibited in the same way as other jus cogens norms”.). Id., at para 136 (“By virtue of the importance of the subject matter and the catastrophic consequence that could result from the destruction of the environment, it might seem obvious that norms that aim at protecting the environment (at least some of them) would have the status of jus cogens. Yet, there seems to be little evidence of the required “acceptance and recognition of the international community of States as a whole” that the environmental norms (or some of them) have acquired peremptory status, notwithstanding this empirical fact of the importance of environmental rules for the very survival of humanity and the planet”.

14 Tladi the second criterion for peremptoriness. Oral’s Chapter is a plea for more to be done by States and commentators, to prepare for the recognition of the peremptory status of some aspects of environmental protection. The Chapter by Ki-​ Gab Park, “The Right to Self-​ Determination and Peremptory Norms”, tests the peremptory character of the principle of self-​ determination against the criteria set forth in the Draft Conclusions adopted by the Commission on first reading. While the Chapter easily concludes that the first criterion is met, i.e. the principle of self-​determination is a norm of general international law, it finds that there is some doubt as to whether the second criterion, acceptance and recognition by the international community of States of the peremptory character of self-​determination, is satisfied. While the Chapter notes conflicting opinions about self-​determination, these conflicting opinions are not seen as a hurdle to its peremptory status. Rather, the Chapter identifies a set of four areas that would need to be clarified before the principle of self-​determination can be said to have achieved the status of jus cogens. These are (i) procedural legality, (ii) a determination of the holder of the right, i.e. what is meant by “peoples”, (iii) the types of obligations on other States that flow from self-​determination and (iv) a clear determination as to the scope of the principle of self-​determination, i.e. whether it applies to internal self-​determination and/​or external self-​determination. Park’s approach to the determination of peremptory status can be contrasted with Corten and Koutroulis’ Chapter on the prohibition on the use of force. In that Chapter, titled “The Jus Cogens Status of the Prohibition on the Use of Force: What is its Scope and Why Does it Matter?”, Corten and Koutroulis show why some ambiguity in interpretation is not a hurdle to the elevation of a norm to the status of jus cogens. That Chapter is focused principally on the determination of the proper scope of the jus cogens prohibition on the use of force. The Annex to the Draft Conclusions containing the non-​exhaustive list of peremptory norms refers to the “prohibition of aggression” as a peremptory norm. The Fourth Report had explained that this was purely a “terminological matter”. Corten and Koutroulis argue that this is not merely a “terminological matter” and then proceed to show why the choice of the “prohibition of aggression” is the wrong one. The Chapter provides a wealth of evidence of State practice that it is the whole of the prohibition on the use of force as provided for in the UN Charter that is recognized and accepted by the international community of States as whole as norm of jus cogens and not only the “most grave forms” of the use of force (aggression). While the prohibition on the use of force (Corten and Koutroulis) and principle of self-​determination (Park) are reflected in the Commission’s non-​ exhaustive list, the prohibition of terrorism is not. Aniel de Beer in her Chapter

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titled “The Prohibition of Terrorism as Jus Cogens” considers whether the prohibition of terrorism meets the requirement for peremptory status. There is no question that terrorism is one of the most serious threats to international peace and security. The Chapter by de Beer applies the criteria adopted by the Commission to the prohibition of terrorism. The Chapter also uses the characteristics of jus cogens –​fundamental values, hierarchical superiority and universal applicability –​to augment her application of the criteria. It is noteworthy that in his gratuitous comments on the characteristics, Wood refers to this type of analysis as a reason for the Commission to reconsider the characteristics in Draft Conclusion 3 of the Commission first reading text. As noted earlier, in her own Chapter, Galvão Teles, who supports the characteristics, suggests that the precise relationship between the criteria and characteristics may need to be clarified further. Another norm that is not included in the Commissions’ list is the sovereign equality of States. The peremptory status of this norm is considered in the Chapter by Hannah Woolaver, “Sovereign Equality of States as a Peremptory Norm”. The non-​inclusion of this principle was, of course, intensely debated by the Commission –​a debate that is captured in Woolaver’s Chapter. While, in the end the Commission did not include the norm in the Annex, mainly because it had not explicitly been referred to in the earlier work of the Commission, the commentary to Draft Conclusion 23 does note that “principle of the sovereign ‘equality of States’ –​a fundamental principle under the Charter of the United Nation” had been referred to in the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties.21 The Chapter by Woolaver sets out to show that sovereign equality of States has been accepted and recognised as a peremptory norm. The Chapter confronts (and responds to), some of the obvious questions about the peremptory status of sovereign equality, e.g. that there are examples, in treaty practice, of inequality of States, such as the privileges accorded to the Permanent Members of the UN Security Council and weighted voting in international financial institution. Sovereign equality of States, together with several other norms not included in the Commission’s list, are contained in important instruments like the United Nations Charter and the UN Declaration on Friendly Relations of States. The Friendly Relations Declaration is the subject of the Chapter by Jorge Viñuales, “The Friendly Relations Declaration and Peremptory Norms”. The Chapter addresses the relationship between the Declaration and Peremptory Norms.

21

See para 13 of the Commentary to Draft Conclusion 23 of the Draft Conclusions on Peremptory Norms (above note 1). (emphasis added).

16 Tladi Viñuales does not, in his Chapter, seek to assess the peremptory status of individual norms in the Friendly Relations Declaration. Rather, Viñuales seeks to identify parallels in the processes (and outcomes) leading up to the adoption of the Declaration and the development of jus cogens. He identifies two dominant impulses underlying these processes. The dominant impulse underlying the Friendly Relations Declaration is an inter-​State one, while the dominant impulse for peremptory norms is humanitarian. Both of these processes, and their respective outcomes, have in common a stratification, or hierarchisation, of international law. The final chapter does not, as such, address a specific norm or specific set of norms as jus cogens. The Chapter, by Kobina Daniel, concerns immunity, and while claims about the jus cogens status of immunity have been made, the Chapter makes no such claim. Rather, it addresses a particular consequence alleged to be attached to the breach of particular norms with peremptory status, namely international crimes having peremptory character. Daniel’s Chapter, “A Jus Cogens Human Rights Exception to Head of State Immunity: Fact, Fiction or Wishful Thinking?”, evaluates arguments that have often been advanced in academic discourse that a particular consequence attached to jus cogens crimes is the unavailability of immunity. Daniel provides a detailed account of why, in his view, the arguments are all flawed and without merit and why, immunity is not affected by the commission of jus cogens crimes. 4

In Conclusion

The contributions in this volume address a wide spectrum of issues related to jus cogens. The chapters also illustrate the wide variety of views and divergence that exist on jus cogens. While there is much disagreement about a wide range of issues, there are also a number of areas on which there is some convergence, tentative though that convergence may be. For example, there seems, from this collection of diverse thinkers, to be a fair bit of convergence on the methodology to be applied in the determination of whether this or that norm constitutes a peremptory norm (Kolb and Hansel being the exceptions). There is also a high degree of convergence on the interpretative function of jus cogens. The importance of minimising the impact of auto-​interpretation also received support across a spectrum of chapters. The notion that jus cogens was underpinned by fundamental values of the

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international community was also ubiquitous in the chapters of this volume, with only two chapters expressly questioning the notion of values and three not referring to values at all. These areas of convergence, tentative though they are, provide space for continuing deliberations and engagement which, may lead to greater clarity on important aspects of jus cogens.

pa rt 1 Conceptual Issues

∵

Chapter 2

Peremptory Norms as a Legal Technique Rather than Substantive Super-​Norms Robert Kolb 1

The Substantive View of Jus Cogens

The substantive view of jus cogens has increasingly predominated the scene since the adoption of the Vienna Convention on the Law of Treaties (“vclt”) in 1969, with its seminal Articles 53 and 64. The predominance of the substantive view of jus cogens can also be seen in the use of terms. The title which was suggested to the present author for this contribution, for example, is “Peremptory Norms as …”. From this terminology flows the idea that there are some norms –​ substantive norms –​which as such have a special status. The term jus cogens, on the other hand, can more easily be interpreted in a broader way. It triggers the idea that the law in general –​not some specific norms –​can have a “cogent” nature, i.e., that different legal rules can have a special technical quality. This contribution is a critique of the dominant substantive approach. Even if it is followed by almost all authors and proclaimed (rather than applied) in a series of instances of international practice, it remains, to this day imprecise and has shortcomings which could easily be avoided. I will restrain myself from footnoting this text with many references, since the number of pages I have at my disposal are limited and I would like to devote them fully to reasoning. Much has been written on jus cogens and the interested reader can find more extensive references in my previous writings on the subject matter, which are precisely heavily footnoted, and in other writings.1 1 See mainly Robert Kolb Théorie du Ius Cogens international (Paris, 2001) (with a great number of references); Robert Kolb Peremptory International Law Jus Cogens: A General Inventory (Hart, 2015) (with a few number of references). A recent study on jus cogens with many useful references can be found in Thomas Weatherall Jus Cogens –​International Law and Social Contract (Cambridge, 2015). The Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the international Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019) also contains much useful material. See also the previous reports of the Special Rapporteur: First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693) (2016); Second Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n4/​706) (2017), Third Report of the Special

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_003

22 Kolb What do we mean by the term “substantive view” of jus cogens? It is the conception that there is a series of norms of international law that, because of their content (“substance”) reflecting fundamental values of the international community as a whole, are placed in a hierarchically superior position in relation to all other norms of the legal order.2 From this higher position flows the nullity or inapplicability of the inferior norms, as well as aggravated consequences in case of breach of such norms, and possibly an array of other consequences to be defined in international practice (or, for some, to be deduced from the concept itself).3 This conception hinges upon the idea that peremptory norms are the expression of a material public order of the international community. It gives rise to the conception that no “exception” whatsoever can be accepted in respect of such norms, neither derogation, nor non-​application, nor inferiority of any type.4 The main elements of this substantive view of vertical collision of norms are: (i) fundamental values; (ii) giving rise to a public order of the international community, (iii) hierarchical superiority of the norms flowing from the latter; (iv) from where various effects of those norms flow, ranging from nullity of the contrary norm to aggravated responsibility and amongst others and amongst others.5 If one goes to the core of the matter, the substantive view can be reduced to two elements: values and hierarchy.

2 3

4 5

Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​ cn.4/​714) (2018); and Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019). See, in this volume, Patrícia Galvão Teles “Peremptory Norms of General International Law (Jus Cogens) and The Fundamental Values of The International Community” (Chapter 3). This view is now espoused by almost all authors. Compare, Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006); Marko Milanovic “Norm Conflict in International Law: Whither Human Rights?” (2009) 20 Duke Journal of Comparative and International Law 69, at 74. For a longer list of quotations, see Kolb Peremptory International Law (above note 1), at 32, fn. 3. See also Weatherall (above note 1), at 90–​92. Under its most recent Draft Conclusions, the ilc now fully espouses this vision. See Draft Conclusion 3 of the ilc Draft Conclusions (above note 1). As to the effect of jus cogens, see the critical reflections of Carlo Focarelli “La dynamique du droit international et la fonction du Jus Cogens dans le processus de changement de la règle sur l’immunité juridictionnelle des etats étrangers” (2008) 112 Revue Générale de Droit International Public 761, at 761 et seq. Or perhaps only accepted exceptions, such as self-​defense in the case the non-​use of force rule, are themselves considered to be peremptory. Thus, the issue of “breach” of such norms comes into the focus: it produces distinctive legal consequences. Compare Articles 40–​41 of the Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001). On these provisions, see James Crawford The International Law Commission’s Articles on State Responsibility (Cambridge, 2002), at 242. See also Weatherall (above note 1), 384 et seq; Daniel Costelloe Legal Consequences of Peremptory Norms in International Law (Cambridge, 2017), at 184 et seq.

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According to this classical position, a treaty provision contrary to a peremptory norm of international law entails its absolute voidness6 and triggers also the voidness of the whole treaty in which it is embedded, since separation of the vitiated from the non-​vitiated clauses is not allowed.7 Alternatively, if the peremptory norm emerges after the conclusion of the treaty, the latter will terminate ex nunc, but the vitiated provision will be separable from the rest of the treaty, which thus may be salvaged in its excised version if certain conditions are met.8 This mechanism is constructed in the substantive version as a consequence of normative hierarchy: because lex superior derogat legi inferiori, the contrary norm or treaty is void. Voidness is taken as the signpost par excellence of hierarchy. This basic idea is then extended to other sources of international law. Thus, the ilc considers that a new norm of ordinary customary international law cannot emerge against an existing norm of peremptory nature, and that a new norm of peremptory nature will terminate an older non-​peremptory customary norm, analogous to what is provided in article 64 of the vclt (1969) for treaties.9 Such special norms of substantive nature are mainly the non-​use of force rule (or non-​aggression), the prohibition of genocide, the prohibition of crimes against humanity, the basic rules of international humanitarian law, the prohibition of racial discrimination and apartheid, the prohibition of slavery, and the prohibition of torture and the right of self-​determination.10 This list shows that jus cogens norms in the substantive complexion are mainly prohibitions. They go to the core of abhorrent activities which the law seeks under all circumstances to prohibit and denounce. But already in the limited area of these classical cases of treaty or other voidness, some doubts arise. Is the hierarchy explanation really necessary? Is it precise? Is it not misleading? After all, the “hierarchy” is here neatly established –​ if at all –​only between the peremptory norm and the derogatory norm, not with regard to all the other norms of the legal order. It is inter se and not erga omnes “hierarchy”.11 In order demonstrate a more general hierarchy, it is not 6 7 8 9 10

11

See Costelloe (above note 5), at 54 et seq.. Article 44, 44(5) of the 1969 Vienna Convention on the Law of Treaties. Id., at Article 64 and 44. Draft Conclusion 14 of the Draft Conclusions on Peremptory Norms (above note 1). Id, Annex. On the content of jus cogens, see also among the newer studies Weatherall (above note 2), 183 et seq. and among the older literature Stefan Kadelbach Zwingendes Völkerrecht (Berlin, 1992), at. 210 et seq. or generally Lauri Hannikainen Peremptory Norms ( Jus Cogens) in International Law: Historical Development, Criteria, Present Status (Helsinki, 1988). Some authors, however, correctly saw that the voidness relationship between two norms does not imply any general hierarchy: Michel Virally “Réflexions sur le Jus Cogens” (1966) 12 Annuaire Français de Droit International 5, at 18; or at least that the “hierarchy” is

24 Kolb enough to mention this voiding of a treaty process. There is here manifestly a non sequitur: from one single case it is not possible to establish a quality for all other cases; and it is not even clear that the voidness-​relation of this case is one of hierarchy, rather than being a special relation of some other type, e.g., precisely of voidness. Indeed, this concrete relationship is much more than simple “hierarchy”: the issue is not that one norm is superior to the other and that the ensuing conflict has to be solved in some way, possibly by the precedence of the higher norm with regard to the lower, which is the most usual case. Here we are confronted with more than that: the lower norm disappears altogether, since it is entirely voided. Thus, the conflict also disappears, and with it lastly the “hierarchy”. There remains only one norm, the peremptory one which has completely cleared its ground like an agent of a scorched-​earth policy. If at all, this is a very radical “hierarchy”. It is “destruction-​hierarchy” and not “precedence-​hierarchy”. The word hierarchy in itself thus fails to indicate the concrete legal consequences in this context. It hides behind a lofty image and provides little more than a convenient short-​hand. Perhaps it would be better to describe the real legal effect rather than to use vague terminology. The mention of the “fundamental values of the international community” is not necessarily unwelcome to the virtuous mind. But for the lawyer –​even when virtuous –​it designates mainly a material source rather than something that can be directly used in legal analysis. What is essential in the latter context is that the rule is recognized in its peremptory quality by the legislator, i.e., by the States.12 Recognition and fundamental values –​a doubtful doubling! Indeed, if “recognition” is the controlling element for legal analysis, the “values” shade into some ritualistic incantation, into a lofty and generous phrase with no precise legal consequences.13 After all, if the States recognize a norm

12

13

limited to the bilateral relationship of the two norms; Christos Rozakis The Concept of Jus Cogens in the Law of Treaties (Oxford,1976), at 22 (“The novel vertical scheme introduced in international law consists […] of the hierarchically superior norms of jus cogens and the hierarchically inferior norms of particular law. All other categories of rules are not affected by the superiority of the jus cogens norms vis-​à-​vis particular treaties or rules; consequently, the international legal system remains basically horizontal with all rules of law in a linear formation, side by side with the jus cogens norms”). This is recognized in the ilc’s Draft Conclusions on Peremptory Norms (above note 1), see Draft Conclusions 6 and 7. On the formal source of jus cogens, see e.g. Weatherall (above note 2), at. 124 et seq. and an older article of the present author: Robert Kolb “The Formal Source of Ius Cogens in Public International Law” (1998) 53 Zeitschrift für öffentliches Recht und Völkerrecht 69, at 69 et seq. see also Sevrine Knuchel Jus Cogens: Identification and Enforcement of Peremptory Norms (Zurich, 2015), at 41 et seq.. According to the ilc, while the characteristic of fundamental values is not itself a requirement or element for peremptory norms, it may be used in support of the requirement

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25

as having the peremptory status, it can be a norm of whichever nature, even one which does not express the fundamental interests of the community. Thus, it is the recognition that makes a norm peremptory (or jus cogens), not the values. To be sure, it can be said that if States recognize a rule as peremptory, this in itself shows that the rule is expressing such fundamental values. But the qualification by the values is then at once legally unnecessary and becomes a simple fiction, with no proper function of its own. In short terms, the mention of these fundamental interests of the international community is a descriptive element, which has however seemingly crept into the definition of the concept itself. It is not clear whether such a contamination is legally correct or welcome. It rather seems not. As to the “public order” of the international community, there is no reason to disregard or to negate it. International politics of the day are certainly not very attached to such overriding common interests. We have unfortunately stepped back toward the eternal “my country first”-​logic, which is now propagated with fierceness and sometimes aggressiveness. However, there is no doubt that general interests exist and are articulated, in the context of environmental protection, of maintenance of peace or of fundamental rules on humanitarian protection. There is also no doubt that some jus cogens norms give expression to this public order. These norms are however not the public order itself. This latter notion is broader, jus cogens being only one of its effects. This can be easily grasped if one reflects on the fact that erga omnes-​standing entitlements may also flow from the public order concept and not from the peremptory quality of the norm itself. The question then arises: does the public order add much to the fundamental values? Or is it just the expression of them? Could we not eliminate one of the two terms?14 Could we keep only the public order, an expression of greater legal lineage, and eliminate the fundamental values, which seem to be just the underlying political explanation

14

of recognition. See Draft Conlcusions on Peremptory Norms (above note 1), at para. 16 of the Commentary to Draft Conclusion 3. See also Dire Tladi “ The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine” (2020) 89 Nordic Journal of International Law 244, at 262 (“However, the characteristics “may provide an indication of the peremptory status of a particular norm” or, put another way, “evidence that a norm reflects and protects fundamental values of the international community of States as a whole, is hierarchically superior to other norms … and is universally applicable” could be used to support the peremptory status of a norm”.). The notion of public order has been raised in the debates of the ilc. See Forteau (A/​c n.4/​ sr.3317), at 12. The Commission has however, not relied on this concept at all in the Draft Conclusions.

26 Kolb of the legally construed public order? Be that as it may: the main point, to be developed in the next section, is that the link of jus cogens with the public order is not of a necessary or sine qua non nature. The substantive view of jus cogens seems to suppose exactly this indissoluble link. According to this generally held view, the fundamental values give rise to a public order; this public order generates peremptory norms. The chain channeling both cannot be broken. Hence, no peremptory norms exist or can exist outside that ivory tower of fundamental values and of public order. So much so that under this conception jus cogens largely melts into its two mentioned nurturing concepts. But is that not an a priori restriction of the peremptory phenomenon in international relations? Could we not look through a neutral lens to see whether other legal phenomena could be classified as jus cogens or jus cogens-​related techniques in international law, without being prisoners of the mantra that peremptoriness can exist only in the holiest halls of the temple? Can there not be a public order jus cogens and also a jus cogens of another lineage? As can be seen, there are already some conceptual doubts as to the dominant legal construction of jus cogens. The point is not so much to say that the substantive view is wrong. That would be truly a daring conclusion since this view is espoused by almost all international lawyers of this day and by the prestigious ilc. The focus of the critique is rather on the excessive dogmatization, on the shortcomings and on the incompleteness of an analysis that focusses excessively on such a priori requirements which have imposed themselves without being accompanied by sufficient critical distance (see below, ii). It is understandable that authors or ngo’s with a clear-​cut political agenda of unbridled progressiveness are eager to term themselves the advocates of that “universal public order”. They may then impose an unlimited primacy of the rules of international law –​real or invented –​of their own preference, for example of human rights, as they see them, on any other norm of international law, ousting immunities,15 diplomatic or other, reducing territorial integrity or internal affairs, slapping unwelcome treaties or even municipal legislation with the great and convenient sway of jus cogens-​hierarchy or peremptoriness-​nullity.16 The issue is here not mainly with such constructions, whose epicenter is not legal but political. It is rather with the mainstream legal conception of jus cogens. The aim is to construe the concept so that it adequately reflects what it can realistically perform, that it gives a true account of observable legal consequences and that it does not provoke resistance by all too alarmed States. Because one thing 15 16

On this issue, see e.g. Costelloe (above note 5), at 242, with many references. For such an approach, see e.g. R. Pisillo-​Mazzeschi, “Coordination of Different Principles and Values in International Law” (2018) 61 German Yearbook of International Law 209.

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is certain: the concept of jus cogens is a necessary tool of each and every legal order. A legal order where all norms would be dispositive has never existed and cannot exist. If all rules can be contracted out of, the normative order dissolves. 2

Shortcomings of the Substantive View

As has already been suggested, there are shortcomings of the traditional substantive view of jus cogens. These can be summarized under three headings. A) Uncertainty If peremptory norms are substantive norms endowed with hierarchical superiority, the doctrine of jus cogens becomes tantamount to a doctrine of constitutional law norms. We would then have to define something like a material constitution of the international community. Its norms would be accorded superiority with regard to the ordinary legislative norms of international law. Thus, in this complexion, jus cogens has become a body of substantive rules of international law distinguished from all other rules –​a material body of law apart. In the same way as international law has been enriched by a new sediment layer of “soft law”-​norms, which are not legally binding, it has been also expanded by another sediment layer of “jus cogens”-​norms, with super-​binding legal force.17 The main point is that the category of peremptoriness is thus “ontologized”: as much as soft law is a separate and distinct sediment of the body of international norms with respect to international law, so jus cogens also becomes a separate province of the law. But if that is true, we have to carefully define which norms are part of that constitutional legal order. In view of their considerable impact not only on the voidness of certain legal acts, but through a vast array of real or potential consequences in the whole legal order, such norms may have shattering or uprooting effects. In view of such multiple and massive consequences, it is not enough to say that such norms are those “recognized” by the international community to be such, or to give a vague list of some norms which have attained such a status. For example, which are the fundamental norms of international human rights or humanitarian law covered by such status?18 17 18

Compare Prosper Weil “Le droit international en quête de son identité” (1992) 237 Cours de l’Académie de Droit International de La Haye 9, at. 227. Indeed, the first three speakers in the debate on the Fourth Report of the Special Rapporteur (above note 1) addressed this issue. See Wood (A/​c n.4/​s r. 3459), at 10, (“It was also necessary to clarify what was meant by the “basic rules of international humanitarian

28 Kolb In short terms, the more legal effects one packs into the “hierarchy” of such norms, the more a careful definition of them becomes necessary. In contrast, the less is packed into the “hierarchy”, the less the imprecise definition of the nature and number of jus cogens norms becomes a serious drawback. The substantive view packs constantly expanding consequences into the concept and yet has never been able to provide a sufficiently precise list of such norms. And even if a list is produced, as now by the ilc, it is expressly claimed that the list is non-​exhaustive.19 Not only is the lack of proper identification of the norms a problem, but so is also the lack of identification of the precise peremptory content of each norm. It stands to reason that in most cases not all contents of the norm at stake are of peremptory nature. The norm has different regulative layers; it has core and peripheral aspects; it has multiple contents of different importance. This is all the more true of “fundamental” norms, which spawn over a broad normative landscape, contrary to tiny and insignificant norms, for example the rules concerning the filling-​in of a capture card for prisoners of war.20 Thus, under the substantive view the “non-​use of force rule” is often mentioned as a peremptory norm, and sometimes the authors expressly refuse to limit this finding to the mere aspect of the prohibition of aggression.21 But it is then obvious that the recognized exceptions to that principle, e.g. self-​defense, can lead to agreements (e.g. on collective self-​defense) which are not void because of some conflict with the

19 20 21

law”); Murase (A/​c n.4/​s r. 3459), at 15; Park (A/​c n.4/​s r. 3459), at 18 (“ Regarding draft conclusion 24 (h), the use of the term “basic rules of international law” was acceptable in the articles on State responsibility, but it seemed to cover a vast number of rules in the international humanitarian law regime. The Special Rapporteur himself had noted the uncertainty surrounding the issue of jus cogens and basic rules of international humanitarian law, especially with regard to the question of which rules of international humanitarian law qualified as the “most basic”.). See Draft Conclusion 23 of the Draft Conclusions on Peremptory Norms (above note 1). See Article 70 of 1949 Third Geneva Convention Relative to the Treatment of Prisoners of War. See the subtle and strong reasoning by Olivier Corten Le droit contre la guerre (Paris, 2008), at 295–​296. See also in this volume Olivier Corten and Vaios Koutroulis “The Jus Cogens Status of the Prohibition on the Use of Force: What is its Scope and Why it Does it Matter” (Chapter 22). The main argument is that aggression is linked generally to massive or grave uses of force, while smaller uses of force are not covered. Yet, such smaller uses of force must also be covered by the voidness of contrary agreement. Exceptions are generally not contrary to the peremptory character of the norm, as long as the core of its remains non-​derogable.

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peremptory norm on the non-​use of force. In the context of human rights norms, there are core and peripheral elements. Thus, even in the context of the prohibition of torture, the core obligation of a negative nature must be distinguished from all the positive obligations gravitating around it. It may appear obvious that the negative core of the rule (the practice of torture itself) cannot give rise to valid contrary agreements under international law (but perhaps to valid contrary national law?). Is that equally true of all the peripheral positive obligations, e.g., to provide a maximum level of training to the State agents in risk of coming into touch with torture situations? What if in an agreement on military deployment, the level of training in this regard falls beyond the standard applied by some human rights Court? Is the agreed norm and then the whole agreement void because of non-​separability?22 The argument of most lawyers would be that it is not, since that part of the human right on the prohibition of torture is not peremptory. But the issue is not to be passed under silence: indeed, the list of such queries could be continued into an array of complex distinctions. By the same token, norms such as the “self-​determinations of people” trigger many questions as to their peremptory core and their non-​peremptory periphery. Thus, were the agreements between Israel and the Palestinians of the 1990’s void, because they did not fully implement the right to self-​determination? Is therefore political compromise rendered impossible by a massive and insolent jus cogens-​principle, disallowing any transaction on mandatory “rights”?23 Probably not, but the point hinges precisely on the issue of how far the peremptory content of the self-​determination principle extends. Such questions of extent, the ones really essential for the lawyer, are hardly ever analyzed. The substantive view and its main proponents stop at their gates. The job is considered to be done with the incantation of public order. Meticulous legal technique in such lofty and Olympic arenas of human life? No, thanks. These two blind spots of the substantive doctrine –​identification of the norms and identification of their peremptory content –​trigger a considerable amount of legal uncertainty in an area where it would be proper and wise to narrow it down. The substantive view is manifestly not in any way incompatible with such an additional effort. It 22 23

Article 44(5) of the Vienna Convention. Compare Robert Barnidge “Questioning the Legitimacy of Jus cogens in the Global Legal Order” (2008) 38 Israel Yearbook on Human Rights 199, at 199 et seq.

30 Kolb

B)

24

seems however that the “substantialists” have frequently little taste for engaging in such painstaking legal technique analysis. One reason for this state of affairs may be that such authors do not wish to narrow the scope of their champion, the jus cogens principle, whose shining bright could be obfuscated. Excess The substantive view leads to some excessive results, which are not borne out by international practice and which would shatter the international legal order. This inadequacy flows mainly from the ill-​suited and sweeping “hierarchy” logic. It is one thing to proclaim a vague and lofty “hierarchy” idea; it is another thing to answer the question what it concretely implies on the legal plane. The core idea of a hierarchy is that the higher norm has precedence over the lower one, i.e., that it displaces the lower norm; if the hierarchy argument does not entail such legal consequences, it is merely symbolic or political, and then legally doubtful or even useless. This hierarchy-​logic can be pushed as far as to say that the lower norm is voided ex tunc. But if that is true, it seems to mean that the norms identified as jus cogens, e.g., in the list of the ilc, take automatic precedence in every case of conflict with the lower norms, if they do not also void them. The icj then perhaps erred in its legal analysis of the Jurisdictional Immunities case of 2012,24 at least if the access to court is regarded as a peremptory human right. It should then have taken precedence over the jurisdictional immunities of Germany, the latter being clearly non-​peremptory. If this logic is carried through, i.e., if we assume that access to court is itself peremptory, and if we assume that all procedural norms of the court yield to the peremptory norm, we might end up with one sole great and truly binding part of international law, a “super-​human rights law writ large” which derogates to all other treaty and customary norms of inter-​State law. A conflict between a human right norm of access to justice and the inviolability of the archives of an embassy? The human right of access –​so the argument will go –​must be given “real and practical effects”, it must be construed materially to be effective and not only formally to be applicable. Thus, it is not sufficient to simply grant access to a court; the State must also secure that the individual can prove the “abuses” victimizing him at the court he or she accesses, Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), icj Reports 2010, p. 99, paras. 140–​142; but see the Dissenting Opinion of Judge Cançado Trindade, at paras. 121 et seq and 288 et seq. See generally Costelloe (above note 5), at 242.

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31

otherwise the access is deprived of any utility. But the evidence is located in the archives of an embassy! The inviolability of the latter is manifestly a non-​peremptory rule; the State may indeed agree to open its archives on any conditions. Thus, the peremptory norm, hierarchically superior, takes precedence over the non-​peremptory one. The positive obligation under the human rights norm then simply ousts the inviolability rule. Where are the limits of such a reasoning? This is difficult to see. This shows one thing, if any: it is utterly insufficient to throw in the arena the “hierarchy”-​idea and to think that the legal work has thereby been performed. No, the true work just starts at this juncture. Whatever the solution, the concept of “hierarchy” suggests that the former norm (human rights) must, to some extent, neutralize the latter one (inviolability). If this is not the case, if both norms continue to coexist, if the peremptory human right does not oust the non-​peremptory inviolability, then the conclusion that the former is hierarchically superior to the latter may be simply legally wrong. There remains the possibility to deny that there is here any relevant conflict of norms. But that may be difficult if the public order approach is taken far enough.25 By the same token, problems of causality or intention also arise. Would it be correct to say that the peremptory norm on crimes against humanity –​being hierarchically superior –​has precedence over or voids any contrary treaty concerning the commerce with weapons or other items? We enter here onto the scene of delicate and intricate complicity issues.26 If the weapons served to the commission of crimes against humanity, and if that was the intention, such a treaty cannot be upheld. What does the hierarchy mean here: the suspension of the treaty? Its termination? Complete voidness, under the jus cogens mechanism? If it is voidness, why not say it? Why do we have to hide behind hierarchy? Let us reason further. If the weapons served the criminal end mentioned above but this was not the intention or knowledge when drafting the agreement, the latter may still 25

26

Especially if it is extended to its strongest versions: Compare Antonio A. Cançado Trindade “Jus Cogens: the Determination and the Gradual Expansion of its Material Content in Contemporary International Case-​Law” (2008) xxxv Course of International law organized by the OAS Inter-​American Juridical Committee in Rio de Janeiro. See also Antonio A. Cançado Trindade “International Law for Humankind: Towards a New Jus Gentium” (2005) 316 Recueil des Course de l’Academie d Droit International de la Haye 19, at 335. See Article 16 of the Articles on State Responsibility (above note 5).

32 Kolb be inapplicable or even void. But is that a correct conclusion? Can an incidental use of the weapons have such an effect on the norms of the treaty itself, where it is not written that the weapons will be used for the commission of such crimes? Still further, if the weapons may simply serve to the commission of crimes, is the treaty inapplicable or void? How close must the causal steps of implementation of the treaty norm be with regard to the breach of the jus cogens norm? Perhaps it is just the other way round: our own analysis above may be erroneous. It does indeed not necessarily flow from the concept of hierarchy that in case of conflict the higher norm automatically takes precedence –​let alone voids –​the lower norm. In all States, the constitution is the higher law in relation to ordinary legislation. However, this does not entail the consequence that the lower law is inapplicable by the sole fact of a conflict with a constitutional norm –​and even less that it is void. In most cases, the lower ordinary legislative norm will be inapplicable only if there is a procedure at some constitutional court provided with the appropriate powers. Otherwise, the lower norm will continue to be applied in the day-​to-​day legal practice and the higher norm will be sacrificed until the lower one is modified. This is: lex inferior “derogat” legi superiori. The lawyer knows of such inverted legal effects.27 Perhaps therefore the hierarchy in international law also does not entail such breathtaking consequences as to void or to discard the lower norm. But what is then its proper legal function? What is its value added? What does “hierarchy” then mean? Does it not convey the wrong ideas? In substance, either hierarchy means too much (discarding of all lower norms) or it means too little (performing some undefined function with regard to the lower norms according to context). In both cases, the concept is legally unfortunate. In the first alternative (discarding all lower norms), the term is incompatible with the positive law as it stands, since we observe that the lower norms are not simply pushed aside by the higher one. In the second alternative (performing some undefined function), the term is inexact since it does not define with

27

In Switzerland, where there is no constitutional procedure to void an anti-​constitutional law, the tribunals and other organs must apply that anti-​constitutional law as long as it remains in force, i.e. as long as the legislator has not modified it –​pace the constitution. See article 190 of the 1999 Swiss Constitution; on this provision, Y. Hangartner, M. E. Looser “Artikel 190” in B. Ehrenzeller, B. Schindler, R. J. Schweizer and K. A. Vallender (eds.) 3 Die schweizerische Bundesverfassung (Zurich, St.Gallen, 2014), at 3047.

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C)

28

33

precision the legal effect at stake. If that legal effect is voidness, this ought to be stated; if it is precedence, this ought to be said; if it is aggravated consequences for breach, this has to be made explicit. If the answer depends on the legal function (voiding a legal act, aggravating responsibility, etc.), the single term of “hierarchy” is again imprecise. To be sure, it could be argued that in view of the different legal consequences jus cogens may have, a single generic concept is the only viable alternative to a tedious list of possible specific effects. But this would not make the concept of “hierarchy” any better. In respect of the concrete operation of jus cogens, hierarchy conceals more than it clarifies. Occultation The last criticism which can be levied against the substantive view of jus cogens is that it tends to take all the floor and to expand into monopolistic arrogance. Jus cogens must then perforce be the “big thing”, and only the “big thing”, i.e., the great fundamental norms embodying the basic values of humanity. There is no bridge between this shining and shimmering Olympus and the vulgar realities of more mundane legal day-​to-​day life. But this position is a dogmatism, a petition of principle, an a priori assumption; it supposes what has to be proven. Why after all should one type of jus cogens, as eminent as it may be, oust all other types of peremptory mechanisms, protecting some degree of normative unity against the fragmentation into a plurality of special legal regimes? Why could there not exist various layers of jus cogens? But this becomes apparent only if one is ready to descend from the lofty halls of the “great thing” to discern that the “smaller bits” are not really casting a shadow on the great brother. They simply coexist, each one in its own order. In few words, this becomes acceptable only if one quits the moral highlands and is ready to slip into the modest tools of legal technique. Once again: the latter is not the enemy of the former. It is an addition to it. The small fish will not eat the big; for the moment it is rather the other way round, the big has eaten the small, as it often occurs. Why should some logical jus cogens norm not exist, e.g., pacta sunt servanda or the principle of good faith?28 These principles cannot be Several members in the ilc debate made this point. See, e.g. Murase (A/​c n.4/​s r. 3459), at 12 says the following: “It was perhaps naivety on his part, but his initial reaction had been to question why respect for State sovereignty was not at the top of the list of jus cogens norms, since sovereignty, or sovereign equality, was the most fundamental norm in

34 Kolb derogated from if only because any such derogation would suppose again the operation of the principle itself? Why could jus cogens norms not exist in the context of statutes of international organizations or organs, since the norms contained therein cannot be discarded by special agreements of some States (thus the icj will not accept to depart from its Statute, even if the parties to a procedure conclude an agreement to that effect, and even if the Court normally has to apply this agreement because of article 38(1)(a) of its Statute)? Why should international humanitarian law not have its own special jus cogens, when it does not allow the parties to contract out of the minimum guarantees provided for in the conventional provisions? All these legal situations are situated in the jus cogens-​family. Yet they are largely occulted and even not treated as jus cogens –​because they are not identical to the “big brother” under its powerful flag of article 53 vclt. 3

The Legal Technique View of Jus Cogens

The main issue is the starting point through which the phenomena are observed. There are many looking glasses and there is Alice. We must now free ourselves of cherished conceptions and attempt a fresh look into the subject matter. Three main aspects of jus cogens under the legal technique view can be emphasized. The first is the lex specialis non derogat principle. The second aspect is the differentiated legal effects of jus cogens according to its different types. Finally, a short historical survey will show that the legal technique view of jus cogens has a longstanding pedigree. 3.1 A Lex Specialis Non Derogat Principle First, under the lens proposed, the lens that sees jus cogens as a legal technique, the fundamental values of the international community, and the hierarchy are not anymore the starting points of analysis. Rather, the starting point becomes what has been associated for centuries of continental legal history with the very concept of jus cogens. This is the idea that some norms can be derogated from, i.e., can be replaced by other more specific rules in the inter se relations of some parties. The general norm then remains applicable in the relation with third parties but is replaced in the relationship between the

international law. Was not respect for international law or pacta sunt servanda supposed to be the basic norm, or Grundnorm, of international law and therefore a jus cogens norm”.

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parties to the special agreement by the rules of the latter. In contrast, there are norms that cannot be derogated from because they reflect some public utility (collective interest, public order). In this case, the special agreement will not prevail, but will normally be voided. The duality is jus dispositivum and jus cogens –​a continental lawyer learns about this difference in his or her first classes of introduction to the law. In this construction, the cardinal aspect of jus cogens is “non-​derogability”, i.e., the fact that the norm cannot be derogated from, cannot be normatively replaced by another legal régime. If one reflects starting from this epicenter, it becomes apparent that dispositive norms are based on the full operation of the lex specialis-​principle. The more special law will prevail over the more general. Jus cogens is based on the opposite principle. The operation of the lex specialis-​principle will be denied since the general norm must prevail non-​altered and applicable to all subjects without being fragmented into particular relationships enjoying priority of application. The legislator wants to uphold the general legal regime for all subjects of one class or for all subjects in the absolute, in order to protect some collective interest. Consequently, under this looking-​glass, dispositive norms are the ones on which the lex specialis-​principle operates and jus cogens norms are those norms on which it does not operate. In short terms, jus cogens in legal technique can be translated into: lex generalis cogentis derogat29 legi speciali. The ordinary rule is thereby inverted: most norms are dispositive; they allow the operation of the specialty-​principle. In contrast, some norms are peremptory; here the applicable rule is the opposite. This is the proper function of jus cogens under the guise of legal technique. Second, the legal technique view adopts a purely relative view of the nature of peremptoriness. Since the notion is linked to a legal technique (non lex specialis) and not to grandiloquent and universal fundamental values, the perspective becomes one of function more than status. Thus, when a rule does not allow derogation by a more limited number of parties than those bound by the more general position, the phenomenon is one of peremptoriness. This means that the peremptory position does not need to be embedded in a universal norm, i.e., a general custom or generally ratified treaty. It can be cast into a regional treaty, when the latter does not allow some States parties to it to depart from its rules by more special legal acts. This is true because the fundamental key to understating jus cogens is in this context the concept of “non-​derogability”. Derogation can occur at whatever normative level where there are on the one side more and on the other side less parties to a legal 29

Or, more precisely: voids.

36 Kolb act. Thus, jus cogens may appear at different shades at different levels, ranging from universal to local norms. The peremptory effect is then to be measured only towards the “inside” and not towards the “outside” of the normative act: it will prevail inter partes (with the voidness effect) but will not apply to third parties that are not bound by that special peremptory law (res inter alios acta). It is understandable that for most contemporary minds it is difficult to accept that such could be a “peremptory” norm: it does not prevail with regard to third parties and it can be trumped (often voided) by a more general peremptory norm in case of conflict. The difficulty flows from the fact that our minds have been formatted since ever by the “absolute view” of jus cogens. It then becomes extremely difficult to accept other phenomena, which seem alien to the entrenched positions. So, why should it be jus cogens? Simply because in the legal technique context the fundamental universal values are not the controlling element. The pivotal aspect is “derogation”. And the latter can occur at most different levels of numbers of parties, on a perfectly sliding scale. The effect is then, as said, towards the inner ring: if the Council of Europe agreements affirm that certain aspects of the rule of democracy are peremptory in Europe, this means that European States could not derogate from these rules, and perhaps such attempts at derogation would even lead to voidness. This mechanism is jus cogens. The fact that these democratic rules do not prevail for third (non-​European) States does not affect in any way this conclusion. The technique is and remains the same at whichever level it takes place. It stands to reason that this is not the jus cogens regulated in Articles 53 and 64 of the vclt. But these provisions do not purport to be exhaustive on international peremptory law. Third, under the legal technique view, the absolute nullity of the derogatory norm is not then the core of jus cogens. It is one of the legal consequences that can be attached to it, but it is not a definitional element –​this is explored further in section 3.2 below. We may recall that even under the canonic view, the effect of jus cogens is not always absolute nullity. Under the vclt, this consequence attaches only to derogatory norms adopted at the time the universal peremptory norm was already in force. In the opposite case, where the derogatory norm is adopted before the peremptory norm is established, the effect of jus cogens will be to terminate the derogatory norm with effect ex nunc.30 The same can be said of the inhibitory effect on the establishment of new customary international rules contrary to jus cogens norms, if that effect

30

Compare Mark E. Villiger Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers, 2009), at 793.

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is recognized.31 Still the same can be said –​more extensively –​for effects under the law of State responsibility, e.g. under articles 40-​41 of the Articles on State Responsibility. Therefore, even under the public order view, the effects of jus cogens are not limited to absolute voidness but vary according to context. This implies that jus cogens cannot be defined by its effects, since they are very variable. It has to be defined by some other notion, either substantive (fundamental values/​hierarchy) or formal (derogability). 3.2 Consequences of the Legal Technique View The legal technique view of jus cogens leads to a split of the notion of peremptoriness. Under this perspective, there are three types of jus cogens: (i) public order jus cogens (the fundamental norms of the international community); (ii) public utility jus cogens (the non-​derogable institutional agreements, e.g., the icj Statute; legal minimum standards protected against derogation, e.g. in ihl); (iii) logical jus cogens (pacta sunt servanda and good faith). The quality of peremptoriness is thus a galaxy and not a singularity reserved to one single type of norms of substantive nature. This has as a consequence that the effects of the peremptory nature also differ according to the type concerned. In the context of public order jus cogens, the effects32 are mainly the absolute nullity of contrary legal acts; the non-​separability of the vitiated clauses in a treaty or by analogy in any other legal act;33 the non-​operation (for some voidness) of any reservation to peremptory positions expressed in a treaty; possibly the non-​existence of a new customary norm contrary to the peremptory position (no acceptable opinio juris existing in such a case); the aggravated responsibility as enshrined in articles 40-​41 of the Articles on State Responsibility; and the non-​invocability of any circumstance precluding wrongfulness contrary to the peremptory position.34 Moreover, in case of a possible conflict of a peremptory norm with any other norm of international law, the latter shall be interpreted, as far as possible, in a way that is consistent with the peremptory norm.35 This effect is not peculiar to peremptory norms. It is a general rule of

31 32 33 34 35

See, in this regard, Draft Conclusion 14(1) of the Draft Conclusions on Peremptory Norms (above note 1). For an analysis of the various effects of such norms, compare Costelloe (above note 5) or Knuchel (above note 12), at 141 et seq.; See also Orakhelashvili (above note 3), at 133 et seq … As to unilateral acts, see Costelloe (above note 5), at 152 et seq. See Part Three of the Draft Conclusions on Peremptory Norms (above note 1). Ibid., at Draft Conclusion 20.

38 Kolb interpretation.36 The only difference is that in the case of peremptory norms, the possible intention of the parties to derogate from the general rule, which can be accepted in other situations, will not prevail in the legal reasoning. The legal presumption –​if not fiction –​must here be that there is no such intention of derogating. Other effects could in the future agglutinate around the ones accepted as an expression of positive law today, if international practice sanctions. Such consequences should not be deduced from some concept of jus cogens dogmatically supposed, but measured by the practice and legal opinion of States.37 Thus, it is not possible to “deduce” from the concept of “fundamental values/​hierarchy” that municipal laws contrary to a jus cogens position are null and void. Such a specific consequence would have first to be spelled out in relevant practice in order to see whether it can be considered to be established in positive international law. If it were otherwise, the legal operator could play the legislator by deducing more or less boundlessly significant legal consequences out of some a priori conception of peremptoriness. The subversive effect on the legal order and the ensuing legal uncertainly would be too great when handling such an uprooting concept as jus cogens, which allows the operator to brush away norms and legal positions expressly adopted by States. In the context of public utility jus cogens, there is no voidness of the contrary legal act. More precisely: there is no legal voidness, but functional voidness. The agreement of two States appearing at the icj and requiring the Court to do something contrary to its Statute38 is not legally void, since it does not conflict with a public policy position. This strongest reaction of the legal order to derogatory acts, i.e., absolute nullity, is reserved to situations where the parties intend to “flout” a public order or public policy position. This is manifestly not the case here. But the incompatibility with the Statute triggers a functional nullity. The agreement cannot be applied. The Court will be bound to ignore it and not to apply it as it would normally be obliged to do under article 38(1) (a) of the Statute, as law specially agreed between the parties, since it cannot act in a way which is contrary to the mandatory and peremptory provisions of its Statute. The Statute is at the disposal only of the totality of the parties to it; 36 37

38

Compare for example the Right of Passage over India Territory (Portugal v. India), icj Reports, 1960, p. 142. See correctly Carlo Focarelli, International Law as Social Construct: The Struggle for Global Justice (Oxford, 2012), at 315. See further Focarelli (above note 3), at 761; and Carlo Focarelli, “I limiti dello Jus Cogens nella giurisprudenza più recente” (2007) 90 Rivista di Diritto Internazionale 637, at 637 et seq. See the many examples and references to legal writings given in Kolb Peremptory International Law (above note 1), at 49 et seq. and Kolb Théroie du Ius Cogens (above note 1), at 209 et seq., with even more references.

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it cannot be altered by some parties in a single case; and it cannot be ignored by the Court, whose constitution it is. It is in that sense an integral treaty with an organ sanctioning this integrity by the non-​application of the contrary legal act. This goes further than the provision under article 41(1)(b) of the vclt.39 An agreement whose content is to motivate the Court to do something which the Court will not do remains a dead letter. This inapplicability is the sanction of public utility jus cogens. It is tantamount to a functional nullity of the contrary legal act. The same legal solution would ensue from the application of Articles 6/​6/​6/​7 of Geneva Conventions i-​i v of 1949. The derogatory agreement cannot prevail over the protections enshrined in the Geneva Conventions for the benefit of the protected persons. Thus, it is inapplicable and becomes a functional nullity. In the case of an improbable conflict between a public order jus cogens norm and a public utility jus cogens norm, the former would prevail and nullify the latter. This is not proof that the second cannot be jus cogens, as has been shown above by the relativity-​arguments. Finally, in the case of logical jus cogens, the potential contrary agreement is self-​defeating. It cannot derogate the principle it sought to brush aside. It is thus tantamount to an improper legal attempt to reach an impossible result. In effect, derogating by agreement to the principle pacta sunt servanda means nothing else than to apply that derogatory treaty, but this supposes the very principle pacta. Consequently, either the derogatory agreement is applied and then pacta is recognized at the second degree and not derogated from; or the derogatory treaty is not applied, and the principle pacta is not affected. In both cases, pacta has not been derogated from. The same can be said of the principle of good faith, which must always be supposed in legal dealings. Why should this be jus cogens? It is not such if one starts from the looking glass of “fundamental values /​hierarchy”, since the principles here at stake are not public order issues in the sense of legislative choices. But if one attaches to the “non-​derogability” view, there is no doubt that we are confronted with a peremptory phenomenon. The reason for which a norm cannot be derogated from is not relevant under this perspective. The only point is the legal technique of non-​derogation. The preceding developments show that qualifications as to what jus cogens entails should be read in context and attributed to the type to which they relate. It may perhaps be said that jus cogens does not cover “trivial” legal positions

39

Compare Anne Rigaux and Denys Simon “Article 42” in Olivier Corten and Pierre Klein (eds.) The Vienna Convention on the Law of Treaties, A Commentary, Vol. ii (Oxford, 2011), at 986 et seq. and 1008.

40 Kolb but only fundamental morally imbued norms.40 It however stands to reason that such a view could only apply –​if at all –​to the first class of jus cogens norms, i.e., public order jus cogens. It is not a signpost of any jus cogens norm. If a norm does not seem to be sufficiently fundamental –​to whom and according to what criteria? –​this does not imply that it could not be recognized as peremptory. In municipal law and in the context of public utility jus cogens norms, there are many “trivial” norms whose technique-​peremptory character is not in doubt. Even a tiny norm of the Rules of icj, to the extent that parties to a dispute cannot alter it, is peremptory in the sense mentioned above.41 3.3 Historical Pedigree of the Legal Technique View It would be erroneous to think that the legal technique view presented in the preceding lines is an idiosyncratic invention of the present author. In fact, it is nothing more than the application to the international legal order of concepts which have been used for centuries –​even in medieval societies, almost as decentralized as the international society –​in continental legal history.42 In Roman Law,43 there was a fundamental distinction between ius publicum and ius privatum, the former relating to the public affairs of the State and the latter to the private relationships of the individuals. The ius publicum is based on public interests and is thus non-​derogable law (“ius publicum privatorum pactis mutari non potest”); the ius privatum within the State legislation is based on private interests and can in most cases be altered by the parties as they see fit. From there certain consequences flowed. First, the peremptory character of norms is progressively linked to the whole area of public law and not just to a number of fundamental norms of constitutional nature; its basis is a law expressing collective or public interests and not merely private ones. Second, this public interest in the norm commands its non-​derogability; the legal

40

41 42 43

Compare Asif Hameed “Unravelling the Mystery of Jus Cogens in International Law” (2014) 84 British Yearbook pf International Law 52, at 75 et seq. The fact that Hameed treats as trivial rules articles 6/​6/​6/​7 of the Geneva Conventions of 1949 is revealing: these are anything but trivial rules, they are meant to protect the protected persons against inhuman acts during times of armed conflict. See also International Court of Justice Rules of Court, at article 101, with a special procedure for modifying certain rules (but not others). Compare Geneviève Guyomar Commentaire du règlement de la Cour Internationale de Justice (Paris, 1983), at 635 et seq. For fuller developments, compare Kolb, Théorie du Ius Cogens (above note 1), at 191. Compare the ground-​breaking work of Max Kaser “Ius publicum und Ius Privatum” (1986) 103 Zeitschrift der Savigny-​Stiftung für Rechtsgeschichte, Romanistische Abteilung 1, at 1 et seq. and 75 et seq. See also Antonio Guarino Diritto privato romano (8th Edition,Napoli,1988), at 136 et seq.

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regime must remain unitary and the same for all, and not be fragmented into different special legal relationships. Third, the nullity of the contrary norm is not a definitional element of jus cogens but only its main consequence. Thus, other effects of peremptory norms can be admitted. This is still the notion of jus cogens used in the municipal law of the continental European States. During the Middle Ages, especially in the towns of Italy, emerged the questions of the relationship between the ius proprium (statuta, the statutes of the autonomous towns) and the ius commune (the Roman-​Canonic Law).44 This relationship is one between a general law (ius commune) and a special law (ius proprium). It is therefore not surprising that issues of jus cogens appeared. The general rule applied was as follows: the general law (ius commune) can be derogated by the special law (statutes) and the latter then takes priority (“ius particulare praevalet ius magi generali”). However, since the common law is perceived as more valuable (i.e., more equitable, imbued with legal reason), the intention of derogating from it is not to be presumed and is narrowed as much as feasible by a harmonizing interpretation. However, it is also recognized that some rules of the general law are not derogable, because they protect important collective interests. For example, this was the case of a series of rules relating to remedies a subject could use in order to seize the Curia in Rome. They could not be limited by special legislation. These rules on remedies were peremptory. A contextual element has to be keenly noted here. Contrary to Roman Law, where the derogatory act emanates from contracts between private parties, the derogatory act is here a source of objective law embodied in a statute of a town. Hence, the source to be trumped or voided is not of the same nature: it is a subjective legal act there, an objective legislation here. The difference lies in the social context. In the Roman society, there was the State and the individual. In the Middle Ages context, we approach the social configuration of the international society with a series of de facto quite independent towns, i.e., quasi-​sovereigns, adopting their own legislation. Yet these legislations remain under the sway of some “higher” rules of the Empire, enshrined in the general Roman-​Canonic Law. These short remarks on the historical evolution of the concept in continental Europe show that jus cogens has ripened under the sun of “public utility” 44

Compare the still canonic and huge work of Woldemar Engelmann Die Wiedergeburt der Rechtskultur in Italien durch die wissenschaftliche Lehre (Leipzig, 1938), at 79-​80 and 105-​ 106 (using the notion of “peremptory law”, zwingendes Recht), and, generally at 132 et seq.. See also the careful analysis of Manilo Bellomo The Common Legal Past of Europe (1000–​ 1800) (Washington D. C., 1995), at 55 et seq. On the notion of public interest in this context, see Mario Sbriccoli L’interpretazione dello statuto (Milan, 1969), at 445 et seq.

42 Kolb rather than under the one of fundamental values. It is not impossible to try to make this broader concept fruitful also for international law, enriching the analysis with other aspects of peremptoriness than the ones generally perceived under the public order lens. In any case, the historical analysis shows that these public utility issues were traditionally considered under the guise of jus cogens and that the notion is thus not alien in this context –​quite to the contrary. 4

Conclusion

What could the reader take with him or her from the preceding gymnastics? This must obviously be left open by the present writer. However, some aspects can here be emphasized. First, the legal technique view is not opposed to the traditional substantive view on jus cogens. It seeks to provide a complement in unveiling the whole galaxy of peremptory phenomena instead of restricting it to one class, be it the most eminent one. As can be seen, the technical view can and must be applied to public order jus cogens norms: these norms cannot be derogated from, and they induce the nullity of the contrary legal act. In other words, they cast away the principle lex specialis. The legal technique consequently applies fully to public order jus cogens, except for the fact that the latter has also some other legal effects than non-​derogating the general norm and voiding contrary legal acts. In short, the issue is about broadening the perspective by inclusion, and not about narrowing it by exclusion. Public order norms have their place within the bounds of the legal technique perspective. Second, the problem with the current public order view (“fundamental values/​hierarchy”) is its concrete treatment in legal writings. This treatment is in many cases highly unsatisfactory: legal doctrine most time stop short at the point where the true legal questions arise. Generally, authors are content to engage in colorful ideological discourse –​sometimes very militant –​and shy away from getting entangled in the full picture of technical legal analysis that ought to be undertaken. The criticism voiced against the public order view in this short contribution goes precisely to this insufficient legal clothing of the concept. It is not intended to deny the status and pedigree of public order jus cogens, which is the most eminent and visible part of the peremptory phenomenon. But we are still far from having a reliable and comprehensive legal construction –​and it must be added that while the recent works of the ilc have in a masterly way restated the existing positions, they have not cast much light on the really difficult issues.

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Third, a better effort has to be made also in the other main area of international jus cogens, namely in the public utility sector, to better understand the concrete mechanisms at stake and to provide examples of the functioning of legal technique in this field. This supposes a study of the law of international organizations and organs under the lens mentioned –​the fact that the organs cannot depart from the legal duties under their constitutive or other instruments even if invited by special agreements –​and also the study of some other areas where such peremptory positions apply, such as ihl. For the time being, such a study has yet to be performed. The limelight has always been for the “big brother”, the eminent and pre-​eminent jus cogens under public order. Perhaps some more attention should now be devoted also to other areas of the jus cogens-​family, in order to cast more light on their shadowy valleys. In short terms, significant work still needs to be performed to elucidate or indeed to unravel the “mystery” of jus cogens.

Chapter 3

Peremptory Norms of General International Law (Jus Cogens) and the Fundamental Values of the International Community Patrícia Galvão Teles 1

Introduction

The aim of the present chapter is to assess the relationship between peremptory norms of general international law (jus cogens) and the fundamental values of the international community. More specifically, it intends to address the question of whether the content of jus cogens norms reflects the fundamental values of the international community and if these norms have emerged to protect such values. While the answer to this question would seem quite straightforward and in the affirmative, the issue has raised discussions in academic literature as well as in the context of the current and, at the time of writing, still on-​going work of the International Law Commission (“ilc”) regarding the topic of peremptory norms of general international law (jus cogens). In this regard, the ilc Draft Conclusions on Peremptory Norms, adopted on first reading in 2019, provide that jus cogens norms reflect and protect fundamental values of the international community.1 Before looking at the ilc’s current work, this chapter shall first discuss the meaning of fundamental values and their relationship with peremptory norms, the doctrinal views regarding a formal vs. material hierarchy approach to jus cogens, and the positions that have been taken by international courts and tribunals. It will then look at the previous works of the ilc to see how it viewed the relationship between jus cogens and fundamental values of the international community. It will further examine the position that prevailed in Draft Conclusion 3 adopted on First Reading. To conclude, the chapter will refer briefly to the positions of States in relation to that 1 Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), Chapter v.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_004

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draft conclusion and anticipate what the expectations should be regarding this particular matter for the Second Reading that the ilc will conclude in 2022. 2

The Meaning of Fundamental Values of the International Community and its Relationship with Peremptory Norms of General International Law ( Jus Cogens)

The definition of peremptory norms of general international law (jus cogens) was established in Article 53 of the Vienna Convention on the Law of Treaties in the following manner: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. While it is true that the text of Article 53 does not refer specifically to fundamental values, the most common view is that jus cogens norms have some special characteristics that distinguish them from other rules of international law and hence account for their superiority. This superiority is expressed by a prohibition of derogation, the invalidity of rules that derogate from them, and the possibility of modifying such norms only by subsequent norms having the character of jus cogens. Writing at the time when the ilc was finalizing its work on the Law of Treaties and just before the adoption of Article 53 during the Vienna Diplomatic Conference of 1969, Alfred Verdross –​who was the President of this Diplomatic Conference –​highlighted the link between peremptory norms and the higher interests of the whole international community in the following terms: (…) in the field of general international law there are rules having the character of jus cogens. The criterion for these rules consists in the fact that they do not exist to satisfy the needs of the individual states but the higher interest of the whole international community. Hence these rules

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are absolute. The others are relative, because the rights and obligations created by them concern only individual states inter se.2 Thus, besides jus cogens norms’ hierarchical superiority in view of their non-​ derogability, as well as their universal applicability by virtue of deriving from general international law (mostly from customary international law and from the other sources of international law that can also produce norms of a general character and application), the author shares this view that jus cogens norms are linked to the fundamental values of the international community and their protection, and for that purpose they are object of a special place in the international legal order. In fact, in the author’s perspective, this link with the international community’s fundamental values is a unique and distinguishing feature of jus cogens norms; one that also justifies, on the one hand, the limited number of peremptory norms and, on the other hand, their fundamental importance and non-​derogability. What characterizes a jus cogens norm is not its source in terms of formal sources of international law, nor the fact that it comes from a special or superior source. Rather, it is that a jus cogens norm intends to protect values that the international community as a whole recognises as fundamental and therefore as non-​derogable in any form. It has to do with the value and content of the norm, above all. To this end, Antonio Cassese, in two passages of his edited book Realizing Utopia: The Future of International Law, observes, “[t]‌he fundamental values of the world society are those enshrined in that core of rules that constitute the international jus cogens, a set of peremptory norms that may not be derogated from.”3 Undoubtedly, he continues, “[j]us cogens is indicative of a novel approach to international relations, where ‘community concerns’ to some extent prevail over states’ self-​interests.”4 And as E. Jiménez de Aréchaga had emphasised a few decades earlier: [w]‌hat … is the essence of the rules of jus cogens? The international community recognizes certain principles which safeguard values of vital importance for humanity and correspond to fundamental moral

2 Alfred Verdross “Jus Dispositivum and Jus Cogens in International Law” (1966) 60 American Journal of International Law 55, at 58. 3 Antonio Cassese “A Plea for a Global Community Grounded in a Core of Human Rights” in Antonio Cassese (ed.) Realizing Utopia: The Future of International Law (Oxford University Press, 2012) 136, at 139. 4 Antonio Cassese “For an Enhanced Role of Jus Cogens” in Antonio Cassese (ed.) Realizing Utopia: The Future of International Law (Oxford University Press, 2012) 158, at 160.

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principles: these principles are of concern to all states and protect interests which are not limited to a particular State or group of States, but belong to the community as a whole.5 These most fundamental values are those that are at the core of the contemporary international legal order, as it developed over the last 75 years in the post-​ Second World War period and with the creation of the United Nations which today undoubtedly embodies the international community: the dignity of the human being, the self-​determination of peoples and the prohibition of the use of force in international relations. These three fundamental and foundational values are the basis of the core rules that have been most widely considered as having the status of jus cogens: the prohibition of aggression; the prohibition of genocide; the prohibition of crimes against humanity; the basic rules of international humanitarian law; the prohibition of racial discrimination and apartheid; the prohibition of slavery; the prohibition of torture; and the right of self-​determination. For a restatement of such core rules, see the illustrative list included by the ilc in the draft conclusions on peremptory norms of general international law (jus cogens) adopted in first reading in 2019.6 The enunciation of these three fundamental values and corresponding peremptory norms does not, however, preclude that other such values and norms exist at present or may develop in the future, such as, respectively, the sovereign equality of States or the protection of the environment.7 This chapter is not the place, however, to discuss which other rules have also or may have in the future the status of peremptory norms of general international law (jus cogens), in spite of the importance of such fascinating discussion. 3

The Formal vs. Material Hierarchy Doctrinal Approaches to Peremptory Norms

There have been divergent positions in doctrine overtime regarding the link between jus cogens norms and fundamental values, with opposite views being

5 Eduardo Jiménez de Aréchaga “International Law in the Past Third of a Century” (1978) 159 Collected Courses of the Hague Academy of International Law 1, at 64. 6 See Annex to Draft Conclusions on Peremptory Norms (above note 1). 7 On jus cogens and the environmental protection see in this volume Nilufer Oral “Environmental Protection as a Peremptory Norm: Is it Time?” (Chapter 20).

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taken for instance by Robert Kolb,8 on the one hand, and Michel Virally,9 Lauri Hannikainen,10 Pierre-​Marie Dupuy11 and Christian Tomuschat,12 on the other. While one strand of the doctrine concentrates on the effects of jus cogens norms, specifically on their non-​derogable character, another underlines the substantive nature of jus cogens norms as constitutional principles serving the general interests of the whole international community. Aristoteles Constatinides summarizes well this doctrinal debate: [t]‌he lively academic debate reveals various approaches on the place and role of jus cogens in the international legal order. Apart from the avowed positivists still denying the concept and its role in international law, scholars range from those viewing jus cogens as centred on the effect of non-​derogability, most of them linking it with public policy, to those who consider jus cogens as substantive rules of higher hierarchical status and as constitutional norms protecting the fundamental values of the international community.13 Andrea Bianchi offers an interesting explanation for these different approaches: To hold that jus cogens is nothing but a legal technique aimed at preserving the formal integrity of the system by characterizing as inderogable some of its procedural norms is tantamount to overlooking what the function performed by jus cogens was meant to be. The quest for value and interest-​sharing, attested to by the priority accorded to some international rules over others, cannot be quickly disposed of as an act of faith, 8

9 10 11 12 13

Robert Kolb Théorie du Ius Cogens international (Graduate Institute Publications, 2001); Robert Kolb “The Formal Source of Ius Cogens in Public International Law” (1998) 53 Zeitschrift für öffentliches Recht 69; Robert Kolb Peremptory International Law –​Jus Cogens: A General Inventory (Bloomsbury, 2015), at 40. Michel Virally Le droit international en devenir: Essais écrits au fil des ans (Graduate Institute Publications, 1990); Michel Virally “Réflexions sur le ‘Jus Cogens’ (1966) 12 Annuaire français de droit international 5. Lauri Hannikainen Peremptory Norms ( Jus Cogens) in International Law: Historical Development, Criteria, Present Status (University of Helsinki, 1988), at 1–​4. Pierre-​Marie Dupuy “L’unité de l’ordre juridique international” (2002) 297 Collected Courses of the Hague Academy of International Law 9, at 281. Christian Tomuschat “The Security Council and jus cogens” in Enzo Cannizzaro (ed.) The Present and Future of Jus Cogens (Sapienza, 2015), at 8. Aristotle Constatinides “Jus Cogens” in André Nollkaemper, August Reinisch, Ralph Janik, and Florentina Simlinger (eds.) International Law in Domestic Courts: A Casebook (Oxford, 2019), at 278–​279.

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the “messianic dimension” of which should not divert the attention of the positive lawyer. (…) By imposing shared values and aspirations applicable to all on a global scale, [jus cogens] has also unleashed opposite forces aimed at fostering parochial interests.14 Robert Kolb has probably been the leading voice in doctrine advocating an approach where jus cogens merely reflects a formal hierarchy of norms and not a material one (i.e. one that reflects the importance of fundamental values).15 In his words: “… jus cogens is concerned with the relationship lex generalis/​lex specialis and not with the relationship lex superior/​lex inferior.”16 In fact, the notion of hierarchy should be avoided as “[i]‌t tends to create the wrong impression that the superior norm will enjoy priority of application simply because of its superiority (…) [and that] jus cogens norms will always prevail over other, contrary objective norms of international law”.17 Instead, Kolb has suggested focusing on the central aspect of “non-​derogability”18 and on the fundamental aspect of jus cogens as a legal technique. Following his reasoning, jus cogens norms reflect a phenomenon, not of hierarchy, but rather one of “specific priority of certain norms, normally through nullity, and centred, at least in the context of sources, on the key concepts of derogability/​non-​derogability.”19 Irrespective of the merits of this perspective, the prevailing doctrinal view can be summarised in the words of Joachim Frowein: [a]‌fter World War ii the international community became conscious of the necessity for any legal order to be based on some consensus concerning fundamental values which are not at the disposal of the subjects of this legal order. As Mosler rightly stressed, there is a close connection between ius cogens and the recognition of a “public order of the international community”.20

14 15 16 17 18 19 20

Andrea Bianchi “Human Rights and the Magic of Jus Cogens” (2008) 19 European Journal of International Law 491, at 495–​496. See in this volume Robert Kolb “Peremptory Norms as a Legal Technique Rather than Substantive Super Norms” (Chapter 2). See Robert Kolb General Inventory (above note 8), at 35. Id., at 35–​36. Id., at 37. Id., at 37. Jochen A. Frowein “Jus Cogens” in Rudolf Bernhardt (ed.) Encyclopedia of Public International Law Vol. 7 (Elsevier Science, 1984), at 328.

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This position is echoed in the writings of many other authors, such as Antônio Augusto Cançado Trindade, Erika de Wet, Daniel Costelloe and Alexander Orakhelashvili, to quote but a few.21 At the core of this predominant doctrinal view is the premise that jus cogens norms have a superior hierarchical status22 insofar as any derogation from such norms “… would be seriously detrimental to the international legal system and how that system, and the society it serves, define themselves.”23 According to Antônio Augusto Cançado Trindade, “… jus cogens presents itself as the juridical expression of the very international community as a whole, which, at last, takes conscience of itself, and of the fundamental principles and values which guide it.”24 Erika de Wet has developed further the link between fundamental values and peremptory norms in the following manner: [p]‌eremptory obligations are regarded as a manifestation of the fundamental values of the international community, which exist independently from the will of States. These values are closely linked to human dignity and human rights and are described by some as constituting international public policy. In accordance with this line of reasoning, peremptory norms thus stem from a separate source that is hierarchically superior to other sources of international law and represent constitutional norms of the international legal order.25

21 See, inter alia, Antônio Augusto Cançado Trindade “International Law for Humankind: Towards a New Jus Gentium” (2005) 317 Collected Courses of the Hague Academy of International Law 217; Erika De Wet “The International Constitutional Order” (2006) 55 International and Comparative Law Quarterly 51; Daniel Costelloe Legal Consequences of Peremptory Norms in International Law (Cambridge, 2017), at 1; Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2008). 22 See, inter alia, Dinah Shelton “Normative Hierarchy in International Law” (2006) 100 American Journal of International Law 291; Juan Antonio Carillo Salcedo “Reflections on the Existence of a Hierarchy of Norms in International Law” (1997) 8 European Journal of International Law 583; Ronald St. John Macdonald “Fundamental Norms in Contemporary International Law” (1987) 25 Canadian Yearbook of International Law 115. 23 Michael Byers “Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules” (1997) 66 Nordic Journal of International Law 211, at 212. 24 Antônio Augusto Cançado Trindade “Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-​Law” (2008) xxv OAS Inter-​American Juridical Committee Course of International Law 3, at 14. 25 Erika De Wet “Sources and the Hierarchy of International Law: The Place of Peremptory Norms and Article 103 of the UN Charter within the Sources of International Law” in Samantha Besson and Jean D’Aspremont (eds.) The Oxford Handbook of the Sources of International Law (Oxford, 2017), at 632.

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The link between fundamental values and jus cogens has also been pictured as a driving force behind the integration of the community of States and the idea of a world constitution. To this end, Pemmaraju Sreenivasa Rao expressed the view that “[jus cogens] has … been a potent instrument in integrating the community of States and the peoples they represent into a composite legal community of mankind” since it sets out particular norms as being of “higher and fundamental value to the community.” For Rao, “[t]‌he higher purposes and values represented by” jus cogens norms “constitute the basic elements of a world ‘constitution’.”26 4

The Positions Taken by International Courts and Tribunals

The existence of jus cogens has gradually, in the last fifty years, found support in the judicial practice of international courts and tribunals, including at the regional level. Yet, the International Court of Justice (icj) and other international courts and tribunals have not taken a fully clear position on whether there is a connection between jus cogens and fundamental values, though –​ as it will be discussed –​it seems implicit in their findings, for example, on genocide and torture, that peremptory norms of general international law (jus cogens) are linked to the protection of fundamental values of the international community. International Courts and Tribunals and the Recognition of Jus Cogens Historically, the icj has carefully and deliberately avoided endorsing the notion of jus cogens.27 In its 1969 Judgment in North Sea Continental Shelf, for instance, the icj refrained from “pronounc[ing] upon any question of jus cogens”.28 Likewise, in Military and Paramilitary Activities in and against Nicaragua the Court declined the opportunity to align with the International Law Commission’s view that the prohibition of the use of force has the 4.1

26

27 28

Pemmaraju Sreenivasa Rao “The Concept of International Community in International Law: Theory and Reality” in Isabelle Buffard, James Crawford, Alain Pellet and Stephan Wittich (eds.) International Law Between Universalism and Fragmentation (Martinus Nijhoff, 2008) 85, at 93–​94. Andreas L. Paulus “Jus Cogens in a Time of Hegemony and Fragmentation –​An Attempt at a Re-​appraisal” (2005) 74 Nordic Journal of International Law 297, at 307. North Sea Continental Shelf Cases (Federal Republic of Germany/​Denmark; Federal Republic of Germany/​Netherlands), icj Reports 1969, 3, at para. 72.

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character of jus cogens.29 Similarly, in 2002, in the case Arrest Warrant of 11 April 2000, it failed to respond to Belgium’s argument that immunities accorded to a Minister of Foreign Affairs for crimes against humanity violated a jus cogens norm.30 Instead, the icj has, on several occasions, avoided the notion of jus cogens and used rather the concepts of “obligations erga omnes”31 and “intransgressible principles of international customary law”.32 While the icj clarified the particular quality of jus cogens norms in its 1996 Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons when it stated that “[t]‌he question whether a norm is part of the jus cogens relates to the legal character of the norm”,33 it was only in 2006 that it explicitly acknowledged the existence of jus cogens for the first time. In its Judgment on Preliminary Objections in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), the Court recognised that the prohibition of genocide has the character of a peremptory norm of general international law, after reaffirming the erga omnes nature of the rights and 29

30 31

32 33

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, icj Reports 1986, 14, at para. 190. Paragraph 190 reads as follows: “A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that ‘the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens’…… Nicaragua in its Memorial on the Merits submitted in that case states that the principle prohibiting the use of force embodied in Article 2, paragraph 4, of the Charter of the United Nations ‘has come to be recognized as jus cogens’. The United States, in its Counter-​Memorial on the questions of jurisdiction and admissibility, found it material to quote the views of scholars that this principle is a ‘universal norm’, a ‘universal international law’, a ‘universally recognized principle of international law’, and a ‘principle of jus cogens’. Case Concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), icj Reports 2002, p. 3, at 23–​26. Barcelona Traction, Light and Power Company, Limited (New Application) (Belgium v Spain), Second Phase, icj Reports 1970, p. 3, at para. 33; East Timor (Portugal v. Australia), icj Reports 1995, 90, at para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2004, p. 136, at paras. 155 157; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, p. 156, at para. 180. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Reports 1996, 226, at paras. 79 and 83. Id., at para. 83.

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obligations enshrined in the Genocide Convention.34 The icj subsequently went further by categorically recognising the jus cogens character of certain principles, namely that of the prohibition of torture in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal).35 The concept of jus cogens has been more actively engaged within Judges’ separate and dissenting opinions. As early as 1966, Judge Tanaka asserted in his dissenting opinion in South West Africa that the principle of equality, “being in the nature of natural law”, has a “supra-​constitutional character”, which places it “at the summit of hierarchy of the system of law”.36 In their dissenting opinions to the Judgment rendered in Arrest Warrant of 11 April 2000, both Judge Al-​ Khasawneh and Judge ad hoc Van Den Wyngaert advocated for the hierarchical superiority of the jus cogens norm of the prohibition of crimes against humanity over the rules on immunity.37 In his dissenting opinion to the icj’s 1996 advisory opinion in Legality of the Threat or Use of Nuclear Weapons, Judge Koroma implicitly shed light on the link between jus cogens norms and the value of the international community when he asserted that the Geneva Conventions of 1949 have “humanitarian underpinnings” and “… are deeply rooted in the traditions and values of member States of the international community”.38 In Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Judge ad hoc Dugard rendered a separate opinion in which he noted the discrepancy between the icj’s propensity to recognize the notion of obligation erga omnes and the length of time it took the Court to support the notion of jus cogens.39 Perhaps even more importantly, he went further than the icj by underlining that jus cogens norms are hierarchically superior to other norms in the international legal order for the very reason that they “give legal form to the most fundamental policies or goals of the international

34 35 36 37 38 39

Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, icj Reports 2006, p. 6, at para. 64. Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, icj Reports 2012, p. 422, at para. 99. South West Africa (Ethiopia v South Africa; Liberia v South Africa) Second Phase, icj Reports 1966, 250, Dissenting Opinion of Judge Tanaka, at 306. Arrest Warrant of 11 April 2000 (above note 30), Dissenting Opinion of Judge Al-​Khasawneh, at para. 7; and Dissenting Opinion of Judge ad hoc Van Den Wyngaert, at paras. 28 et seq. Legality of the Threat or Use of Nuclear Weapons (above note 32), Dissenting Opinion of Judge Koroma, at 573. Armed Activities on the Territory of the Congo (above note 34), Separate Opinion of Judge ad hoc Dugard, at paras. 4 and 11.

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community”.40 On the other hand, Judge Cançado Trindade has, in numerous dissenting and separate opinions at the icj, expanded on the importance of jus cogens,41 identifying jus cogens with general principles of law enshrining common and superior values shared by the international community as a whole or as “the juridical expression of the international community as a whole”42 and thereby concluding that “jus cogens ascribes an ethical content to the new jus gentium, the international law for humankind”.43 In the Inter-​American Court of human rights, discussed further below, Judge Cançado Trindade had also observed that jus cogens constitutes “an unequivocal manifestation of … the universal juridical conscience”.44 At the regional level, there are judicial developments worth noticing that also point to a recognition of the concept of jus cogens. In the European Union (EU), in the Kadi case the Court of First Instance of the European Court of Justice, found that it was: empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of 40 41

42 43 44

Armed Activities on the Territory of the Congo (above note 35), Separate Opinion of Judge ad hoc Dugard, at para. 10. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), icj Reports 2015, 3, Dissenting Opinion of Judge Cançado Trindade, paras. 318–​319, 536; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, icj Reports 2016, p. 255, Dissenting Opinion of Judge Cançado Trindade, at para. 190 et seq; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan), Jurisdiction and Admissibility, icj Reports 2016, p. 512, Dissenting Opinion of Judge Cançado Trindade; Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, icj Reports 2016, 833, Dissenting Opinion of Judge Cançado Trindade, at para. 186 et seq.; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), icj Reports 2012, 99, Dissenting Opinion of Judge Cançado Trindade, at para. 288 et seq; Questions relating to the Obligation to Prosecute or Extradite (above note 35), Separate Opinion of Judge Cançado Trindade, at paras. 82 et seq.; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (above note 31), Separate Opinion of Judge Cançado Trindade, at paras. 120 et seq. Legal Consequences of the Separation of the Chagos Archipelago (above note 32), at para. 195. Questions relating to the Obligation to Prosecute or Extradite (above note 36), at para. 182. Juridical Condition and Rights of Undocumented Migrants, Judgement of the Inter-​ American Court of Human Rights, 17 September 2003, Concurring Opinion of Judge Cançado Trindade, at para. 28.

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international law, including the bodies of the United Nations, and from which no derogation is possible.45 With regard to the Inter-​American Court of Human Rights (IACtHR),46 in Juridical Condition and Rights of Undocumented Migrants”, the IACtHR stated in its Advisory Opinion that non-​discrimination is jus cogens by virtue of being “intrinsically related to the right to equal protection before the law, which, in turn, derives directly from the oneness of the human family and is linked to the essential dignity of the individual” and because “the whole legal structure of national and international public order rests on it and [because] it is a fundamental principle that permeates all laws”.47 International Courts and Tribunals and the Link between Jus Cogens and Fundamental Values It is the judgments of the icj in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide cases,48 and its Advisory Opinion on Reservations to the Genocide Convention,49 as well as the judgment of the International Criminal Tribunal for the Former Yugoslavia (icty) 4.2

45 46 Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice, 21 September 2005, at para. 226. See also Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgement of the Court of First Instance of the European Communities, 21 September 2005, at para. 277; Faraj Hassan v. Council of the European Union and Commission of the European Communities, Judgement of the Court of First Instance of the European Communities, 12 July 2006, at para. 92. 46 See also, Victims of the Tugboat “13 de Marzo” v. Cuba, Judgement of the Inter-​American Commission on Human Rights, 16 October 1996, para. 79: “the right to life, understood as a basic right of human beings enshrined in the American Declaration and in various international instruments of regional and universal scope, has the status of jus cogens. That is, it is a peremptory rule of international law, and, therefore, cannot be derogable. The concept of jus cogens is derived from a higher order of norms established in ancient times and which cannot be contravened by the laws of man or of nations. The norms of jus cogens have been described by public law specialists as those which encompass public international order. These are the rules that have been accepted, either explicitly in a treaty or tacitly by custom, as necessary to protect the public interest of the society of nations or to maintain levels of public morality recognized by them.” 47 Juridical Condition and Rights of Undocumented Migrants, Judgement of the Inter-​ American Court of Human Right, 17 September 2003, at paras. 100-​101. 48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), icj Reports 2015, p. 3. 49 Reservations to the Convention on Genocide, Advisory Opinion, icj Reports 1951, p. 15, at 23.

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in Prosecutor v. Furundžija,50 that together provide a solid ground to argue that, even if implicitly, international courts and tribunals have considered that norms of jus cogens protect the fundamental values of the international community. In Bosnia and Herzegovina v. Serbia and Montenegro and Croatia v. Serbia, the icj shed light on the values characterizing jus cogens, even without explicitly referring to the concept. It did so by reasserting the values underpinning the Genocide Convention that it described in its 1951 Advisory Opinion on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide as “manifestly adopted for a purely humanitarian and civilizing purpose. … to safeguard the very existence of certain human groups and … to confirm and endorse the most elementary principles of morality”.51 It also did so when clarifying the grounds on which it had jurisdiction, noting that “it has no power to rule on alleged breaches of other obligations under international law, not amounting to genocide, particularly those protecting human rights in armed conflict” and that this was the case “even if the alleged breaches are of obligations under peremptory norms, or of obligations which protect essential humanitarian values, and which may be owed erga omnes.”52 In Prosecutor v. Furundžija, the icty recognised the hierarchical superiority of jus cogens norms when it stated that jus cogens is “a norm that enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules”, and in particular, the prohibition of torture as a jus cogens norm, is an “absolute value from which nobody must deviate …”.53 More importantly, the icty expressly linked the status of the prohibition of torture as a jus cogens norm to the “importance of the values it protects”, noting that “[c]‌learly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community”.54 This passage from Furundžija has been quoted by the European Court of Human Rights in the Al-​Adsani v. United Kingdom case when it decided to recognise the immunity of Kuwait in a civil proceedings where the victim, Sulaim

50

Prosecutor v. Furundžija, Judgement of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia, 10 December 1998, at paras. 15-​154. 51 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (above note 41), at para. 161. 52 See Id., at para. 147; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (above note 41), at para. 85. 53 Prosecutor v. Furundžija (above note 50), at paras. 153-​154. 54 Id., at para. 154.

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Al-​Adsani, was seeking compensation after having been tortured by order of a Kuwaiti Sheikh.55 The controversy surrounding the nine-​to-​eight majority decision gave rise to strong dissent on the part of Judges Rozakis and Caflisch joined by Judges Wildhaber, Costa, Cabral Barreto and Vajić who, jointly argued that: The acceptance … of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions … Due to the interplay of the jus cogens rule on the prohibition of torture and the rules on State immunity, the procedural bar of State immunity is automatically lifted, because those rules, as they conflict with a hierarchically higher rule, do not produce any legal affect.56 Other international courts have recognized the link between fundamental values and jus cogens norms. In Goiburú, et al. v. Paraguay for instance, the IACtHR stated that offences prohibited by jus cogens “harm essential values and rights of the international community”.57 Similarly, in Michael Domingues v. United States, the Inter-​American Commission on Human Rights, though not a judicial body, has stated that jus cogens norms “derive their status from fundamental values held by the international community” and that any violation of such norms ultimately “shock the conscience of humankind”.58 5

The Question in Previous Works of the International Law Commission

As it was said earlier, one might get the impression that the drafting of Article 53 of the Vienna Convention on the Law of Treaties seems to be silent on the link between peremptory norms and fundamental values. Yet, in the author’s view the International Law Commission has taken a position on the fact that

55 56 57 58

Al-​Adsani v. United Kingdom, Judgement of the European Court of Human Rights, 21 November 2001, at para. 30. Id., at para. 3. Goiburú et al v Paraguay, Judgement of the Inter-​American Court of Human Rights,22 September 2006, at para. 128. Michael Domingues v. United States, Judgement of the Inter-​American Commission on Human Rights, 22 October 2002, at para. 49.

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jus cogens norms protect or reflect fundamental values, in its work on the law of treaties, State responsibility and fragmentation of international law, in particular in the commentaries it has produced in regard to these topics. In the commentaries to its Draft Articles on the Law of Treaties, for example, the International Law Commission made the following observation (emphasis added): –​ “It is not the form of a general rule of international law but the particular nature of the subject-​matter with which it deals that may, in the opinion of the Commission, give it the character of jus cogens”;59 and –​ “The Commission, however, took the view that rules of jus cogens are of so fundamental a character that, when parties conclude a treaty which conflicts in any of its clauses with an already existing rule of jus cogens, the treaty must be considered totally invalid”.60 More emphatically, in the commentaries to the Articles on State Responsibility, the International Law Commission furthermore expressed the view that “obligations imposed on States by peremptory norms necessarily affect the vital interests of the international community as a whole.”61 Finally, in its Conclusions on Fragmentation in International Law, the ilc further clarified that a “rule of international law may be superior to other rules on account of the importance of its content as well as the universal acceptance of its superiority” and that this was “the case of peremptory norms of international law (jus cogens, Article 53 of the 1969 Vienna Convention), that is, norms ‘accepted and recognized by the international community of States as a whole from which no derogation is permitted’ ”.62 There is thus ample evidence that the Commission has, even prior to its current work on peremptory norms of general international law, recognised the connection between jus cogens and fundamental values of the international community.

59

See para. 2 of the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties with Commentaries, Report of the International Law Commission, Eighteenth Session, General Assembly Official Records (A/​6309/​Rev.1) (1966). 60 Id., at para. 8 of the Commentary to Draft Article 41. 61 See para. 7 of the Commentary to Draft Article 12 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, Report of the International Law Commission, Fifty Third Session, General Assembly Official Records (A/​56/​10) (2001). 62 See Conclusion 32 of the Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the International Law Commission, Fifty-​Eight Session, General Assembly Official Records (A/​61/​10).

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Draft Conclusion 3 of the ilc’s 2019 First Reading Text on Peremptory Norms of General International Law (Jus Cogens)

6.1 Deliberations within the Commission In his First Report in 2016,63 the Special Rapporteur on Jus Cogens, Dire Tladi, proposed a Draft Conclusion in which it was stated inter alia that norms of jus cogens protect the fundamental values of the international community. The original proposal of Draft Conclusion 3 read as follows (emphasis added): Draft conclusion 3 General nature of jus cogens norms



1. Peremptory norms of international law (jus cogens) are those norms of general international law accepted and recognized by the international community of States as a whole as those from which no modification, derogation or abrogation is permitted. 2. Norms of jus cogens protect the fundamental values of the international community, are hierarchically superior to other norms of international law and are universally applicable.

In detailing his proposal to link jus cogens with fundamental values, the Special Rapporteur stated that in “addition to the elements explicitly referred to in article 53 of the Vienna Convention, however, doctrine and practice” justify the conclusion that jus cogens is characterized by “certain core elements”.64 In addition to universal applicability and hierarchical superiority, the Special Rapporteur stated that “jus cogens norms serve to protect fundamental values of the international community –​what has often been described as international ordre public or public order.”65 In the view of the Special Rapporteur, the “values which are protected by jus cogens norms –​those that constitute ‘the fundamental values of the international law community’ —​are those that have been said to be ‘toutes d’essence civilisatrice’ ”.66 These norms, the Special Rapporteur opined, “are concerned with the basic considerations of humanity.”67 63 64 65 66 67

First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693) (2016). Id., at 38, para. 63. Ibid. Id., at para. 71. Ibid.

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This proposal generated quite some debate in the ilc, as described by the Special Rapporteur himself.68 Although the opposition to this proposal was only from a few members of the Commission, it was, in the words of the Special Rapporteur, “sufficient to stall the adoption of this provision by the Drafting Committee”69 in the composition of the Commission in 2016. It was only the following year, in 2017, after the International Law Commission was reconstituted with a new composition subsequent to the election that took place at the United Nations General Assembly, that the overwhelming and vocal support of the link between jus cogens and fundamental values led to the adoption of this proposal by the Drafting Committee.70 In its final wording as formally adopted by consensus on First Reading in 2019, the text reads (emphasis added): Conclusion 3 General nature of peremptory norms of general international law (jus cogens) Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable. In the opinion of the Special Rapporteur, it was “hard to describe the contested draft conclusion as anything but codification”.71 Sean Murphy, also a member of the International Law Commission, has nonetheless taken the view that “draft conclusion 3 is more innovative and may prove controversial or confusing, especially if it is seen as requiring new criteria for identifying a norm as jus cogens”.72 68

69 70

71 72

Dire Tladi “Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal Reflections of the Special Rapporteur” (2019) 13 FIU Law Review 1137, at 1143–​1145. Id., at 1144. Id. For a complete listing of those members that supported the draft conclusion and those that opposed it, see Dire Tladi “The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens): Making Wine from Water or More Water than Wine?” (2020) 89 Nordic Journal of International Law 244, at 250, footnote 27. Tladi (above note 68), at 1145. Sean D. Murphy “Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-​First Session of the International Law Commission” (2020) 114 American Journal of International Law 68, at 69.

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In light of the contentious nature of the debate on this Draft Conclusion, it is perhaps useful to quote at length from the commentary to that draft conclusion, which reads as follows: (1) Draft conclusion 3 describes the general nature of peremptory norms of general international law (jus cogens). The general nature is described in terms of essential characteristics associated with peremptory norms of general international law (jus cogens). The draft conclusion is placed at the end of Part One in order to indicate that it provides a general orientation for the provisions that follow. A view was expressed, however, that such “characteristics” have an insufficient basis in international law, unnecessarily conflate the identification and effects of these norms, and risk being viewed as additional criteria for determining whether a specific peremptory norm of general international law (jus cogens) exists. (2) The first characteristic referred to in draft conclusion 3 is that peremptory norms of general international law “reflect and protect fundamental values of the international community”. The Commission chose the words “reflect and protect” to underline the dual function that fundamental values play in relation to peremptory norms of general international law. The word “reflect” is meant to indicate that the fundamental value(s) in question provide, in part, a rationale for the peremptory status of the norm of general international law at issue. Further, the word “reflect” seeks to establish the idea that the norm in question gives effect to particular values. The word “protect” is meant to convey the effect of the peremptory norm on the value –​that a specific peremptory norm serves to protect the value(s) in question. In some ways these are mutually reinforcing concepts. A value reflected by a peremptory norm of general international law (jus cogens) will be protected by compliance with that norm. (3) The characteristic that peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community relates to the content of the norm in question. Already in 1951, before the adoption of the 1969 Vienna Convention or the 1966 draft articles on the law of treaties, the International Court of Justice had linked the prohibition of genocide, a prohibition today widely accepted and recognized as a peremptory norm, to fundamental values, noting that the prohibition was inspired by the commitment “to condemn and punish genocide as ‘a crime under international law’ involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations”.

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(7) It will be noted from the discussion above that courts and scholarly writers have employed different terms to signify the relevance of values. For example, the phrases “fundamental values” and “interests”, or variations thereof, have been employed interchangeably. These different choices of words, however, are not mutually exclusive and they indicate the important normative and moral background of the norm in question.73 The Special Rapporteur, Dire Tladi, has further explained that in his view: [s]‌ometimes, the Commission … has decided to “depart” from the text of the Vienna Convention and follow more closely the practice. This was the case with the characteristics. The Vienna Convention does not mention “hierarchical superiority,” “universal applicability,” or “fundamental values.” Although these characteristics are not included in the Vienna Convention, they are not inconsistent with it. They have emerged from the implementation and application of Article 53 and have become part of the fabric of the definition of jus cogens.74 6.2 The Views of States and Expectations for the Second Reading Both when the proposal was being discussed in the Commission (in the Plenary and Drafting Committee) between 2016 and 2017, and also upon conclusion of the First reading in 2019, in the General Assembly, States, for the most part, supported that jus cogens norms reflect and protect the fundamental values of the international community in their statements before the 6th Committee, as it will be illustrated below. Only a few States did not support this notion, China and the United States being the ones that explicitly rejected it in the 2016 General Assembly Sixth Committee Debate. China recalled that the elements of universal applicability, superiority to other norms of international law and protection of the fundamental values of the international community, identified as core by the Special Rapporteur, “were obviously at variance with the basic elements of jus cogens set out in article 53 of the Vienna Convention” and thus amounted “to an alteration of the concept” of jus cogens.75 In China’s view, “[s]‌ince the elements of jus cogens had a bearing on the major interests of all States and direct 73 74 75

See Commentaries to Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 1). See Tladi (above note 68), at 1149. Summary record of the 24th meeting, Sixth Committee, Seventy-​First session, General Assembly Official Records (A/​C.6/​71/​s r.24) (2016), at para.89.

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implications for their rights, obligations and responsibilities, it was an open question whether there was a need to add new core elements and what implications such additions would have.”76 The United States of America’s delegation had questions about Draft Conclusion 3, paragraph 2, as proposed by the Special Rapporteur, which had not yet been adopted by the Drafting Committee. The meaning and purpose of the paragraph were unclear, and describing jus cogens norms as protecting “fundamental values” and as “universally applicable” would open the door to attempts to derive jus cogens norms from vague and contestable natural law principles, without regard to their actual acceptance and recognition by States.77 Other delegations, such as, the Czech Republic,78 El Salvador,79 South Africa,80 Brazil81 and Slovenia82 supported the proposal of the Special Rapporteur in the

76 77 78 79

80

81

82

Ibid. Summary record of the 26th meeting, Sixth Committee, Seventy-​First session, General Assembly Official Records (A/​C.6/​71/​s r.26) (2016), at para. 126. Summary record of the 24th meeting, (above note 75), at para. 72. For the Czech Republic jus cogens norms protected the fundamental values of the international community and were universally applicable. Summary record of the 25th meeting, Sixth Committee, Seventy-​First session, General Assembly Official Records (A/​C.6/​71/​s r.25) (2016), at para. 62. According to El Salvador “jus cogens norms protected the fundamental values of the international community, were hierarchically superior to other norms of international law and were universally applicable, as stated in draft conclusion 3. It would be extremely useful to analyze each of those elements of the nature of jus cogens norms separately and in detail in future reports.” Summary record of the 26th meeting (above note 77), at para. 87. South African was “disappointed that the Commission had not been able to agree on what South Africa believed were basic and uncontroversial characteristics. It was generally accepted that jus cogens norms were universally binding, reflected fundamental values and interests and were hierarchically superior. As the Special Rapporteur’s report suggested, the Commission itself had recognized those elements in its previous work, and it was to be hoped that the Drafting Committee would adopt them quickly.” Summary record of the 26th meeting (above note 77), at para. 91. Brazil’s delegation “appreciated that the Commission would first focus on identifying the general nature of jus cogens and the process for its creation. The reference in draft conclusion 3, paragraph 2, to the “fundamental values of the international community” was very important, as was the recognition that such norms were hierarchically superior to others and that they were universally accepted and applicable. It was to be hoped that, at a later stage, the Commission would be able to present an indicative list of jus cogens rules.” Summary record of the 25th meeting, Sixth Committee, Seventy-​Second session, General Assembly Official Records (A/​C.6/​72/​s r.25) (2017), at para. 100. Slovenia ‘referring to

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Sixth Committee Debate in 2016 and 2017. The Second and Third Reports of the Special Rapporteur summarized the positions of States.83 More recently, in the ilc topical summary of the discussion held in the Sixth Committee of the General Assembly on the draft conclusions adopted in First Reading in 2019, the following observations were made: Some delegations welcomed the confirmation in Draft Conclusion 3 (general nature of peremptory norms of general international law (jus cogens)) that jus cogens norms are universally applicable and therefore do not apply on a regional or bilateral basis. It was noted that jus cogens is applicable to all subjects of international law, including international organizations. Several delegations welcomed the reference to fundamental values, which should also serve as a criterion for the identification of jus cogens. Others emphasized that the Commission should clarify that the references to fundamental values do not affect the definition of jus cogens. Some delegations noted that Draft Conclusion 3 was superfluous and should be deleted. It was observed that the reference to hierarchical superiority without exception in draft conclusion 3 should take into account the distinction between procedural and substantive rules of international law.84 Among the delegations mentioned above, the Russian delegation stated that it: continued to see no need to specify in a separate draft conclusion additional characteristics of peremptory norms, such as the fact that they reflected and protected fundamental values of the international

83 84

the topic “Peremptory norms of general international law (jus cogens)”, said that the Commission’s consideration of approaches to the identification of jus cogens should not be entirely focused on article 53 of the Vienna Convention. He reiterated his delegation’s view that jus cogens norms were of a special and exceptional nature, as they reflected the common and generally accepted fundamental values and foundations of the international order. Consequently, the criteria for their identification should not be based entirely on consent.” Second Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​706) (2017) and Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​714) (2018). Topical summary of the discussion held in the Sixth Committee of the General Assembly during its seventy-​fourth session, prepared by the Secretariat, Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​c n.4/​734) (2020), at para. 81.

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community, were hierarchically superior to other rules of international law and were universally applicable. Those characteristics were descriptive rather than legal in nature. The commentary to the draft conclusion in question contained no references to any judicial or State practice that clarified the legal content of those characteristics or enabled the formulation of a normative definition thereof.85 On the other hand, several other delegations specifically supported the link between peremptory norms and fundamental values. Togo, for example, stated that it “supported Draft Conclusion 3, because it believed that peremptory norms of general international law reflected and protected fundamental values of the international community, were hierarchically superior to other rules of international law and should be universally applicable.”86 Similarly, Estonia “supported draft conclusion 3, where the Commission stated correctly that jus cogens norms protected fundamental values of the international community.”87 Cyprus “concurred with the decision not to include a draft conclusion on regional jus cogens.”88 In its view, jus cogens was “by definition universal as it reflected the fundamental values of the international community and was accepted and recognized as such by the international community of States as a whole under article 53 of the Convention.”89 Referring to the Draft Conclusions adopted as a whole on first reading, Ecuador recalled that they “served to confirm that such norms reflected and protected the fundamental values of the international community, were hierarchically superior to other rules of international law and were universally applicable.”90 In the same vein, Peru stated that “peremptory norms of general international law reflected and protected fundamental values of the international community, were hierarchically superior to other rules of international law and were universally applicable.”91 The delegation of Spain, for its part:

85 86 87 88 89 90 91

Summary record of the 25th meeting, Sixth Committee, Seventy-​Fourth Session, General Assembly Official Records (A/​C.6/​74/​s r.25) (2019), at para. 50. Id., at para. 27. Id., at para. 80. Summary record of the 27th meeting, Sixth Committee, Seventy-​Fourth Session, General Assembly Official Records (A/​C.6/​74/​s r.27) (2019), at para. 17. Ibid. Id., at para. 35. Id., at para. 63.

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Galvão Teles

appreciated the International Law Commission’s work on peremptory norms of general international law (jus cogens), which was extremely important, because, as stated in draft conclusion 3 of the draft conclusions adopted by the Commission on first reading, “peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable”.92 At the time of writing, the Commission is awaiting written comments from States. It is expected that, on the basis of those comments, the Commission would adopt a full set of Draft Conclusions on second reading. Will this final set of Draft Conclusions express the link between jus cogens and fundamental values? No one has a crystal ball and can say whether most States will continue to support Draft Conclusion 3, although the author is hopeful that they will. It does seem, in our view, that the Commission’s decision to link jus cogens and fundamental values was generally well-​received, and it would be a surprise if States were to generally change their position and to oppose it now. 7

Conclusion

The clarification in Draft Conclusion 3 adopted on First Reading in 2019 that peremptory norms of general international law (jus cogens) reflect and protect the fundamental values of the international community is a welcomed addition to the concept of jus cogens contained in Article 53 of the Vienna Convention on the Law of Treaties of 1969. In its current effort to further clarify and develop the concept and legal regime of peremptory norms in international law, the International Law Commission has, 50 years after the initial adoption of the concept in an international legal text, re-​centred it highlighting its most fundamental and distinctive feature, that is the fact that if jus cogens norms are non-​derogable and hierarchically superior to other rules of international law, it is because they reflect and aim to protect the most fundamental values of the international community at a certain given moment. The international legal order is essentially a horizontal system of norms. The few manifestations of verticality, jus cogens being one of them, is a

92

Summary record of the 26th meeting, Sixth Committee, Seventy-​Fourth Session, General Assembly Official Records (A/​C.6/​74/​s r.26) (2019), at para. 11.

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consequence of the recognition that some norms have the substantive quality (and not merely formal quality) of being more important than others in a constitutional sense, given their legal nature of protection of the very fundamental principles of such international legal order. Had the work of the International Law Commission concluded in 2019 on First Reading not reflected this aspect, the absence of a link between jus cogens and fundamental values of the international community, it would not have been well understood in academia, nor would it have been in line with the view of the majority of States that have supported such link in their comments regarding the on-​going work of the Commission. It is possible that the commentary that will accompany the Second Reading text, once it is concluded, will have to expand on and clarify the notion of fundamental values of the international community and their link to jus cogens, using wording from statements made by States and international courts and tribunals. The commentary could also emphasize in a stronger way that the reflection and protection of fundamental values is not an additional criterion for peremptory norms, but a characteristic and an objective of jus cogens. But the text of the draft conclusion is –​in the author’s view –​unlikely to suffer any substantial modifications.

Acknowledgements

The author would like to acknowledge and express her gratitude for the valuable research assistance of Claire Duval, ma Economic Law at Sciences Po Paris, LL.M. Candidate at Stanford Law School.

Chapter 4

Jus Cogens and the International Community “of States” as a Whole Jean Allain 1

Introduction

It is an often repeated maxim, attributed to Otto von Bismark, that “if you like laws and sausages, you should never watch either one being made”.1 This aphorism rings true as the International Law Commission, in undertaking “a general overview of conceptual issues relating to jus cogens”, found itself with a conundrum.2 The need to wrestle with the distinction between the identification of jus cogens as being based on the acceptance and recognition of “the international community of States as a whole”; and this giving rise to obligations erga omnes –​that is those “obligations owed to the international community as a whole”. As between these two, the loss of the words “of States” in the latter phrase is a circle difficult to square. In this chapter, I take on the challenge of seeking to explain how it is that at the 1969 Vienna Conference on the Law of Treaties, negotiators introduced into that instrument the phrase: “the international community of States as a whole”, whereas, less than a year later, the International Court of Justice in its 1970 Barcelona Traction judgment, spoke of “obligations owed to the international community as a whole”. In so doing, I demonstrate that this binary understanding is flawed: that, in fact, the phrase “international community as a whole” was at play in Vienna; and found its way into the Final Act of the Conference on the Law of Treaties. It did so, as a means of speaking of territorial entities which were not recognised as States within the orbit of the United Nations. This understanding better informs a consideration as to why the International Court of Justice, some nine-​months later, used the phrase “international community as a whole” in its judgement. This, in counter-​distinction to the manner in which the phrase came to be understood by the International 1 See Robert Pear “If Only Laws Were Like Sausages” (4 December 2010) New York Times, available at: https://​www.nytimes.com/​2010/​12/​05/​weekinreview/​05pear.html. 2 Report of the International Law Commission, Sixty-​eighth Session, General Assembly Official Records, (A/​71/​10), at para. 98.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_005

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Law Commission within its 2001 Articles on State Responsibility: as being applicable to an international community which includes, beyond States, other subjects of international law. In considering the developments which transpired in 1969 and 1970, I bring to this chapter a different perspective as to the significant markers ordinarily associated with the genesis and evolution of the concepts of jus cogens and obligations erga omnes. A perspective which, I believe, provides a better understanding of the evolution of the communitarian strands now embedded in contemporary public international law. That understanding is premised on using the lens of decolonisation and the decolonisation process as the source of concepts of both jus cogens and obligations erga omnes.3 It takes as its starting point, an examination of two conferences hosted by the Carnegie Endowment for International Peace, wherein at the 1965 gathering the Swiss jurist, Paul Guggenheim, advocated –​successfully –​to have the second such conference focus on the concept of jus cogens. Guggenheim put forward a contemporaneous perspective which challenges the current understanding that jus cogens was being developed by the International Law Commission as a result of imperatives related to treaty law. Rather, Guggenheim “thought that the concept of jus cogens had been introduced by the ilc to facilitate the access of new States to customary international law rules”.4 This was so as Newly Independent States were challenging –​consider, for instance, the Nyerere Doctrine –​their need to inherit the established international law, a system which they had no part in constructing.5 Hans Blix, for his part accepted Guggenheim’s premise, stating that “the choice of accepting customary law, including jus cogens or standing outside the international community was a problem connected with new States”.6 Guggenheim’s advocacy led to the 1967 Conference entitled The Concept of Jus Cogens in International Law, in which Eric Suy spelled out what was at stake in seeking to bring the concept of jus cogens into public international law:

3 See Jean Allain “Decolonisation as the Source of the Concepts of Jus cogens and Obligations Erga Omnes”, (2017) 1 Ethiopian Yearbook of International Law 35. 4 The Process of Change in International Law, Carnegie Endowment for International Peace, Summary Record, 1965, p. 17. 5 See Julius K. Nyerere “Problems of State Succession in Africa: Statement of the Prime Minister of Tanganyika” (1962) 11 International and Comparative Law Quarterly 1210, at 1211; where it reads in part: “The Government must be vigilant to ensure that where international law does not require it Tanganyika shall not in the future be bound by pre-​independence commitments which are no longer compatible with their new status and interest”. 6 Carnegie Endowment for International Peace (above note 4), at 22.

70 Allain one of the fundamental problems of contemporary international law was to what extent the recently independent States are bound by existing international law, and more precisely, whether there exists in international law peremptory norms binding the subjects of international law absolutely and from which derogation is not possible.7 Suy repeated Guggenheim’s words, first spoken at the 1965 Conference, that the International Law Commission had taken on the issue of jus cogens as “a political concession to the new States”.8 Suy went on to state his belief that the narrow conception of jus cogens within the International Law Commission no longer held as “the traditional framework of application of jus cogens was broken”. He continued: The concept of jus cogens has always been discussed in relation to the law of treaties, although its significance was much wider. It has taken the emergence of new States and the ensuing problem of their attitude towards international law in order to reveal the true effects of the notion of jus cogens or a truly universal public policy; namely, the limitation on the sovereign will of States through their submission to principles necessary for the peaceful co-​existence of all States whatever their social, ideological and legal system. It is the idea of a legal order common to all members of the community of States which is about to take shape.9 And take shape it did two years later, as negotiations at the Vienna Conference on the Law of Treaties transpired in the spring of 1968 and 1969. Here again, the echo of the decolonisation process as the driver for the development of jus cogens in international law was heard.10 7 8 9 10

Carnegie Endowment for International Peace, The Concept of Jus Cogens in International Law: Papers and Proceedings Conference on International Law, Langonissi (Greece), April 3–​8, 1966 (Carnegie Endowmentfor International Peace, 1967), at 17. Ibid. Eric Suy “The Concept of Jus cogens in Public International Law” in Carnegie Endowment for International Peace (above note 7), at 59. Consider the words of Aleksei Tyurin, the Representative of Byelorussian Soviet Socialist Republic, to the Vienna Conference on the Law of Treaties: “The most important aims of contemporary international law were to consolidate world peace and security and to guarantee the freedom and independence of peoples, and it was those aims that had led to the emergence of the rules and principles of jus cogens (…)”. See Summary records of the plenary meetings and of the meetings of the Committee of the Whole, Second Session, United Nations Conference on the Law of Treaties Official Records (A/​c onf.39/​ 11/​Add.1), at 105.

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71

1969 Vienna Convention on the Law of Treaties

The concept of jus cogens norms was introduced into the 1969 Vienna Convention on the Law of Treaties (vclt) in relation to invalidation of treaties. It is here, at Article 53 of the vclt, that what has come to be recognised as the general definition of jus cogens, which applies both within and beyond the law of treaties, is given voice:11 A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. As originally drafted by the International Law Commission, the provisions of what would become Article 53 did not mention the words “international community of States as a whole”. That phrase was introduced in Vienna during the negotiation of the United Nations Conference on the Law of Treaties by way of amendments, which first proposed language wherein jus cogens norms were those norms that were “recognized in common by the national and regional legal systems of the world”. This was later modified as “recognized by the international community as a norm”.12 The latter provisions were then modified by the Drafting Committee by inserting the phrase “recognized by the international community of States as a whole”, with no explanation as to why the words “of States” were included.13 Why then were the words “of States” introduced to qualify the concept of the “international community” within the definition of jus cogens developed during the negotiations at the Vienna Conference on the Law of Treaties? The 11 12

13

Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens) and Commentaries, Report of the International Law Commission, Seventy-​first Session, General Assembly Official Records (A/​74/​10), at 149. See amendments proposed by the United States of America (A/​c onf.39/​C.1/​L.302) and Finland, Greece and Spain (A/​c onf.39/​C.1/​L.306 and Add. l and 2), as found in United Nations Conference on the Law of Treaties Official Records: Documents of the Conference (A/​c onf.39/​11/​Add.2). Summary records of the plenary meetings and of the meetings of the Committee of the Whole, First Session, United Nations Conference on the Law of Treaties Official Records (A/​c onf.39/​11), at 471.

72 Allain answer may lie in adjusting the optics of our understanding of those deliberations by considering that the decolonisation process was in full swing with Newly Independent States constituting a formidable block –​especially when socialist States supported their endeavours –​within United Nations. In taking this perspective, it becomes evident that the answer is not straight forward, but rather needs to be inferred from developments related to the inclusion of the phrase “international community as a whole” during proceedings at the Vienna Conference. With the decolonisation process as a starting point, it becomes evident that Western States felt themselves fighting a rear-​guard action against the introduction of jus cogens into a treaty. This was made most evident by France which was the strongest opponent of jus cogens and to the inclusion of that concept in a convention on the law of treaties. In considerations of what is now Article 53 of the 1969 Vienna Convention, the French Delegation stated that if this provision was interpreted to mean that a majority could bring into existence peremptory norms that would be valid erga omnes, then the result would be to create an international source of law subject to no control and lacking all responsibility. The result would be to deprive States of one of their essential prerogatives, since to compel them to accept norms established without their consent and against their will infringed their sovereign equality.14 Yet, such considerations did not sway the Conference. In fact, the Ecuadorian Delegation noted more generally that “arguments advanced against” what is now Article 53 “were completely groundless and merely expressed the political interests of a few States which wished to continue to enjoy certain ill-​gotten advantages”.15 Those ill-​gotten gains were: unequal treaties. This was given voice at the Conference by the Polish Delegate who stated, in regard to the proposed provisions related to jus cogens, that these were “of particular importance to nations which had only recently regained their independence”; as it “was perfectly understandable that they should be entitled to rid themselves of any remnants of the colonial regime, including those embodied in treaties”.16 Where those treaties were concerned, the Soviet Representative made plain what was at stake: 14 15 16

See A/​c onf.39/​11/​Add.1 (Second Session) (above note 10), at 94–​95. Id., at 97. Id., at 99.

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In his delegation’s view the peremptory norms of international law were, above all, the fundamental principles of contemporary international law. In particular, all leonine [re: lion’s share] and similar unequal treaties which had been concluded in violation of the principle of the sovereign equality of States came under [the future Article 53]. Unequal treaties and other treaties which violated that basic principle were illegal.17 With like-​considerations being manifest throughout the negotiations, the provisions related to jus cogens became a controversial element of the Vienna Conference. While the provisions related to jus cogens would ultimately make their way into the vclt, they did so on the basis of two fundamental safeguards: 1) a non-​retroactivity clause; and 2) an obligatory adjudication clause. The French Delegate spoke to the first of these, stating that the Conference’s Committee of the Whole: had plainly perceived the danger, since it had adopted a provision on the non-​retroactivity of the convention, in order to protect treaties concluded before its entry into force from being claimed to be invalid on the ground of jus cogens.18 Where France saw a usurpation of sovereignty by the introduction of jus cogens, the German Delegation expressed itself satisfied with the introduction of compromissory clause requiring obligatory adjudication, as requiring a State claiming that a treaty was void as a result of a conflict with a norm of jus cogens to, in law, “prove that it was a peremptory rule”.19 Thus, Germany lent its support to the provisions related to jus cogens, recognising that recourse to the International Court of Justice “offered the necessary safeguards against any abuse” to which the provisions of jus cogens within the Vienna Convention “might give rise”.20 With those safeguards in place, only eight States voted against the provisions of what would become Article 53 of the vclt. 17 18

19 20

Id., at 104. Id., at 94. Note that Article 4 (Non-​retroactivity)) of the 1969 Vienna Convention reads: “Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States”. Id., at 96. Id. Note that Article 66 (Procedures for judicial settlement, arbitration and conciliation) of the 1969 Vienna Convention, which sets out the means of dispute settlement states that: “(a) any one of the parties to a dispute concerning the application

74 Allain As the previous considerations demonstrate, it is unclear from the record of the Conference why the words “of States” were introduced into the phrase “international community as a whole” in Article 53 of the vclt. However, by looking at the issue from a different perspective, an understanding does emerge, one drawn by inference from the following considerations related to the decolonisation movement. It should be recognised that while the phrase “international community of States as a whole” was used in regard to what would become Article 53 of the Convention on the Law of Treaties, the phrase “international community as a whole” also found its way into the Final Act of the United Nations Conference on the Law of Treaties. It did so as part of a declaration on universality which was twinned with the provisions on obligatory adjudication, as part of the last-​ditch package-​deal, that led to the successful conclusion of the Vienna Conference. That package-​deal effectively meant that while Western States gained their judicial safeguard related to disputes touching on jus cogens, Newly Independent States –​and it should be said Socialist States –​received recognition as to the universality of the international order, going beyond the membership of the United Nations family. The Declaration on Universal Participation in the Vienna Convention on the Law of Treaties (the Declaration) recognises that the vclt enables “the General Assembly to issue special invitations to States which are not Members of the United Nations or of any of the specialized agencies […], or parties to the Statute of the International Court of Justice to become parties to the Convention” and, as such, invited the General Assembly to do so.21 In accepting this Declaration, the plenipotentiaries to the Conference stated that where framework instruments were concerned, they were: Convinced that multilateral treaties which deal with the codification and progressive development of international law, or the object and purpose of which are of interest to the international community as a whole, should be open to universal participation.22

21 22

or the interpretation of article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration” Final Act of the United Nations Conference on the Law of Treaties, First and Second Sessions, United Nations Conference on the Law of Treaties Official Records (A/​c onf.39/​ 26), at 285. Ibid. Emphasis added. The Declaration on Universal Participation in the Vienna Convention on the Law of Treaties reads in full: The United Nations Conference on the Law of Treaties, Convinced that multilateral treaties which deal with the codification and progressive development of

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It should be emphasised that the issue of universality was contentious, having had its origins –​where the law of treaties is concerned –​in conflicting views expressed within the Sixth Committee of the General Assembly in 1966.23 While the Sixth Committee put forward a draft of what would ultimately become the General Assembly Resolution convening the Conference on the Law of Treaties, those differing perspectives spilt over to the deliberation of the General Assembly. As the Representative of the United Arab Republic noted: “[v]‌ery seldom has the Sixth Committee made any demands on the time of plenary meetings of the General Assembly to bring to it issues which give rise to particular difficulties or on which general agreement has not been achieved”.24 Where there had been a lack of general agreement within the Sixth Committee was in regard to which “States” should be invited to participate in the negotiation conference. At meetings of both the Sixth Committee and the



23 24

international law, or the object and purpose of which are of interest to the international community as a whole, should be open to universal participation, Noting that articles 81 and 83 of the 1969 Vienna Convention enable the General Assembly to issue special invitations to States which are not Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency, or parties to the Statute of the International Court of Justice, to become parties to the Convention, 1. Invites the General Assembly to give consideration, at its twenty-​fourth session, to the matter of issuing invitations in order to ensure the widest possible participation in the Vienna Convention on the Law of Treaties; 2. Expresses the hope that the States Members of the United Nations will endeavour to achieve the object of this Declaration; 3. Requests the Secretary-​General of the United Nations to bring this Declaration to the notice of the General Assembly; 4. Decides that the present Declaration shall form part of the Final Act of the United Nations Conference on the Law of Treaties. Note that from the perspective of the general rules of interpretation as set out in Article 31 of the vclt, the reference to “the international community as a whole” found in this Declaration should be understood as part of the “context”, one of the elements of treaty interpretation (i.e.: good faith, ordinary meeting, context, object and purpose). Specifically, Article 31(2)(a) states that the “context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty”. Report of the Sixth Committee, Reports of the International Law Commission on the Second Part of its Seventeenth Session and on its Eighteenth Session, General Assembly Official Records (A/​6516), at 46–​48. General Assembly Official Record, Twenty-​First Session (UN Doc. A/​p v.1484), at para. 73. Note that by 1966, the United Arab Republic consisted of Egypt (with its benevolent occupation of the Gaza Strip). From 1958 until 1961 it also include Syria. Egypt maintained this name officially until 1971, having lost the Gaza Strip to Israel in a war in 1967.

76 Allain General Assembly, Newly Independent States moved to amend the Resolution calling for a negotiation conference on the law of treaties to go beyond inviting those within the orbit of the United Nations and instead to invite “all States to send delegations to participate in the work of the conference”.25 Western States rejected this universalist approach, seeing it as a delicate issue, related to State recognition which placed the United Nations Secretary-​General, by his own admission, in a difficult situation. During the General Assembly deliberations of 1966, the Canadian Representative quoted the “most authoritative statement by the Secretary-​General” on the issue, wherein considering invitations to like-​conferences, the Secretary-​General stated that he had a duty to determine whether an invited “authority” would be entitled to become a party to the treaty in question”.26 In this regard, the Secretary-​General statement read that “there are certain areas in the world the status of which is not clear”; and, in those cases: I would not wish to determine on my own initiative the highly political and controversial question whether or not the areas, the status of which was unclear, were States within the meaning of the amendment to the draft resolution now being considered. Such a determination, I believe, falls outside my competence.27 For those in favour of the universalist approach, they saw the exclusion of the People’s Republic of China, a number of the socialist States, including the German Democratic Republic, the Democratic Republic of Viet-​Nam, and the Democratic People’s Republic of Korea and those newly independent States which had yet to gain recognition or admission to the United Nations, as being “illegal” and a violation of the principle of universality.28 This was 25

26 27

28

See UN Doc. A/​p v.1484 (above note 24), at para. 85. The provision it sought to replace, Operative Paragraph 4 of General Assembly Resolution 2166, reads: “Invites States Members of the United Nations, States members of the specialized agencies, States Parties to the Statute of the International Court of Justice and States that the General Assembly decides specially to invite to participate in the conference”. See UN Doc. A/​p v.1484 (above note 24), at para. 90. Ibid. The statement by the Secretary-​General continued: “In conclusion, I must therefore state that if the ‘any State’ formula were to be adopted, I would be able to implement it only if the General Assembly provided me with the complete list of the States coming within that formula, other than those which are Members of the United Nations or the specialized agencies, or parties to the Statute of the International Court of Justice”. Id., at para. 108. In regard to references of their “illegal” exclusion, see UN Doc. A/​c onf.39/​ 11 (above note 13), at 2. Consider the statement of the Representative of the United Republic of Tanzania, in this regard: “In view of my Government’s absolute respect for the principle of universality, my delegation cannot acquiesce in the illegality of the restrictive

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compounded, as was noted by the Romania delegation in the case of a negotiation conference related to the law of treaties, as: the participation of all States members of the international community in the work of codification is an essential condition for the effectiveness of the legal institutions to be adopted. This is why international law recognizes that general multilateral treaties are open to all States. Can there be a treaty of a more obviously general nature than one on the subject of treaties themselves? The interests of the international community demand that the codification of treaty law should be carried out through the joint efforts of all States without distinction.29 Further, as was noted during the Vienna Conference, the issue raised questions in regard to the proposed provision dealing with jus cogens. For instance, the Hungarian delegation stated that “[i]‌f the codification of international law was considered to mean the codification of general international law, in other words, of the law which should prevail all over the world, then the requirement of universality logically followed ex definitione”.30 The positions rehearsed in New York were once again relied upon in Vienna during the Conference on the Law of Treaties where, on two occasions, identical draft articles related to universality were proposed, with each failing to gain the support needed for including in the vclt.31 As the conclusion of the Conference neared in Vienna, the Nepal Delegate noted that “[i]‌t was a tragedy that at that stage, when Article 1 of the Convention made it applicable to treaties concluded between all States and Article 5 empowered all States to conclude treaties, the Convention did not provide that it was open to all States”.32 Instead, at the very last session which considered substantive issues, a package-​deal was introduced which included provisions giving voice to such universality through the Declaration that effectively set out the compromise position: that such codification treaties that “are of interest to the

29 30 31 32

formula. Furthermore, we are a non-​aligned State and as such we cannot support the restrictive formula which, under the cover of offering a so-​called ‘practical solution’, is in fact an embodiment of ideological conflicts to which we will not be a party. We refuse to be tempted by the unfortunate efforts of others to turn the United Nations into an arena for scoring petty political and diplomatic victories in ideological conflicts. We reject this temptation and accordingly we shall vote to invite all States”. See A/​p v.1484 (above note 24), at para. 118. See A/​c onf.39/​11/​Add.1 (above note 10), at 185. Id., at 181 and 187. Id., at 199.

78 Allain international community as a whole, should be open to universal participation”.33 Interestingly, the provisions of the two failed draft articles, which had been meant to address universality and which were the basis for the provisions in the Declaration related to “international community as a whole”, were couched in terms of the “international community of States as a whole”.34 There are two possible ways to consider how the term “international community as a whole” ultimately made its way, via the Declaration, into the Final Act of the Conference of the Law of Treaties without the words “of States”. The first possibility is oversight. It is possible that in the rush to conclude the drafting of the vlct the omission of the words “of States” was missed.35 The second possibility is that leaving the words “of States” out of the universalist provisions of the Declaration was a conscious decision. Having considered the relevant proceedings of the Vienna Conference on the Law of Treaties, as well as those of the Sixth Committee and the General Assembly, it may be said that the omission of the words “of States” from the phrase “the international community as a whole” in the text of the Declaration should be understood as having been done intentionally.36 This, in the context in which the package-​deal –​that included the Declaration as part of the Final Act –​was sponsored by ten African States (Ghana, Ivory Coast, Kenya, Kuwait, Lebanon, Morocco, Nigeria, Sudan, Tunisia and the United Republic of Tanzania), which sought to promote a universalist approach to engaging with 33 34

35

36

See UN Doc. A/​c onf.39/​26 (above note 21) (emphasis added). See A/​c onf.39/​11/​Add.1 (above note 10), at 181. Those proposed articles read: “Every State has a right to participate in a multilateral treaty which codifies or progressively develops norms of general international law or the object and purpose of which are of interest to the international community of States as a whole”. (emphasis added). The records of the Conference give credence to this possibility as the Chair of the Drafting Committee noted that “the Drafting Committee had only been able to devote one meeting to the examination of the declaration, new article, annex and resolution […] and, in the short time available, it had not been able to give to those texts the same attention as it had given to other provisions of the convention”. See ibid., at 202. The thesis of omission has limited purchase, as the provisions related to the Declaration were taken up in the proceedings of the Conference immediately after the second attempt to introduce a draft article addressing universal participation in framework instruments using the phrase “the international community of States as a whole”. During the deliberations regarding the Declaration, the Hungary Delegate quoted the provisions to his fellow plenipotentiaries, making plain that what was at play was “the interest of the international community as a whole”: “The first paragraph of the preamble expressed the conviction of the Conference that multilateral treaties which dealt with the codification and progressive development of international law or the object and purposes of which were of interest to the international community as a whole should be open to universal participation”. See ibid., at 192.

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multilateral treaties. As a result, it may be said that the removal of all mention of “States” within the provision of Declaration under consideration –​where the term had appeared twice in the proposed draft universalist articles –​should be recognised as having served the purpose of its drafters. I would argue that, by omitting “of States” the Declaration side-​stepped the issue of recognition of States and thus came closer to the objective which Newly Independent States had been advocating for some time: that universal instruments should allow for universal membership where attribution of Statehood is manifest. As such, the international community as a whole should be understood as including all States whether recognised or not; whether part of the United Nations’ orbit or otherwise. If this be correct, then it may be said that the inclusion of the term “of States” in Article 53 of the vclt within the phrase “international community of States as a whole” was the result of a restrictive interpretation of “States”, as being limited to those entities which passed the litmus test of being within the United Nations’ orbit, as: 1) Members States of the United Nations, 2) States that were members of specialized agencies, or 3) States Parties to the Statute of the International Court of Justice. As already mentioned, for the purposes of the Vienna Conference on the Law of Treaties, this did not include a number of newly-​independent States which had yet to become members of the United Nations, a number of Soviet States, and the People’s Republic of China. 3

The 1970 Barcelona Traction Case and the 2001 Articles on State Responsibility

The obscure provision of the 1969 Final Act of the Vienna Conference on the Law of Treaties which made reference to “the international community as a whole” did not remain so for very long, as this phrase would, nine-​months later, be born anew and given prevalence by its use in the 1970 Barcelona Traction case. In its most famous dictum, the International Court of Justice effectively apologised “for getting it wrong”37 in regard to its “disaster of 1966”38 and, in so doing, wove communitarian elements into the very fabric of the international legal order. While the importance of that specific pronouncement by the International Court of Justice should not be downplayed, for reasons which 37 38

James Crawford “Multilateral Rights and Obligations in International Law” 319 Collected Courses of The Hague Academy of International Law 325, at 410. Georges Abi-​Saab “The International Court as a World Court” in Vaughan Lowe and Malgosia Fitzmaurice (eds.) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge University Press, 1996), at 5.

80 Allain will become apparent shortly, the legacy of the determination of the Court that States had obligations erga omnes was, in fact, amplified and solidified by having been operationalised by the International Law Commissions in its 2001 Articles on State Responsibility. To understand why the International Court of Justice utilised the phrase “the international community as a whole”, reference must be given to the context of the 1970 Barcelona Traction case. That understanding starts with the League of Nations mandate for South-​West Africa –​today’s Namibia –​having been exercised by the Union of South Africa. The unilateral annexation of South-​West Africa by South Africa was determined to be ultra vires by a 1950 Advisory Opinion of the International Court of Justice.39 As the decolonisation process took hold over the ensuing decade, the growing opposition to the racist basis of an apartheid South Africa, its continued presence in South-​West Africa became a focal point of international attention and solidarity amongst Newly Independent States. In 1960, Ethiopia and Liberia instituted proceedings against South Africa before the International Court of Justice, seeking to have it vacate the Mandate, allowing South-​West Africa to become independent. Having determined that it had jurisdiction in 1962, the “disaster of 1966” was the move by the International Court of Justice, at the merits phase, to revisit the issue of jurisdiction proprio motu, and find, by the casting vote of the President of the Court, that Ethiopia and Liberia lacked legal standing to bring such a claim. The International Court of Justice determined that Ethiopia and Liberia “cannot be regarded as possessing the legal right or interest” in the case, as their involvement in making such claims “amounts to a plea that the Court should allow the equivalent of an ‘actio popularis’, or right resident in any member of a community to take legal action in vindication of a public interest […] and that, accordingly, the Court must decline to give effect to them”.40 Before turning to consider the 1970 Barcelona Traction case as the apology for 1966, it is worth recalling that the introduction of provisions related to jus cogens had been amongst the most contentious provisions negotiated at Vienna Conference on the Law of Treaties. As a result, as James Crawford argues, the International Court of Justice introduced the concept of obligations erga omnes as a means of avoiding the terminology of jus cogens: What had happened between 1966 and 1970 was nothing other than the adoption of the Vienna Convention, by a majority of 79 to 1 (France)

39 40

International Status of South-​West Africa, Advisory Opinion, icj Report 1950, p. 128. South West Africa, Second Phase,, icj Reports 1966, p. 6, at 20, 45, and 49.

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with 19 abstentions. Although a number of other issues had been controversial, the most controversial was the issue of peremptory norms and the related question of dispute settlement. […] For the Court to have used the language of Article 53 of the Vienna Convention, the year after its adoption and at a time when its entry into force could not be assumed, was evidently a leap too far. So instead of that leap we got a concept.41 On 5 February 1970, the International Court of Justice rendered judgment on a claim brought by Belgium related to the bankruptcy of the Barcelona Traction, Light and Power Company, a Spanish entity incorporated in Canada. While Belgium sought to protect the interest of its shareholders by invoking diplomatic protection on behalf of its nationals, the International Court of Justice adjudged that Belgium lacked standing to exercise such protection. However, in so doing, the Court also addressed the public interest issue which was at the heart of its 1966 determination by means of a pronouncement obiter dictum. The Court’s transition from the subject-​matter of the case under consideration to the introduction of the concept of “obligations erga omnes”42 is worth setting out: When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified. […] The International Court of Justice then went on to say:

41 42

James Crawford (above note 37), at 410–​411. The International Law Commission notes that since having been introduced in the Barcelona Traction case, the International Court of Justice “has taken the opportunity to affirm the notion of obligations to the international community as a whole” on other occasions: “In the East Timor case, the Court said that ‘Portugal’s assertion that the right of peoples to self-​determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable’. At the preliminary objections stage of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, it stated that ‘the rights and obligations enshrined by the [Genocide] Convention are rights and obligations erga omnes’. See para 3 of the Commentary to Chapter iii of Part Two of the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001).

82 Allain […] In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-​à-​vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.43 In so doing the International Court of Justice used the language of “the international community as a whole” as to whom obligations are owed, in regard to certain rights which all States have a legal interest in protecting. These are obligations erga omnes.44 It is not possible to know why the International Court of Justice chose to use the language of “international community as a whole”, rather than the formulation of “international community of States as a whole” as set out within the vclt. However, in light of the amends which the International Court of Justice sought to make in the 1970 Barcelona Traction case, a plausible explanation as to why the language of “international community as a whole” was chosen over the formulation “international community of States as a whole”, is that the Court –​whose membership had changed in the intervening years –​sought to echo the universalist language which was promoted by Newly Independent States, rather than the more restrictive provisions applying only to those within the United Nations’ orbit, which found their way into Article 53 of the vclt, as part of its overall approach to placing distance between itself and its 1966 decision in the South-​West Africa case. The importance of the International Court of Justice’s obiter dictum in the Barcelona Traction case can be appreciated by the fact that the International Law Commission gave “effect to the statement by the icj in the Barcelona 43

Case concerning the Barcelona Traction, Light and Power Company, Limited, Judgement, icj Reports 1970, p.3, at paras. 33 and 34. Emphasis added. 44 Consider the definition of obligation erga omnes developed by the Institute of International Law as: “an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action”. See Article 1(a) of Resolution “Obligations Erga Omnes in International Law”, Institute of International Law, Krakow Session –​2005, available at: https://​www.idi-​iil.org/​app/​ uploads/​2017/​06/​2005_​kra_​01_​en.pdf.

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Traction case” within its 2001 Articles on States Responsibility.45 As a result, the Articles “are not limited to breaches of obligations of a bilateral character, e.g. under a bilateral treaty with another State. They apply to the whole field of the international obligations of States, whether the obligation is owed to one or several States, to an individual or group, or to the international community as a whole”.46 In addressing those obligations owed to the international community as a whole, the International Law Commission limited its consideration to serious breaches of peremptory norms, acknowledging that there is “at the very least substantial overlap” between jus cogens norms and obligations erga omnes; while also recognising that between the two, there is “a difference in emphasis”: While peremptory norms of general international law focus on the scope and priority to be given to a certain number of fundamental obligations, the focus of obligations to the international community as a whole is essentially on the legal interest of all States in compliance.47 In its Commentary to the Articles on States Responsibility, the Commission notes that “the Court’s statement clearly indicates that for the purposes of State responsibility certain obligations are owed to the international community as a whole, and that by reason of ‘the importance of the rights involved’, all States have a legal interest in their protection”.48 To address this understanding, the Commission devoted a full Chapter of the Articles on States Responsibility to engaging with serious breaches of obligations under peremptory norms of general international law and the obligations flowing from such breaches. In succinct terms, in the words of the Special Rapporteur who marshalled the 2001 Articles on State Responsibility into existence, the Articles “give teeth to communitarian norms”.49 Where such serious breaches of jus cogens are at hand, the International Law Commission established, at its Article 48(1)(b) of the Articles on States Responsibility, that a third-​State could invoke responsibility, if “the obligation breached is owed to

45 46 47 48 49

See Art. 48 of the Articles on State Responsibility (above note 42). Id., at para. 5 of the General Commentary. Id., at para. 7 of the Commentary to Chapter iii of Part Two. Id., at para. 2 of the Commentary to Chapter iii of Part Two. James Crawford “Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ilc Articles on Responsibility of States for Internationally Wrongful Acts” in Ulrich Fastenrath, et al. (eds.) From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (Oxford, 2011), at 240.

84 Allain the international community as a whole”. Thus, the Commission established that “each State is entitled, as a member of the international community as a whole, to invoke the responsibility of another State for breaches of such obligations”.50 Where considerations are given to the phrase “international community as a whole” within the Commentary on the Articles on States Responsibly, the International Law Commission states that it is: sufficient to use the phrase “international community as a whole” rather than “international community of States as a whole”, which is used in the specific context of article 53 of the 1969 Vienna Convention. The insertion of the words “of States” in article 53 of the Convention was intended to stress the paramountcy that States have over the making of international law, including especially the establishment of norms of a peremptory character.51 The assertion by the Commission here that the word “of States” was included with the intention of stressing the paramountcy that States have in law-​making does not reflect the silence of the proceedings of the Vienna Conference on the Law of Treaties where the development of the phrase “international community of States as a whole” is concerned. That said, though not reflected in the public record, this ex post facto rationale proffered, that States are paramount in the creation of international law, is without question.

50 51

See also Article 48 of the Articles on State Responsibility (above note 42), which reads: 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: (a) cessation of the internationally wrongful act, and assurances and guarantees of non-​repetition in accordance with article 30; and (b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. 3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1 See UN Doc. A/​c n.4/​s er.A/​2001/​Add.1 (Part 2) (above note 42), at 84.

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In further consideration of the nature of the “international community as a whole”, the Commentary to the 2001 Articles on State Responsibility sees the omission of the words “of States” as broadening the scope of the phrase “the international community as a whole” so as to include other subjects of international law. This is in counter-​distinction to the purpose for which the phrase was included in the Declaration at the Vienna Conference, that is, to allow States beyond the United Nations’ orbit to be involved in negotiations of multilateral legal instruments. This is so, as in its Commentary to the 2001 Articles on State Responsibility, the International Law Commission recognised that States are not the only beneficiaries of the regime of State Responsibility: In cases where the primary obligation is owed to a non-​State entity, it may be that some procedure is available whereby that entity can invoke the responsibility on its own account and without the intermediation of any State. This is true, for example, under human rights treaties which provide a right of petition to a court or some other body for individuals affected. It is also true in the case of rights under bilateral or regional investment protection agreements.52 As such, the use of the phrase “international community as a whole” is understood within the context of the Articles on State Responsibility as referring to obligations which may be owed to any or all of the subjects of international law as rights holders. This, in the context where the membership of the United Nations grew from its original 53 Members States, to 127 in 1970, and onwards to its current 193 Members States.53 In an evolving international legal order, the meaning of the phrase “the international community as a whole” came to be given a different meaning in 2001. As the decolonisation process receded from the international horizon it brought with it near universal membership to the United Nations. Parallel to this evolution was the growth in prominence of other subjects of international law and it was these that the International Law Commission gave voice to when seeking to given content to the phrase “international community as a whole” without the words “of States”, during its deliberation in regard to State responsibility.

52 53

Id., at 95. See United Nations “Growth in United Nations Membership, 1945-​present”, available at https://​www.un.org/​en/​sections/​member-​states/​growth-​united-​nations-​membership-​ 1945-​present/​index.html.

86 Allain 4

The 2019 Draft Conclusions on Peremptory Norms of General International Law

The most recent considerations by the International Law Commission of the phrase “the international community of States as whole” and “ ‘international community as a whole” is to be found in the current study of International Law Commission on jus cogens. In 2015, the topic of “jus cogens” was included as a topic in the programme of work of the Commission, with Prof. Dire Tladi appointed as the Special Rapporteur on the topic. In August 2019, Prof. Tladi’s work, which was “aimed at providing guidance to all those who may be called upon to determine” the existence and legal consequences of jus cogens, ultimately “enabled the Commission to bring to a successful conclusion its first reading of the draft conclusions on peremptory norms of general international law (jus cogens)” which focused on the “identification and legal consequences” of jus cogens”.54 Amongst those 2019 Draft Conclusions on Peremptory Norms of General International Law (jus cogens),55 the phrase “international community of States as a whole” appears first in Draft Conclusion 2, as the definition of a peremptory norm of general international law ( jus cogens), which reads: A peremptory norm of general international law (jus cogens) 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, The Commentary to Draft Conclusion 2 makes plain that the definition of jus cogens is based on Article 53 of the vclt, and that this definition of jus cogens “has come to be accepted as a general definition which applies beyond the law of treaties”.56

54 55

56

See Draft Conclusion 1 of the Draft Conclusions (above note 11). Id. Amongst the 23 Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), mention is made of the “international community as a whole” and “international community of States as a whole” in five draft conclusions: in Draft Conclusion 2 (definition of jus cogens); Draft Conclusion 3 (general nature of jus cogens); Draft Conclusion 4 (criteria for identifying norms of jus cogens); Draft Conclusion 7 (International Community of States as a whole) and Draft Conclusion 17 (jus cogens norms as obligations obligations erga omnes). Id., at para. 1 of the Commentary to Draft Conclusion 2.

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The 2019 Draft Conclusions on Peremptory Norms of General International Law (jus cogens) then goes on to consider the relevance of the “international community of States as a whole” to jus cogens by way of its Draft Conclusion 7. Those provisions, which set out the second criteria for establishing that a norm has a jus cogens character after that of “acceptance and recognition”.57 That criterion turns on which entities are relevant in accepting and recognising the emergence of a jus cogens norm, and reads as follows: International community of Sates as a whole



1. It is the acceptance and recognition by the international community of States as a whole that is relevant for the identification of peremptory norms of general international law (jus cogens). 2. Acceptance and recognition by a very large majority of States is required for the identification of a norm as a peremptory norm of general international law (jus cogens); acceptance and recognition by all States is not required. 3. While the positions of other actors may be relevant in providing context and for assessing acceptance and recognition by the international community of States as a whole, these positions cannot, in and of themselves, form part of such acceptance and recognition.

In regard to the phrase “international community of States as a whole”, the Commentary is unequivocal. Where acceptance and recognition of norms of jus cogens are concerned, “it is the position of States that is relevant and not that of other actors”, given that “the current state of international law retains States as the entities whose acceptance and recognition is relevant”.58 In so doing, the International Law Commission confirmed the approach it had taken up in 1982 when developing the Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations. The 57

58

Id., Conclusion 4 sets out the criteria for identifying norms of jus cogens: “(a) it is a norm of general international law; and (b) it is 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”. In further developing an understanding of the criteria set out in Conclusion 4(b), Conclusion 6 gives voice to the “acceptance and recognition” criterion while Conclusion 7 indicates “who must do the accepting and recognizing, namely the international community of States as a whole”. Id., Para. 2 of the Commentary to Draft Conclusion 7 of the Draft Conclusions (above note 11).

88 Allain 2019 Draft Conclusions on Peremptory Norms of General International Law followed this same direction –​though in 1982, the Commission was willing to at least question the need to include the words “of States” within the phrase “international community as a whole”, stating that the “expression ‘international community of States’ could conceivably have been supplemented by a reference to international organizations […]. Another possibility would have been to use the shorter phrase “international community as a whole”.59 Rather the International Law Commission, in 1982, decided that the “formula ‘international community of States as a whole’, employed in the Vienna Convention has been retained, […] as in the present state of international law, it is States that are called upon to establish or recognize peremptory norms”.60 Despite being explicit in establishing the place of States as the entities whose acceptance and recognition is required to identify a norm of jus cogens, Draft Conclusion 7 introduces other actors as ancillary to that process. This, in the context of both the International Court of Justice and the International Law Commission having been at the forefront of identifying jus cogens norms in line with their role as actors which can generate “subsidiary means for determination of rules of law”. In quoting from the provisions of Article 38(1)(d) of the Statute of the International Court of Justice, recognition is made by the International Law Commission that at the Vienna Conference the rationale for the use of the terms “acceptance and recognition” was that these terms were already found within Article 38, with “accepted” being “used in connection with customary international law”; and “recognized” “used in connection with conventions and treaties and general principles of law”.61 In its consideration of other actors, the Commentary goes on to state that: it is the acceptance and recognition of States that is relevant for determining whether a norm has a peremptory character, that does not mean that other actors do not play a role. Other actors may provide context and may contribute to the assessment of the acceptance and recognition by the international community of States as a whole. […] Ultimately,

59

60 61

Para. 3 of the Commentary to Article 53 –​Treaties conflicting with a Peremptory Norm of General International Law (Jus Cogens), Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations, Report of the International Law Commission, Thirty-​forth Session, General Assembly Official Records, (A/​37/​10), p. 56. Id. Para. 2 of the Commentary to Draft Conclusion 6 of the Draft Conclusions (above note 11).

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however, the positions of entities other than States are not, of themselves, sufficient to establish the acceptance and recognition required for the elevation of a norm of general international law to peremptory status.62 As the Commission ultimately concluded, it is the “acceptance and recognition by the international community of States as a whole that is relevant for the identification of peremptory norms of general international law”. The 2019 Draft Conclusions also give voice to the phrase “the international community as a whole” in reference to obligations erga omnes. Draft Conclusion 17, entitled Peremptory norms of general international law (jus cogens) as obligations owed to the international community as a whole (obligations erga omnes) reads as follows:

1. Peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest. 2. Any State is entitled to invoke the responsibility of another State for a breach of a peremptory norm of general international law (jus cogens), in accordance with the rules on the responsibility of States for internationally wrongful acts.

Within the Commentary to the 2019 Draft Conclusions, no substantive consideration is given to the phrase “international community as a whole”. Yet, as has been shown in this chapter, the phrase was not exclusive to the regime of State responsibility but was also given voice at the 1969 Vienna Conference on the Law of Treaties. 5

Conclusion

In 1947, the United Nations General Assembly mandated the International Law Commission with the task of initiating studies and making recommendations for the purpose of “encouraging the progressive development of international law and its codification”. In 2019, the Commission, under the stewardship of with Prof Tladi, brought to successful conclusion the first reading of Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens). In considering those conclusions as they pertain to the phrases “international community of States as a whole”/​“international community as a whole”, this 62

Para. 4 of the Commentary to Draft Conclusion 7 of the Draft Conclusions (above note 11).

90 Allain Chapter has returned to their initial emergence into law, in 1969 and 1970, so as to understand why this dichotomy came into existence and what differences exist as between these two concepts. In setting out the legal development of these twin phrases of “international community of States as a whole” and the ‘international community as a whole’, it becomes evident that the former –​preferred by Western States –​was meant to serve a restrictive purpose: to limit participation in the negotiations and ultimately in being a party to the 1969 Vienna Convention on the Law of Treaties, to those States forming part of the United Nations’ orbit. The latter provision –​which excluded the term “of States” –​was championed by Newly Independent States and Socialist States, as a means of allowing for universal participation at the Vienna Conference, and more generally allowing those States which had yet to become Members of the United Nations, its specialized agencies, or party to the Statute of the International Court of Justice, to participate in conferences where fundamental areas of general international law were being codified. However, as the decolonisation process recede from the horizon of international relations, the International Law Commission in developing the 2001 Article on State Responsibly, left that understanding behind and reinterpreted the provisions of the “international community as a whole” to mean not only States –​whether within or beyond the orbit of the United Nations –​but also other subjects of international law as rights-​bearers. In so doing, it opened the door for further progressive development of international law as shaping the evolving communitarian thread manifest in obligations flowing from the concept of jus cogens. In the 2019 Draft Conclusions on the Peremptory Norms of General International Law (jus cogens), its Draft Conclusion 7, under the heading “International community of States as a whole”, provides further clarification of that concept, while travelling further down the path of the progressive development of international law by confirming an “international community” beyond the exclusivity of States. But in so doing, Draft Conclusion 7 is unequivocal in stating that “the current state of international law retains States as the entities whose acceptance and recognition is relevant” in identifying jus cogens norms.63 That said, Draft Conclusion 7 does give voice to “the position of other actors” as these may provide context and assesses the acceptance and recognition of such norms, though such considerations “cannot, in and of themselves, form part of such acceptance and recognition” of norms of jus 63

Para. 2 of the Commentary to Draft Conclusion 7 of the Draft Conclusions (above note 11).

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cogens. The role played by various actors beyond the State in the identifying of norms of jus cogens is welcomed. Though, as has been shown in this Chapter, this was achieved by leaving behind the original understanding of the concept of “the international community as a whole” developed during the decolonisation movement, and replacing it with one created by the International Law Commission in 2001, premised on an international community which goes beyond States to incorporate other subjects of international law.

Chapter 5

Modification of Peremptory Norms of General International Law Mehrdad Payandeh 1

Introduction: Traces of a Missing Debate

In a famous short essay published thirty years ago, Anthony D’Amato advanced the idea that a theory of jus cogens would not only have to outline the legal consequences attributed to a peremptory norm and the criteria for a norm to rise to the status of jus cogens, but would also have to address the question of how international law can change or get rid of a jus cogens norm once it has emerged.1 The first two challenges mentioned by D’Amato have been in the spotlight of international legal discourse for many years. The question of the modification of peremptory norms, however, is rarely the subject of intense debate. This gap in the discourse is most noticeable within the debates and contributions of the International Law Commission relating to peremptory norms: While the first special rapporteur on the law of treaties, James Leslie Brierly, did not address the topic of peremptory norms,2 his successors Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice both proposed provisions on the invalidity of a treaty in case of conflicts with overriding principles of international law,3 with Fitzmaurice introducing the term of jus cogens.4 It was, however, only their successor, Sir Humphrey Waldock, who explicitly addressed the possibility that a rule of jus cogens might be abrogated or modified by a general multilateral treaty,5 emphasizing that “it would clearly be wrong to consider 1 Anthony D’Amato “It’s a Bird, It’s a Plane, It’s Jus Cogens!” (1990) 6 Connecticut Journal of International Law 1, at 6. 2 But see the reference of Mr. Yelpes (A/​c n.4/​s r.78) at para. 49 to moral law as a limit to the treaty-​making power of States and the proposal to add a provision according to which a treaty must have a “lawful purpose according to international law” in order to be valid. 3 See Draft Article 15 in the Report of the Special Rapporteur (Hersch Lauterpacht) on the Law of Treaties (A/​c n.4/​63) (1953), at 154. 4 Draft Article 16(2) in the Third Report of the Special Rapporteur (Gerald Fitzmaurice) on the Law of Treaties (A/​c n.4/​115+Corr. 1) (1958), at 26. 5 Draft Article 13(4) in the Second Report of the Special Rapporteur (Humphrey Waldock) on the Law of Treaties (A/​c n.5/​156 and Add.1-​3) (1963), at 52.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_006

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rules now accepted as rules of jus cogens as immutable and incapable of abrogation or amendment in future”.6 The Draft Articles adopted by the ilc in 19637 and their final version in 19668 incorporated this idea into the definition of jus cogens. Eventually Article 53 of the Vienna Convention on the Law of Treaties of 19699 defined, for the purposes of the Convention, a peremptory norm of general international law as “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”. While it is therefore clear, at least on the basis of the Vienna Convention, that peremptory norms are subject to modification, the question of how an existing peremptory norm can be modified has not been debated intensely, either in the International Law Commission or during the negotiations at the Vienna Conference.10 Subsequent projects of the ilc which touch upon the concept of jus cogens beyond the Vienna Convention11 did not raise questions of the modification of peremptory norms. Only with the decision to place the topic of jus cogens on the Commission’s long-​term program of work in 201412 did the opportunity to address the issue in a more detailed manner arise again. However, as became clear already on the basis of the First report by the special rapporteur Dire Tladi, the question of modification of peremptory norms would not be at the center of the Commission’s work. The report rather identifies four questions to be addressed: the nature, the criteria, and the legal consequences

6 7 8 9 10

11

12

Id., at para. 6 of Commentary to Draft Article 13. Draft Article 37 of the Draft Articles on the Law of Treaties, Report of the International Law Commission, Fifteenth Session, General Assembly Official Records (A/​5509) (1963). Draft Article 50 of the Draft Articles on the Law of the Treaties, Report of the International Law Commission, Eighteenth session, General Assembly Official Records (A/​6309/​Rev.1) (1966). Article 53 of the 1969 Vienna Convention on the Law of Treaties. For an overview over the contentious issues debated during the Vienna Conference see First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693) (2016), at paras. 35 et seq.; see also Mark E. Villiger Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill, 2009), at 667–​668. See Articles 26, 40 and 50(1)(d) of the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​83) (2001); Report of the Study Group of the International Law Commission on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (finalized by Martti Koskenniemi) (A/​c n.4/​L.682) (2016), at paras. 361–​379. See Annex, Report of the International Law Commission, Sixty-​Sixth Session, General Assembly Official Records (A/​69/​10) (2014).

94 Payandeh of peremptory norms, as well as the question of an illustrative list of jus cogens norms.13 The four reports prepared by the special rapporteur focus on these issues,14 as do the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens) adopted by the ilc on first reading in 2019.15 The lacking focus of international legal discourse on the question of modification of peremptory norms is quite easily explained:16 On the one hand, the basic concept as well as fundamental doctrinal questions regarding the criteria, identification, as well as legal consequences, are still subject to, at times fierce, debate.17 Taking into account the ongoing disagreement about which norms qualify as jus cogens,18 it does not come as a surprise that the seemingly second-​tier question of the modification of peremptory norms has not attracted much attention. On the other hand, the very nature of jus cogens, understood as “expressive of rules of international morality”,19 containing an “ethical minimum”,20 “deeply rooted in the international 13 14

15 16 17

18

19 20

Tladi First Report on Jus Cogens (above note 10), at para. 12. Tladi First Report on Jus Cogens (above note 10); Second Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​706) (2017); Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​ 714) (2018); Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019). Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​first session, General Assembly Official Records (A/​74/​10) (2019), Chapter v. For more general observations on the approach of international legal scholarship to jus cogens, see Jean d’Aspremont “Jus Cogens as a Social Construct Without Pedigree” (2016) 46 Netherlands Yearbook of International Law 85, at 86–​89. See Report of the Study Group on Fragmentation (above note 11), at para. 363. As the Special Rapporteur himself had to experience, even supposedly uncontested presumptions can lead to controversial debates, see Dire Tladi “Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal Reflections of the Special Rapporteur” (2019) 13 Florida International University Law Review 1137, at 1142. See Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006), at 104–​ 127; Thomas Weatherall Jus Cogens, International Law and Social Contract (Cambridge, 2015), at 124–​174; Sévrine Knuchel Jus Cogens: Identification and Enforcement of Peremptory Norms (Schulthess, 2015), at 49 et seq.; Second Tladi Report on Jus Cogens (above note 14), at paras. 40-​59. Hersch Lauterpacht Report on the Law of Treaties (above note 3), at 155; Similarly Fitzmaurice Third Report on the Law of Treaties (above note 4), at para. 76. Alfred Verdross “Forbidden Treaties in International Law” (1937) 31 American Journal of International Law 571; Alfred Verdross “Jus Dispositivum and Jus Cogens in International Law” (1966) 60 American Journal of International Law 55, 61 (“fundamental ethics”); on the impact of Verdross on the concept of jus cogens in general Bruno Simma “The Contribution of Alfred Verdross to the Theory of International Law” (1995) 6 European

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conscience”,21 protecting the public interest of international society,22 in short: reflecting and protecting fundamental values of the international community,23 makes it difficult to perceive that they could be subject to significant change,24 making any serious consideration of the criteria for such modification seem like a rather pointless academic endeavor. However, the question of modification of peremptory norms touches upon the very core of the concept of jus cogens and its doctrinal conundrums: It challenges the proposition that jus cogens is an expression of some immutable natural law principles.25 It forms part of the definition and therefore the criteria for identification of peremptory norms.26 It concerns the legal consequences

21

22 23

24 25

26

Journal of International Law 33, 50 et seq.; on the historical context and the motivation to use the concept of jus cogens against the 1919 Treaty of Versailles and Treaty of Saint-​ Germain-​en-​Laye see Felix Lange “Challenging the Paris Peace Treaties, State Sovereignty, and Western-​Dominated International Law –​The Multifaceted Genesis of the Jus Cogens Doctrine” (2018) 31 Leiden Journal of International Law 821, 824 et seq. Statement of Mr. Yasseen (A/​c n.4/​s r.683), at 63 (para. 39); repeated in a similar spirit as representative of Iraq at the Vienna Conference, see Official Records of the United Nations Conference on the Law of Treaties, Vienna -​Austria, 26 March-​24 May 1968 & 9 April-​22 May 1969, First Session, Fifty-​second meeting (A/​c onf.39/​11) (1969), at 296, para. 23. Ronald St. John Macdonald “The International Community as a Legal Community” in Ronald St. John Macdonald and Douglas M. Johnston (eds.) Towards World Constitutionalism (Oxford, 2005), at 870; Orakhelashvili (above note 18), at 46 et seq. See Draft Conclusion 3 and paras. 2 et seq. of the Commentary to Draft Conclusion 3 of the ilc Draft Conclusions (above note 15); Tladi First Report (above note 10), para. 63 and para. 71. Out of the vast literature see, e.g., Malcolm Shaw International Law (8th ed., Cambridge, 2017), at 93; Antônio Augusto Cançado Trindade “International Law for Humankind: Towards a New Jus Gentium (I)” (2015) 9 Recueil des cours de l’Académie de Droit International de la Haye 317, at 345 et seq. See Ulf Linderfalk Understanding Jus Cogens in International Law and International Legal Discourse (Elgar, 2020), at 94–​95, 98–​101; Knuchel (above note 18), at 131. See Dire Tladi First Report (above note 10), at para. 52; Christopher A. Ford “Adjudicating Jus Cogens” (1994) 13 Wisconsin International Law Journal 145, at 147; Robert Kolb Peremptory International Law –​Jus Cogens: A General Inventory (Hart, 2015), at 32; see also Statement by Mr. Dupuy (Holy Sea) at the Forty Fifth meeting (above note 21), at 258, para. 74. See Draft Conclusion 2, 4 (b) and 6(2) of the ilc Draft Conclusions (above note 15); Second Tladi Report on Jus Cogens (above note 14), at para. 37. It is, however, not convincing when the Special Rapporteur argues that the question of modifiability is not a criterion for jus cogens because the question of modifiability “comes after the identification of a norm as jus cogens”. The same is true for the criterion of non-​derogability which describes the legal consequences of an existing peremptory norm. Article 53 rather requires that the international community of States as a whole accepts and recognizes a norm as having the two special characteristics of jus cogens, its non-​derogability and its divergent requirements for modification. Against this background, the requirements for modification together with the non-​derogability standard describe what the international community has to

96 Payandeh of peremptory norms, having an impact on the law-​making process through treaties27 and customary international law.28 And it influences the possibility and feasibility of having a list of jus cogens norms29 since the recognition of a norm as peremptory makes it resilient against change and thereby hinders legal development. An analysis of the question of modification can therefore also lead to insights into the concept of jus cogens, its theoretical understanding as well as doctrinal implications. And while the question has until now not played a crucial role in international legal practice,30 it touches upon one of the most pertinent questions of the international legal order: the scope of the prohibition of the use of force and of possible exceptions to this prohibition. The generally recognized peremptory character of the prohibition of the use of force, as it is stipulated in Article 2(4) UN Charter and recognized as customary international law, raises the question of what this means for the potential

27 28 29 30

accept and recognize. See Tladi Second Report on Jus Cogens (above note 14), at para. 64. In this sense, the requirements for modification do not constitute a separate criterion for peremptory norms but form part of the acceptance and recognition requirement of Article 53 vclt, for an at least terminologically diverging view see Knuchel (above note 18), at 130 et seq. See Articles 53, 64 1969 Vienna Convention on the Law of Treaties; Draft Conclusions 10-​13 of the Draft Conclusions on Peremptory Norms (above note 15); Tladi Third Report on Jus Cogens (above note 14), at paras. 30 et seq. See Draft Conclusion 14 of the Draft Conclusions on Peremptory Norms (above note 15); Tladi Third Report on Jus Cogens (above note 14), at paras. 137 et seq. See Tladi Fourth Report on Jus Cogens (above note 14), at paras. 48 et seq.; and eventually Draft Conclusion 23 and Annex of the Draft Conclusions on Peremptory Norms (above note 15). The concept of jus cogens has, in general, not played too crucial a role in international legal practice. It has regularly not been decisive in decisions of international courts, and questions regarding the content of peremptory norms have been particularly absent from international practice. See Antonio Cassese International Law (2nd ed., Oxford, 2005), at 202 and 209; Erika de Wet “Jus Cogens and Obligations Erga Omnes” in Dinah Shelton (ed.) The Oxford Handbook of International Human Rights Law (Oxford, 2013), at 547–​548; Erika de Wet “Entrenching International Values through Positive Law: The (Limited) Effect of Peremptory Norms”, kfg Working Paper Series, No. 25, Berlin Potsdam Research Group ‘The International Rule of Law –​Rise or Decline?’ (2019), at 13; Thomas Kleinlein “Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies” (2015) 46 Netherlands Yearbook of International Law 173, at 175. See however also the comprehensive compilations of international practice concerning jus cogens in the four reports by ilc Special Rapporteur Dire Tladi as well as in the Commentary to the Draft Conclusions on Peremptory Norms (above note 15). See also the overview in Stefan Kadelbach “Genesis, Function and Identification of Jus Cogens Norms” (2015) 46 Netherlands Yearbook of International Law 147, at 153–​161.

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development and recognition of, for example, the admissibility of humanitarian intervention or of self-​defense against non-​State actors. Against this background, I will distinguish between and analyze the concept, the object, and the process of modification of peremptory norms of international law with a focus on the question of how the rules regarding the use of force can be subject to modification. 2

The Concept of Modification: Modification on a Sliding Scale

Modification can be understood as a change in the content of a norm or as the replacement of an existing norm by a new norm. From a conceptual perspective modification has to be distinguished from the emergence, abrogation and demotion of a peremptory norm. Furthermore, the question arises as to what exactly modification means. Distinguishing Modification from Emergence, Abrogation, and Demotion Modification is to be distinguished from the concept of emergence of a norm: while modification presupposes the existence of a norm which is then the object of change, emergence implies the development of a new norm that did not exist before. The Vienna Convention also employs this distinction: While Article 53 of the vclt speaks of the modification of an existing peremptory norm in the context of defining the concept of jus cogens, Article 64 of the vclt envisages the emergence of a new peremptory norm. At first view, the concept of modification also needs to be distinguished from abrogation, which is the abolishment of a peremptory norm without replacing it with a new norm. And also at first view, Article 53 of the vclt does not seem to envisage the possibility of abrogation.31 Most commentators addressing the issue, nonetheless, regard the abrogation of a peremptory norm as a possibility,32 at times making an a fortiori argument to modification.33 Others exclude this possibility with reference to the wording of Article 53 of 2.1

31 32 33

By contrast, the Draft Articles prepared by Special Rapporteur Sir Humphrey Waldock explicitly encompassed, in Article 13(4), the possibility of abrogation and modification of jus cogens norms. See Second Waldock Report on the Law of Treaties (above note 5), at 52. See Kolb (above note 25), at 103; Christos L. Rozakis The Concept of Jus Cogens in the Law of Treaties (Oxford, 1976), at 88–​89 (pointing out, however, that this is a “purely theoretical case”) and 93; Knuchel (above note 18), at 134 et seq. See Villiger (above note 10), at 673.

98 Payandeh the vclt.34 Upon closer look, however, there does not seem to be a conceptual difference between the modification and the abrogation of a peremptory norm: The abrogation of a legal norm does not lead to a normative black hole. The void is rather filled with other legal norms and principles. If, for example, a peremptory norm prohibiting specific acts of States is, hypothetically, abrogated, such acts are then, under the Lotus principle,35 allowed again. Every abrogation of a norm in international law leads to a modification of the legal situation. Modification of a norm and abrogation of a norm are therefore not to be distinguished from a conceptual perspective. The possibility of modification of a norm encompasses the possibility of its abrogation. Finally, the question arises whether the modification of a peremptory norm can leave the content of the norm untouched but only demote it from the status of a jus cogens norm to the rank of jus dispositivum. While such an abolition of the peremptory status of a norm is theoretically possible,36 it seems highly unlikely in practice.37 The international community of States as a whole would have to come to the conclusion that an existing norm of international law was at some point so fundamental that derogations from it were not possible but that subsequently it has lost this fundamental meaning while still being a norm of international law. 2.2 The Need for a Substantive Understanding of Modification The concept of modification of a norm can be understood in two different ways. Under a formal approach, modification requires the actual change of a norm itself, be it through an amendment of a treaty or through the emergence of a new norm of customary international law which replaces an existing customary norm.38 From a more substantive perspective, however, modification can also be understood as a change in the understanding of the content of a norm as the result of interpretative change without formal modification of the norm. 34 35 36

37 38

See Elie Nicoloudis La nullité de Jus Cogens et le développement contemporain du droit International public (Papazissi, 1974), at 39; Orakhelashvili (above note 18), at 128. See Jan Klabbers International Law (2nd Edition, Cambridge, 2017), at 25–​26. See Rozakis (above note 32) at 92–​93; Godefridus J.H. van Hoof Rethinking the Sources of International Law (Kluwer, 1983), at 167; Takeshi Minagawa “Jus Cogens in Public International Law” (1968) 6 Hitotsubashi Journal of Law and Politics 16, at 27; Ole Spiermann “Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens” (2002) 71 Nordic Journal of International Law 523, at 538. Sten Verhoeven Norms of Jus Cogens in International Law: A Positivist and Constitutionalist Approach, Katholieke Universiteit Leuven, PhD Thesis (2011), at 160; Kolb (above note 25), at 103. For such an understanding, see, e.g. Rozakis (above note 32) at 88.

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Depending on which understanding applies to the modification of peremptory norms in the sense of Article 53 of the vclt, the scope of application of the specific requirements for modifying peremptory norms39 changes significantly. If it applies only to formal modifications, the content of peremptory norms could be altered more easily, through interpretative change in accordance with the general rules of international law.40 If it applies to substantive changes as well, the higher requirements for modification of jus cogens would bar peremptory norms from change in a more far-​reaching manner, making peremptory norms more immutable even with regard to interpretative change. At first glance, Article 53 of the vclt seems to employ a formal understanding of modification that does not apply to normative change through interpretation.41 While the provision itself remains mute, the Convention uses the term modification to indicate formal changes of treaty provisions in the context of reservations to multilateral treaties,42 with regard to obligations or rights established for third States,43 and, most importantly, for the modification of multilateral treaties between two or more State parties in the form of an agreement.44 In all three instances modification occurs through a formalized act: a reservation, an expression of consent, or an agreement. The drafting history of Article 53 of the vclt supports, at least to a certain degree, such a formal understanding of the modification of peremptory norms. Following its special rapporteur Waldock,45 the ilc was of the opinion that a modification of jus cogens would “most probably be effected through a general multilateral treaty”.46 This understanding constituted the basis for discussion at the Vienna Conference and did not seem to be controversial among delegations. A strictly formal approach to the modification of peremptory norms seems, nevertheless, unconvincing, mainly for two reasons: First, the distinction between formal amendment or modification on the one hand and substantive 39 40 41

42 43 44 45 46

See Section 4.2. See, to this result, Raphaël van Steenberghe “State Practice and the Evolution of the Law of Self-​Defence: Clarifying the Methodological Debate” (2015) 2 Journal on the Use of Force and International Law 81. The distinction between interpretation and modification is also highlighted by the International Law Commission. See para. 1 of Commentary to Draft Article 38 of the Draft Articles on the Law of Treaties (above note 8); see also van Steenberghe (above note 40), at 92–​95. See Article 21(1) of the vclt. See Article 37 of the vclt. See Article 41 of the vclt. See Second Waldock Report on the Law of Treaties (above note 6), at 52. See para. 4 of the Commentary to Draft 50, of the Draft Articles on the Law of Treaties (above note 8).

100 Payandeh development through interpretative change on the other holds some value with regard to the law of treaties in general. It is decisive for the question of whether the requirements for the conclusion and entry into force of treaties as codified in the Vienna Convention47 apply. From a constitutional perspective it might also be relevant for the question of whether the development within an international treaty regime requires the involvement of parliament.48 However, formal treaty amendments are rare in international law, in particular with regard to multilateral treaties the amendment of which requires unanimity unless the treaty provides otherwise.49 Against the background of the apparent need to adapt existing treaties to changes in the reality of international life, dynamic forms of treaty interpretation are widely recognized and can lead to significant change in the content of treaty obligations. In this regard the subsequent practice of State parties plays a decisive role, either as an authentic means of interpretation under Article 31(3)(b) of the vclt, if it establishes the agreement of the parties regarding the interpretation of a treaty, or as a supplementary means of interpretation in the sense of Article 32 of the vclt, if it does not constitute such agreement.50 The dynamic interpretation of the UN Charter,51 the understanding of the European Convention on Human Rights as a “living instrument”,52 or the Inter-​American Court of Human Rights’ pro homine approach to the interpretation of human rights53 are but the most well-​known specifications of such a general dynamic-​evolutive approach to interpretation 47 48 49 50

51 52

53

See Articles 6–​25 of the vclt. See Stefan Kadelbach “Domestic Constitutional Concerns with Respect to the Use of Subsequent Agreements and Practice at the International Level” in Georg Nolte (ed.) Treaties and Subsequent Practice (Oxford, 2013), at 145. See Article 39 of the vclt; Anthony Aust Modern Treaty Law and Practice (3rd Edition, Cambridge, 2013), at 232 et seq. See paras. 23 et seq. of the Commentary to Draft Conclusion 4(2) and (3) of the Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties, Report of the International Law Commission, Seventieth Session, General Assembly Official Records (A/​73/​10) (2018). See Stefan Kadelbach “Interpretation of the Charter” in Bruno Simma, Daniel-​Erasmus Khan, Georg Nolte, Andreas Paulus (eds.) The Charter of the United Nations, A Commentary, vol. i, (Oxford, 3rd ed. 2012), at paras. 16 et seq. Case of Tyrer v. The United Kingdom, Judgement of the European Court of Human Rights, 25 April 1978, at para. 31; Bernadette Rainey, Elizabeth Wicks, and Clare Ovey Jacobs, White, and Ovey: The European Convention on Human Rights (7th Edition, Oxford, 2017), at 76–​80. Juridical Condition and Rights of Undocumented Migrants, Advisory Opinion, Judgement of the Inter-​American Court on Human Rights, 17 September 2003, at para. 156; Thomas M. Antkowiak and Alejandra Gonza The American Convention on Human Rights: Essential Rights (Oxford, 2017), at 2, 39.

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in international law. This does neither mean that international law is always interpreted in a dynamic manner, nor that all forms of dynamic interpretation are undisputed and wholeheartedly recognized. In general, however, interpretative change is a significant mechanism for the development of international law,54 regardless of whether the possibility that subsequent State practice can modify a treaty is explicitly recognized or not.55 Against this background, the concept of modification of peremptory norms has to be understood in a broad manner, also encompassing the modification of treaty norms through interpretative change, otherwise the very meaning of jus cogens as a class of norms which is subject to change only through a norm which shares the same rank and thereby characterized by a general “resistance to change”56 would be called into question.57 A substantive approach to the modification of peremptory norms, secondly, seems more convincing with regard to customary international law. While the possible sources of peremptory norms are still subject to debate,58 there is a growing consensus that customary international law constitutes the most

54 55

56

57 58

See, e.g. Ingo Venzke How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford, 2012). Article 38 of the Draft Articles on the Law of Treaties (above note 8) explicitly recognized this possibility but met considerable resistance by States and was therefore deleted by the Committee of the Whole at the Vienna Conference. See the debate in UN Conference on the Law of Treaties (above note 21), at 207–​215. See also Draft Conclusion 7(3) of the ilc Draft Conclusions on Subsequent Agreements and Subsequent Practice (above note 50) stipulating that such a possibility “has not been generally recognized”, while the Commentary, at para. 38, also concludes that “there exists some support in international case law that (…) the agreed subsequent practice of the parties theoretically may lead to modifications of the treaty”. Christian Hillgruber “The Right of Third States to Take Countermeasures” in Christian Tomuschat and Jean-​Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes (Martinun Nijhoff, 2006), at 265, 292; Ulf Linderfalk “The Effect of Jus Cogens Norms: Whoever Opened Pandora’s Box, Did You Ever Think About the Consequences?” (2008) 18 European Journal of International Law 853, at 868; Rozakis (above note 32), at 85 et seq. This characteristic feature of jus cogens is also highlighted in the statement of Expert Consultant Sir Humphrey Waldock, UN Conference on the Law of Treaties (above note 21), at para. 82. For a skeptical view, see Thomas Kleinlein “Matters of Interpretation: How to Conceptualize and Evaluate Change of Norms and Values in the International Legal Order”, kfg Working Paper Series, No. 24, Berlin Potsdam Research Group “The International Rule of Law –​Rise or Decline?” (2018), at 12–​13. The relationship between the concept of a legal hierarchy and special, qualified requirements for law-​making is also highlighted by Kleinlein (above note 30), at 194–​195. See references above in note 18.

102 Payandeh probable basis for jus cogens.59 As a source of international law customary international law is more fluid and dynamic than treaty law. It emerges and develops not according to formalized mechanisms –​such as conclusion, ratification, entry into force, or amendment –​but in a more unsolidified normative process of interaction between States and other actors, through practice as well as through communicative acts.60 The distinction between formal modification and interpretation of a norm, which holds some value with regard to international treaties, loses its persuasive power in the context of unwritten customary international law.61 Against this background, a formal approach to the modification of jus cogens cannot account for the fact that peremptory norms are customary in nature and that customary international law develops according to more informal rules and more fluid processes. While the International Law Commission and the delegates at the Vienna Conference assumed that a modification of a peremptory norm would “most probably” be brought along through a multilateral treaty, they did not exclude the possibility of a modification of jus cogens through the development of customary international law. The concept of modification under Article 53 of the vclt therefore encompasses both formal modification through treaty amendments as well as dynamic change brought along through interpretative change or through the development of customary international law.62 With regard to the prohibition of the use of force, this means that not only the formal modification of Article 2(4) of the UN Charter, brought along by an amendment (Article 108 UN Charter) or alteration (Article 109 UN Charter) of the Charter, must meet the standard for modification of peremptory norms under Article 53 vclt,63 but that the prohibition of the use of force as a jus cogens norm is also protected against alteration through a change in State 59

60

61 62 63

See, to this end, Draft Conclusion 5 of the ilc Draft Conclusions (above note 15); Second Tladi Report on Jus Cogens (above note 14), at paras. 43 et seq.; Michael Byers “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules” (1997) 66 Nordic Journal of International Law 211, at 220 et seq. See, e.g., Anthea Roberts and Sandesh Sivakumarani “The Theory and Reality of the Sources of International Law” in Malcolm D. Evans (ed.) International Law (5th Edition., Oxford, 2018), at 89, 111–​112; Monica Hakimi “Making Sense of Customary International Law” (2020) 118 Michigan Law Review 1487, at 1493–​1496. On the problem of interpretation of customary international law, see, e.g., Orfeas Chasipis Tassinis “Customary International Law: Interpretation from Beginning to End” (2020) 31 European Journal of International Law 235, at 244 et seq. See, in a similar vein, Paulina Starski “Silence within the Process of Normative Change and Evolution of the Prohibition on the Use of Force: Normative Volatility and Legislative Responsibility” (2017) 4 Journal on the Use of Force and International Law 14, at 43. On this standard see Section 4.2.

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practice or interpretation. While this does not mean that any interpretative change has to meet this higher standard,64 the basic thrust of Article 53 vclt that a peremptory norm can only be modified through a norm having the same character applies also to substantive change of peremptory norms beyond formal amendment. 3

The Object of Modification: What’s Peremptory in a Norm?

The scope of application of the special regime of modification of peremptory norms depends significantly on the question of what exactly is peremptory in a norm. This issue is not often addressed explicitly, with international legal discourse rather focusing on the question of which substantive norms qualify as jus cogens. As a starting point, Article 53 of the vclt ascribes peremptory character to specific “norms”. There is, however, no firmly established meaning of the term “norm” in international law. As far as the term refers to the linguistic expression or textual embodiment of a norm, it does not constitute a suitable point of reference for peremptoriness.65 The concept of jus cogens rather refers to the normative dimension of a legal norm. The International Court of Justice, in the Jurisdictional Immunities case, accordingly, speaks of rules of jus cogens rather than of norms.66 With regard to the range of the peremptory character of such a norm, two questions with implications for the modification of peremptory norms arise: The first question concerns the status of exceptions to peremptory norms. Depending on whether exceptions to peremptory norms themselves are peremptory or not, the development of further exceptions to jus cogens norms may be guided by different requirements. The second question concerns the issue of whether the peremptory nature extend to norms as such or only to their core, leaving the periphery as jus dispositivum. If only the core of a norm is of peremptory nature, one could argue that modifications that do not touch upon the core guarantee of a jus cogens norm can occur according to the general rules of development of international legal rules. If, however, a jus cogens norm is peremptory as a whole, then, at least in principle,

64 65

This point is elaborated in more detail in Section 4.2.4. See Linderfalk (above note 56), at 857. For the view that norm and text are identical see Jörg Kammerhofer “The Resilience of the Restrictive Rules on Self-​Defence” in Marc Weller (ed.) The Oxford Handbook of the Use of Force in International Law (Oxford, 2015), at 647. 66 See Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), icj Reports 2012, at paras. 92 et seq.

104 Payandeh the requirements for a modification of jus cogens have to apply to any change in the norm. The answers to these two questions are therefore highly significant for the concept of modification as they delineate the scope in which the rules on modifying jus cogens apply. 3.1 The Relationship between Rule and Exception The question of what exactly is peremptory in a norm most pertinently arises with regard to the relationship between prohibitory rules and their exceptions in international law. Since peremptory norms are defined as norms from which no derogation is permitted the compatibility of norms that are subject to exceptions with the concept of jus cogens is called into question. This problem is mainly debated with regard to the prohibition of the use of force under Article 2(4) of the UN Charter the peremptory nature of which is generally acknowledged67 but which is subject to exceptions under the UN Charter,68 notably Security Council action under Chapter vii and the right to self-​defense according to Article 51 of the UN Charter.69 Since the elevation of a norm of general international law into the rank of jus cogens does not change the content of that norm70 it is unquestionable that those explicitly codified and recognized exceptions to the prohibition of the use of force apply, notwithstanding the peremptory nature of the prohibition.71 Against this background,

67

See Lit. (a) of the Annex to the Draft Conclusions on Peremptory Norms (above note 15); Orakhelashvili (above note 18) at 50–​51. But see also James A. Green “Questioning the Peremptory Status of the Prohibition of the Use of Force” (2011) 32 Michigan Journal of International Law 215, at 225 et seq. who eventually does not exclude the possibility that the prohibition of the use of force is a peremptory norm but highlights the problems of this assumption. 68 On the implications of the peremptory character of the prohibition of the use of force for the concept of “intervention by invitation” see, e.g., Olivier Corten The Law Against War (Hart, 2010), at 250–​259. 69 On the possible distinction between “simple peremptory norms” which are subject to exceptions and “reinforced peremptory norms” which are not, see Charles Leben “Obligations Relating to the Use of Force and Arising from Peremptory Norms of International Law” in James Crawford (ed.) The Law of International Responsibility (Oxford, 2010) 1197, at 1202. 70 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Reports 1996, p. 226, at para. 83; Orakhelashvili (above note 18), at 68; Spiermann (above note 36), at 538. 71 On different doctrinal approaches to cope with this problem see André de Hoogh “The Compelling Law of Jus Cogens and Exceptions to Peremptory Norms, To Derogate or Not to Derogate, That Is the Question!” in Lorand Bartels and Federica Paddeu (eds.) Exceptions in International Law (Oxford, 2020), at 127.

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generally recognized exceptions to norms with a peremptory character cannot be regarded as inadmissible derogations in the sense of Article 53 vclt.72 Different approaches to the concept of exceptions have, however, different consequences for the question of what in a jus cogens norm is peremptory and, accordingly, for the question of how a peremptory norm can be modified, in particular with regard to the requirements for the subsequent emergence of an exception to a peremptory norm. Under a first possible approach, the prohibition loses its applicability when the requirements of an exception are fulfilled in a particular case.73 With regard to the prohibition of the use of force, this would mean that any instance of force that fulfils the requirements of a generally accepted exception, such as the right to self-​defense, would be excluded from the scope of the prohibition. If this approach is to be understood in the sense that any exception recognized under general international law –​regardless of whether that exception itself has the status of jus cogens or stems from a jus dispositivum norm –​can justify a violation of the peremptory prohibition of the use of force, it turns out to be highly problematic. Leaving aside general objections against the understanding that exceptions to a prohibitory norm restrict the scope of application of that norm,74 this approach is irreconcilable with the very concept of jus cogens. It undermines the proposition that peremptory norms are not only non-​derogable but also not subject to modification by norms other than jus cogens norms. If the emergence of a jus dispositivum norm justifying the use of force could curtail the scope of application of the jus cogens prohibition of the use of force this would contradict the recognition that peremptory norms are hierarchically superior to other rules of international law.75 72

See Sondre Torp Helmersen “The Prohibition of the Use of Force as Jus Cogens: Explaining Apparent Derogations” (2014) 61 Netherlands International Law Review 167, at 175–​176; de Hoogh (above note 71), at 146–​147; Yoram Dinstein War, Aggression and Self-​Defence (6th Edition, Cambridge, 2017), at 111; Corten (above note 68), at 200–​201; Nico Schrijver “Challenges to the Prohibition to Use Force: Does the Straitjacket of Article 2(4) UN Charter Begin to Gall Too Much?” in Niels M. Blokker and Nico Schrijver (eds.) The Security Council and the Use of Force: Theory and Reality –​A need for change? (Brill, 2005) 31, at 42. For the contrary view see Green (above note 67), at 229. 73 See, e.g., Dinstein (above note 72), at 111; Patrick M. Butchard “Back to San Francisco: Explaining the Inherent Contradictions of Article 2(4) of the UN Charter” (2018) 23 Journal of Conflict & Security Law 229. For a differentiating approach Helmersen (above note 72), at 167. 74 See de Hoogh (above note 71), at 130–​137; Jörg Kammerhofer Uncertainty in International Law (Routledge, 2011), at 49–​51. 75 Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 15). See Tladi First Report on Jus Cogens (above note 10), at para. 69. For a differentiated analysis

106 Payandeh According to a second approach not only the prohibition of the use of force but also the exceptions to the prohibition, as they are laid down in the UN Charter, are recognized as jus cogens.76 This approach solves the difficulty that exceptions to a jus cogens norm seem problematic since the superior rank of the jus cogens norm would invalidate the conflicting exception or at least lead to its applicability. It also avoids the fallacy of the first approach since the recognition of the exceptions to the prohibition as jus cogens would result in the applicability of the requirements for modification of a peremptory norm not only to the prohibition but also to its exceptions. However, both from a conceptual as well as from a doctrinal perspective, it does not seem convincing to regard the exceptions to the prohibition of the use of force themselves as jus cogens rules. With regard to the competence of the Security Council to intervene militarily or to authorize the use of force,77 there is hardly any evidence that the international community as a whole has recognized the relevant rules under Chapter vii of the UN Charter as peremptory.78 The claim of jus cogens to universality does not seem compatible with the fact that UN membership is not mandatory, that the peremptory character of the prohibition of the use of force was already recognized at a time when not all States were members of the UN, and that legal consequences of the UN Charter for third States cannot easily be assumed.79 But even with regard to the right to self-​defense, which undoubtedly is part of customary international law and therefore applicable to all States regardless of UN membership status,80 it seems problematic to regard it as part of jus cogens. Self-​defense constitutes a right not an obligation of States. The main consequence of the concept of jus cogens, that derogations from peremptory norms are not permissible, does not fit the right to and critical view of the concept of hierarchical superiority of jus cogens see Kleinlein (above note 30). 76 See, e.g., Second Report of the Special Rapporteur (James Crawford) on State Responsibility (A/​c n.4/​498) (1999), at para. 288; Erika de Wet The Chapter vii Powers of the United Nations Security Council (Hart, 2004), at 191; Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (Cambridge, 2010), at 27; Starski (above note 62), at 42–​43. See also Report of the Study Group on Fragmentation (above note 11), at para. 374. 77 See Christine Gray International Law and the Use of Force (4th Edition, Oxford, 2018), at 341 et seq. 78 See Helmersen (above note 72), at 183–​184; Linderfalk (above note 24), at 185; Butchard (above note 73), at 241–​243. 79 See Stefan Talmon “Commentary on Article 2 (6)” in Simma et al. (above note 51), at para. 3 et seq. 80 Military and Paramilitary Activities in and against Nicaragua (Nicaragua. v. United States), icj Reports 1986, p.14, at paras. 183 et seq.; Albrecht Randelzhofer and Oliver Dörr, “Commentary on Article 2 (4)” in Simma et al. (above note 51), at para. 13.

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self-​defense. While peremptory norms reflect fundamental values of the international community, the right to self-​defense is a classical right of individual States. Since States may choose to exercise this right or not, it is difficult to argue that it has been accepted and recognized as a non-​derogable right.81 This is true, in particular, for the right to collective self-​defense. A third approach trying to reconcile the peremptory character of the prohibition of the use of force with its exceptions emphasizes that what is peremptory is not the prohibition of the use of force but the prohibition of the unlawful use of force.82 While this approach, most recently advanced by Christian Tams, rightly points out that the peremptory status of the prohibition of the use of force does not change the content of the prohibition and does not exclude the applicability of its well-​recognized exceptions, it goes too far when it is meant to accept that any use of force that is legal under international law is compatible with the jus cogens prohibition of the use of force. Brought to its logical conclusion, this approach would accept that new exceptions to the prohibition of the use of force could emerge under general international law and could limit the scope of the peremptory prohibition of the use of force regardless of whether they themselves are recognized as peremptory.83 As has already been pointed out, such an approach neglects the proposition of Article 53 of the vclt that a peremptory norm can only be modified by a norm having the same character. It is therefore incompatible with the concept of jus cogens.84 A convincing approach to the relationship between rule and exception in the context of peremptory norms must meet two challenges: On the one hand, it must account for the fact that most rules of international law are not absolute but subject to exceptions. Recognizing the peremptory nature of a norm does not void those exceptions as the prohibition of the use of force aptly shows. On the other hand, accepting that peremptory norms can be subject to 81

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83 84

See André de Hoogh “Jus Cogens and the Use of Armed Force” in Weller (above note 65), at 1173; van Steenberghe (above note 40), at 91, footnote 59; Kirsten Schmalenbach “Commentary on Article 53” in Oliver Dörr and Kirsten Schmalenbach (eds.) Vienna Convention on the Law of Treaties, A Commentary (Springer, 2012), at para. 40, pointing out that peremptory rules are “never permissive” but predominantly “proscriptive”; Butchard (above note 73), at 244. See Christian J. Tams “Self-​Defence against Non-​State Actors: Making Sense of the ‘Armed Attack’ Requirement” in Mary Ellen O’Connell, Christian Tams and Dire Tladi Self-​Defence against Non-​State Actors (Cambridge, 2019), at 111. See also Second Crawford Report (above note 76), at para. 289. As a consequence, proponents of this approach doubt that the jus cogens character of the prohibition of the use of force has any relevance for the interpretation and scope of its exceptions, see Tams (above note 82), at 111. See also de Hoogh (above note 81), at 1171.

108 Payandeh exceptions cannot lead to the conclusion that peremptory norms only apply in as far as no exception is applicable even in cases where the exception itself is not of a peremptory nature. Otherwise, the scope and content of a peremptory norm would be subject to the emergence and development of the scope and content of jus dispositivum, a result contradicting the very nature of jus cogens. Accordingly, while exceptions to peremptory norms will regularly not be of a peremptory nature themselves, the content of the peremptory norm is limited by its recognized exceptions. What does this mean with regard to the prohibition of the use of force? International law does not prohibit the use of force in an absolute manner but allows for exceptions. When the prohibition of the use of force entered into force with the UN Charter, those exceptions were already part of the legal rules regulating the use of force. The peremptory nature of the prohibition of the use of force hence only extends insofar as the rule itself prohibits the use of force.85 When the international community of States as a whole accepted and recognized the prohibition of the use of force as a peremptory norm, it did so against the background of the generally agreed scope and content of the norm while also accepting the recognized exceptions to the prohibition. Accordingly, the International Law Commission, already in 1966, regarded not the prohibition of the use of force as such, but rather “the law of the Charter concerning the prohibition of the use of force” as a “conspicuous example” of a jus cogens norm,86 a formulation relied on by the International Court of Justice in the Nicaragua case.87 Subsequently, the ilc has referred to “the prohibition of aggression” as a jus cogens norm,88 thereby also implying that only the use of force that is not covered by a recognized ground for justification is in violation of the jus cogens prohibition of the use of force. The position taken here, therefore, has strong similarities to the approach advanced by Christian Tams. It however highlights more strongly that 85 86

87 88

See Mary Ellen O’Connell “Self-​Defence, Pernicious Doctrines, Peremptory Norms” in O’Connell, Tams and Tladi (above note 82), at 232. Para. 1 of the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties (above note 8). This point is emphasized by Dire Tladi “The Use of Force in Self-​Defence against Non-​State Actors, Decline of Collective Security and the Rise of Unilateralism: Whither International Law?” in O’Connell, Tams and Tladi (above note 82), at 27 et seq. Military and Paramilitary Activities case (above note 80), at para. 190; On different readings of this reference see Green (above note 67), at 223; Corten (above note 68), at 209–​ 210; Orakhelashvili (above note 18), at 50. Para. 4 of the Commentary to Article 40 of the Articles on State Responsibility (above note 11).

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exceptions to a jus cogens norm cannot simply emerge or develop in the form of ordinary international norms, as jus dispositivum. While the exceptions do not need to be peremptory norms by themselves, they can only limit the scope of a peremptory norm or justify conduct that would otherwise be in violation of a peremptory norm if they meet the requirements needed for the modification of jus cogens.89 3.2 Hard at the Core, Soft in the Periphery? When a norm is recognized as peremptory, the question may arise as to how far its peremptory nature extends: does it encompass the norm as a whole or is it only the core of the norm that is part of jus cogens? As already indicated, the answer to this question has ramifications for the scope of application of the rules regarding the modification of peremptory norms. Again, the prohibition of the use of force can serve as the main example. If the prohibition as such is part of jus cogens, then any modification regarding the scope of the prohibition, any expansion of the established exceptions, and any emergence of new exceptions has to meet the requirements for the modification of peremptory norms. If, however, only the core content of the prohibition is attributed the status of jus cogens, it might be argued that controversial questions surrounding the prohibition of the use of force –​concerning the legality of humanitarian intervention, the use of force by a State to protect its nationals abroad, the temporal scope of the right to self-​defense, or the possibility of self-​defense against non-​State actors90 –​do not touch upon the core of the prohibition and are therefore outside the scope of jus cogens and its heightened modification requirements. The latter understanding may be partly responsible for the lacking relevance of the jus cogens nature of the prohibition of the use of force in the discourse on controversial aspects of the use of force. At first glance Article 53 of the vclt seems to bar any interpretation that distinguishes between the core content and the periphery of the norm and ascribes peremptory status only to its core. The provision speaks of a “norm” as such which is recognized as peremptory and not of particular components of a norm that may be regarded as peremptory. As has already been pointed out, however, the concept of a “norm” in international law is far from clear. Accordingly, there is some debate: While the vast majority of authors generally 89 90

See Section 4.2. For an overview over the developments and current debates see Claus Kreß “Major Post-​Westphalian Shifts and Some Important Neo-​Westphalian Hesitations in the State Practice on the International Law on the Use of Force” (2014) 1 Journal on the Use of Force and International Law 11.

110 Payandeh regard the prohibition of the use of force91 as such to be of a peremptory character,92 others advance the position that only the prohibition of aggression constitutes jus cogens.93 At times it is highlighted that the peremptory prohibition of aggression requires an aggressive intention on the part of the State using military force.94 At times it is argued that only the uncontroversial core of the prohibition of the use of force, instances that are undoubtedly aggression, fall within the ambit of the jus cogens prohibition of the use of force.95 And at times it is pointed out that not all forms and consequences of a violation of the prohibition of the use of force have been accepted and recognized as peremptory so that not every aspect and legal consequence of the prohibition of the use of force is attributed peremptory character.96 With the criteria for the identification of peremptory norms subject to debate and far from clear, it proves difficult to decide whether the prohibition of the use of force is part of jus cogens as a whole or only with regard to its core content. As a starting point, it can be ascertained that the prohibition of the use of force has long been considered the most obvious example of a jus cogens norm, with commentators usually not further scrutinizing the scope of its peremptoriness. With regard to the substance of the arguments advanced for 91

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93 94 95 96

There is, however, a rather widespread consensus that the prohibition of the threat of force does not constitute jus cogens. See Dinstein (above note 72), at 156; Marco Roscini “Threats of Armed Force and Contemporary International Law” (2007) 54 Netherlands International Law Review 229, at 256–​258. See, e.g., James Crawford Brownlie’s Principles of Public International Law (8th edition, Oxford, 2012), at 595; Orakhelashvili (above note 18), at 50–​51; Gray (above note 77), at 32; Aust (above note 49), at 279; Schmalenbach (above note 81), at para. 81; O’Connell (above note 85), at 231–​232; Ian M. Sinclair Vienna Convention on the Law of Treaties (2nd Edition., Manchester, 1984), at 215–​216; Maurizio Ragazzi The Concept of International Obligations Erga Omnes (Oxford, 1997), at 77; Martin Dixon, Textbook on International Law (7th Edition, Oxford, 2013), at 42. For a discussion of this topic, see in this volume Olivier Corten and Vaios Koutroulis “The Jus Cogens Status of the Prohibition of the Use of Force: What is its Status and Does it Matter” (Chapter 22). See Lauri Hannikainen Peremptory Norms ( Jus Cogens) in International Law (Lakimiesliiton Kustannus, 1988), at 326–​356. See Rein Müllerson “Jus ad bellum: Plus ça change (le monde) plus c‘est la même chose (le droit)?” (2002) 7 Journal of Conflict & Security Law 149, at 169; Roscini (above note 91), at 257. Stefan Kadelbach Zwingendes Völkerrecht (Duncker & Humblot, 1992), at 226–​251. In a similar direction Gelijn Molier “Humanitarian Intervention and the Responsibility to Protect After 9/​11” (2006) 53 Netherlands International Law Review 37, at 54–​60; Georg Nolte Eingreifen auf Einladung (Springer, 1999), at 138; Nataliono Ronzitti “Use of Force, Jus Cogens and State Consent” in Antonio Cassese (ed.), The Current Legal Regulation of the Use of Force (Martinus Nijhoff, 1986) 147, at 151–​152.

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restricting the scope of the peremptory norm, it seems unconvincing to limit the jus cogens content to force employed with some kind of aggressive intent. The intent of States is, in general, not a criterion for establishing whether an obligation has been breached and whether a State is internationally responsible for a wrongful act.97 Any subjective requirement must therefore follow from the substantive, primary norm itself. But even if the intention of the acting State to resort to the use of force was required under Article 2(4) of the UN Charter,98 international law in general and the prohibition of aggression, in particular, are oblivious with regard to the motives underlying military action of a State.99 With the possible exception of instances of unintended use of force –​which in practice, however, seem to be dealt with more as a matter of diplomacy than as a legal question100 –​, the motive of a State that resorts to the use of force against another State is irrelevant. It seems similarly unconvincing to attribute peremptory character only to the undisputed aspects of the prohibition of the use of force and to treat contested questions as belonging to the category of jus dispositivum. There is no logical or even plausible connection between the question of the content of a norm and its peremptory character. The emergence of a jus cogens norm requires the existence of a norm of general international law without distinguishing between uncontested and contested aspects of the content of such a norm. Leaving aside the additional problem that it is hardly possible to clearly distinguish the contested from the uncontested aspects of the jus ad bellum, the need for interpretation of a norm is no argument against the recognition of such norm as peremptory.101 But even assuming the merits of this argument, the pitfalls of uncertainty regarding the content of the prohibition of the use of force cannot be sidestepped by focusing on the prohibition of aggression instead. The prohibition of aggression is, on its part, subject to debate with regard to its content as well as its relationship with the prohibition of the use of force. The uncertainties start with the question whether aggression is actually just a synonym for the unjustified use of force. While some commentators highlight 97

The International Law Commission deliberately opted for an objective approach to State responsibility, see James Crawford State Responsibility: The General Part (Cambridge, 2013), at 60–​62. 98 This requirement is advanced by Corten (above note 68), at 76–​84; Christian Henderson The Use of Force and International Law (Cambridge, 2018), at 75–​79. 99 Corten (above note 68), at 76–​77; Dinstein (above note 72), at 156; Henderson (above note 98), at 76–​77; de Hoogh (above note 81), at 1175. 100 See Henderson (above note 98), at 77–​78. 1 01 Ruys (above note 76), at 27.

112 Payandeh the distinguishing characteristics of aggression and the use of force,102 the Definition of Aggression adopted by the General Assembly in 1974,103 arguably the most authoritative pronouncement on the issue,104 rather reflects a parallel understanding of the two concepts.105 A clear and unequivocal distinction between the prohibition of aggression and the prohibition of the use of force, in any case, does not seem possible.106 It, therefore, seems consistent that the International Law Commission, in its recent work on peremptory norms, employs the terms synonymously.107 The most striking argument against the restrictive approach to the jus cogens character of the use of force is, however, its lack of resonance within the practice of States as well as international organizations. Statements made by States overwhelmingly support the conclusion that the prohibition of the use of force as a whole enjoys the status of jus cogens.108 This understanding is furthermore supported by the practice of States to include proclamations in various treaties emphasizing that they do not intend to derogate from or impair their obligations under the UN Charter with regard to the maintenance of international

1 02 See, e.g., Helmersen (above note 72), at 187–​188; Ragazzi (above note 92), at 74 et seq. 103 UN General Assembly Resolution 3314 (xxix)(A/​r es/​3314(xxix)) (1974) (‘Definition of Aggression’). 104 Dinstein (above note 72), at 131. Article 8bis of the Rome Statute of the International Criminal Court as inserted by the Kampala Conference (Resolution rc/​Res.6, 11 June 2010) builds upon this definition, see Kai Ambos Treaties on International Criminal Law, Volume ii: The Crimes and Sentencing (Oxford, 2014), at 188. The “threshold criteria” in Article 8bis (1) according to which the crime of aggression requires an act of aggression which “by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations” does not clarify the scope of aggression but can rather be understood as a reaction to the uncertainties surrounding the prohibition of aggression and of the use of force in general. 105 De Hoogh (above note 81), at 1173–​1175. 106 Andreas L. Paulus “Jus Cogens in a Time of Hegemony and Fragmentation: An Attempt at a Re-​appraisal” (2005) 74 Nordic Journal of International Law 297, at 306, footnote 29; de Hoogh (above note 81), at 1174–​1175; Henderson (above note 98), at 24–​25; Ruys (above note 76), at 27, footnote 110. 107 See Tladi Fourth Report on Jus Cogens (above note 14), at para. 62. The Special Rapporteur, however, also highlights that the report remains agnostic as to the question of the scope of the prohibition and its exceptions (para. 68). 108 For a comprehensive analysis see Corten (above note 68), at 201–​207. For an analysis of the positions of States at the Vienna Conference see Jerzy Sztucki Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical Appraisal (Springer, 1974), at 119–​121; Sinclair (above note 92), at 218.

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peace and security, thereby referencing the rules of the Charter on the use of force as a whole.109 The work of the International Law Commission further supports this conclusion. At the early stages of the work on the law of treaties, Lauterpacht cited the prohibition of aggressive war as an example of jus cogens.110 Fitzmaurice referred to wars of aggression.111 Waldock, however, more broadly spoke of “the law of the Charter concerning the use of force”112 and proposed a draft article that would have declared “the use or threat of force in contravention of the principles of the Charter of the United Nations” as jus cogens.113 While the 1963 Draft Articles did not include any examples of jus cogens norms, the Commission pointed out, in its commentary, that “[t]‌he law of the Charter concerning the prohibition of the use of force in reality presupposes the existence in international law of rules having the character of jus cogens”114 and counted the “unlawful use of force contrary to the principles of the Charter” to the group of “most obvious and best settled rules of jus cogens”.115 The commentary to the Draft Articles of 1966 eventually named “the law of the Charter concerning the prohibition of the use of force” as a “conspicuous example” of a jus cogens norm.116 The ilc’s work on State responsibility, at first glance, seems a little more ambiguous. In its early debates, the Commission unequivocally recognized the prohibition of aggression as a jus cogens norm, but also expressed doubts as to the peremptory character of the whole set of norms guaranteeing the territorial integrity of States from coercive intrusion.117 Special rapporteur Roberto Ago explicitly expressed hesitation to ascribe peremptory status to “certain limited actions involving the use of force in foreign territory” and therefore to all 109 See the examination of Corten (above note 68), at 211–​213; Helmersen (above note 72), at 189. 110 Lauterpacht Report on the Law of Treaties (above note 3), at 155 Article 15. 111 Para. 76 of the Commentary to Article 17 in Fitzmaurice Third Report on the Law of Treaties (above note 4), at 40. 112 Para. 1 of the Commentary to Article 13 in the Second Waldock Report on the Law of Treaties (above note 5), at 52. 113 Id., Article 13(2)(a). 114 Article 37 of the 1963 ilc Articles on the Law of Treaties (above note 7). 115 Ibid. 116 Para. 1 of the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties (above note 8). 117 Paras. 23-​24 of the Commentary to Draft Article 33 of the Draft Articles on the Responsibility of a State for its Internationally Wrongful Acts, Report of the International Law Commission, Thirty-​Second Session, General Assembly Official Records (A/​35/​10) (1980).

114 Payandeh instances of the prohibition of the use of force.118 The Commission, however, also referenced its work on the law of treaties with regard to possible examples of peremptory norms, including the “unlawful use of force”119 and held that the prohibition of the use of force, as encompassed by the UN Charter, is a peremptory norm.120 Eventually, the Draft Articles adopted in 2001 on Second Reading do not engage with the content of peremptory norms.121 The Commentary primarily speaks of the prohibition of aggression as a peremptory norm122 while also referring to the “use of force”.123 That the phrase “prohibition of aggression” does not indicate a more restrictive understanding of the peremptory prohibition of the use of force124 is further underlined by the fact that the Commission, while referring to the prohibition of aggression as an 118 Addendum –​Eighth Report of the Special Rapporteur (Roberto Ago) on State Responsibility –​the Internationally Wrongful Act of the State, Source of International Responsibility (A/​c n.4/​318) (1980), at para. 66. 119 Para. 18 of the Commentary to Draft Article 19 of the Articles on State Responsibility, Report of the International Law Commission, Twenty-​Eighth Session, General Assembly Official Records (A/​31/​10) (1976). 120 Para. 18 of the Commentary to Article 34 of the 1980 Articles on State Responsibility (above note 117). 121 Overall, one has to bear in mind that the ilc, in the Articles on State Responsibility (above note 11), was not concerned with the concept of jus cogens as such, and even to a lesser degree with specific peremptory norms and their content. Peremptory norms only come into play in the context of the scope of application of circumstances precluding wrongfulness (Article 26) and, in particular, countermeasures (Article 50(1)(d)) and as a point of reference for special consequences attached to serious breaches of obligations under peremptory norms of general international law (Part Two, Chapter iii, and, in particular, Article 40). In particular, Article 50 is silent on the peremptory nature of the prohibition of the use of force. While Article 50(1)(a) immunizes the prohibition of the threat or use of force as embodied in the UN Charter against countermeasures and Article 50(1)(d) does the same for “other obligations under peremptory norms of general international law”, the wording deliberately does not address whether and to what extent the prohibition of the use of force is jus cogens. See para. 9 of the Commentary to Article 50 and para. 8 of the Commentary to Article 40 of the Articles on State Responsibility (above note 11). 122 Para. 5 of the Commentary to Article 26 of the Articles on State Responsibility (above note 11). 123 Id., para. 6 of the Commentary to Article 41. See also already Report of the International Law Commission, Fifty-​First Session, General Assembly Official Records (A/​54/​10) (1999), at para. 389. 124 At one point, however, the Commission seems to assume that aggression constitutes a qualified form of the use of force. See Para. 4 of the Commentary to Article 40 of the Articles on State Responsibility (above note 11). See also para. 8: “It must also be borne in mind that some of the peremptory norms in question, most notably the prohibitions of aggression and genocide, by their very nature require an intentional violation on a large scale”.

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example of jus cogens, cites its work on the law of treaties and its referencing by the International Court of Justice in the Nicaragua decision, both encompassing the broader concept of the prohibition of the use of force.125 Overall, the work of the International Law Commission on State responsibility does not provide an argument in favor of a restrictive understanding of the jus cogens scope of the prohibition of the use of force.126 In conclusion, the special requirements for the modification of jus cogens extend to the full scope of peremptory norms: They encompass both possible exceptions to a peremptory norm as well as the norm as a whole, its entire content and not only its core regulation. This leads over to the question of how peremptory norms can be modified and how far the process of modification of jus cogens is different from the regular process of legal development in international law. 4

The Process of Modification

Article 53 of the vclt states that a peremptory norm can only be modified by a subsequent norm having the same character. This rather apodictic pronouncement raises the question of what kind of “norms” are suitable for changing peremptory norms and what exactly the requirements for such a modification are. 4.1 Instruments of Modification 4.1.1 Modification within the Sources of International Law In 1966, the ilc was of the opinion that a modification of jus cogens would “most probably be effected through a general multilateral treaty”.127 In this regard, two different avenues are conceivable: First, a multilateral treaty that encompasses a peremptory norm could be formally amended. The prohibition of the use of force, for example, could, at least in theory, be modified through an amendment under Chapter xviii of the Charter either through narrowing the scope of Article 2(4) UN Charter or through the expansion or introduction

125 See para. 4 of the Commentary to Article 40 of the Articles on State Responsibility (above note 11). 126 See also the conclusion reached by Corten (above note 68), at 209; Spiermann (above note 36), at 538–​541. 127 Para. 4 of the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties (above note 8), which built on the Second Waldock Report on the Law of Treaties (above note 5), at para. 6.

116 Payandeh of exceptions to the provision.128 Second, a different multilateral treaty could be concluded creating a new norm inconsistent with an existing peremptory norm.129 If the new treaty norm fulfills the requirements of a peremptory norm, it would not conflict with but rather modify the existing peremptory norm.130 As has become apparent since the entry into force of the Vienna Convention and is also recognized by the International Law Commission in its 2019 Draft Conclusions on peremptory norms, customary international law constitutes the most common basis for jus cogens.131 Accordingly, modification of a peremptory norm can also occur through the development of customary international law.132 Again, two possible ways to modify jus cogens seem thinkable. First, an existing norm of customary international law with peremptory status could be modified through a change in State practice and opinio juris regarding this norm. Second, a distinct norm of customary international law could come into existence as a subsequent norm of the same status, displacing the hitherto existing peremptory norm in as far as the former is incompatible with the latter. However, while such a distinction might make sense from a conceptual perspective, it would not be employable to international practice and reality. Changing State practice and opinio juris will hardly ever be so clear as to distinguish between changing an existing norm and bringing a distinct new norm into force. By way of example: If one were to accept the possibility that a right to unilateral humanitarian intervention could be created through a change in 1 28 Dinstein (above note 72), at 115. 129 In the case of the prohibition of the use of force, this highly unlikely and rather hypothetical scenario would also raise the question of its compatibility with Article 103 UN Charter. On the relationship between Article 103 UN Charter and jus cogens see Report of the Study Group on Fragmentation (above note 11), at paras. 346–​350; Paulus (above note 106), at 317–​319; Helmersen (above note 72), at 190–​191. 130 See Hannikainen (above note 94), at 266; Rozakis (above note 32) at 91; Gennady M. Danilenko Law-​ Making in the International Community (Brill, 1993), at 251; Dinstein (above note 72), at 102; Henderson (above note 98), at 25; Karl Zemanek “The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order” in Enzo Cannizzaro (ed.) The Law of Treaties beyond the Vienna Convention (Oxford, 2011) 381, at 396; Theodor Meron Human Rights Law-​Making in the United Nations (Oxford, 1986), at 184, footnote 150 (accepting this possibility even before the entry into force of the treaty). See, however, doubts expressed by Sinclair (above note 92), at 225–​226; Mary Ellen O’Connell “Jus Cogens: International Law’s Higher Ethical Norms” in Donald Earl Childress iii (ed.) The Role of Ethics in International Law (Cambridge, 2012) 78, at 93; Orakhelashvili (above note 18), at 129; Verhoeven (above note 37), at 159. 131 See Draft Conclusion 5(1) of the Draft Conclusions on Peremptory Norms (above note 15); Second Tladi Report on Jus Cogens (above note 14), at para. 43. 132 Crawford (above note 92), at 594.

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State practice and opinio juris, it would hardly be possible to determine in any meaningful manner whether States recognize such a right in the form of a limitation of the scope of the prohibition of the use of force, by way of expanding an existing exception, or in the form of a new and distinct norm of customary international law overriding the existing legal framework. The decisive question would in any case be whether such a right to intervention would be recognized in State practice and opinio juris in a sufficiently clear manner.133 Unlike amendments to treaties customary international law does not develop or emerge in a formalized process but rather incrementally. Against this background, the possibility of modifying jus cogens through the development of customary international law has at times been cast into doubt.134 Since peremptory norms develop in a two-​step process –​first, as a general norm of international law, which is then, second, elevated into the status of a peremptory norm –​, the development of customary international law that aims at modifying a peremptory norm seems problematic: It has been pointed out that all acts which are in conflict with jus cogens are “void”135 and that jus cogens “invalidates” conflicting State practice.136 Accepting the possibility of customary international law modifying peremptory norms would therefore appear to violate the general principle of ex injuria jus non oritur. These concerns seem unwarranted. First, the idea that peremptory norms are subject to modification was virtually undisputed from the discussions within the ilc to the Vienna Conference and has also found its way into Article 53 vclt. Although the ilc regarded multilateral treaties as the most likely way in which jus cogens could be modified, it did not exclude the possibility of modification through customary international law. Second, the problem pointed out by some commentators does not arise in all instances of supposed modification of peremptory norms, but only in cases where the modification is, initially, in conflict with a peremptory norm. Such a conflict, however, arises only when the modification is aimed at limiting the scope of an existing peremptory norm, not when it would lead to an expansion.137 Third, the skepticism is, at least in part, based on the premise that the emergence of 1 33 See section 4.2. 134 See Li Haopei “Jus Cogens and International Law” in Sienho Yee and Wang Tieya (eds.) International Law in the Post-​Cold War World, Essays in Memory of Li Haopei (Routledge, 2001) 499, at 516–​517; see also Rozakis (above note 32), at 89–​90; Vladimir Paul “The Legal Consequences of Conflict between a Treaty and an Imperative Norm of General International Law” (1971) 21 Österreichische Zeitschrift für öffentliches Recht 19, at 43. 135 Orakhelashvili (above note 18), at 129. 136 Dinstein (above note 72), at 114; Ruys (above note 76), at 28; Starski (above note 62), at 44. 137 Schmalenbach (above note 81), at para. 40.

118 Payandeh a peremptory norm is a two-​step process and that the lex superior character of jus cogens invalidates the newly emerging norm before it can acquire the status of a peremptory norm. This distinction between two steps of norm-​creation, however, primarily serves analytical purposes. In the reality of international law jus cogens norms do not necessarily emerge in such a time-​delayed manner but rather within a unitary process.138 Most importantly, the critics seem to overstate the destructive potential of jus cogens: While jus cogens invalidates conflicting norms, it does not invalidate conflicting State practice or opinio juris as such. Material acts that contradict peremptory norms might be unlawful, but they are not void, neither are mere statements of States expressing a legal opinion.139 While jus cogens hinders the emergence of a conflicting norm of customary international law with the status of jus dispositivum it does not oppose the development of a norm of customary international law of a jus cogens character.140 Whether a newly developed norm of customary international law reaches the necessary threshold to become a peremptory norm is a question of the requirements for jus cogens to emerge and to be modified. The possibility of modifying jus cogens through customary international law is thereby not excluded. 4.1.2 Modification through Collision of Peremptory Norms? Until this point, the topic of modification has been discussed with a view to norms that directly aim at changing the content of a peremptory norm, either through limiting its scope or, indirectly, through enlarging its exceptions. A different way in which a rule of jus cogens could be modified may be seen in the development of a distinct peremptory norm which, while not explicitly aiming to modify an existing peremptory norm, could have repercussions for the scope or understanding of the existing norm. In the context of the prohibition of the use of force, for example, the acceptance and recognition of the right to self-​determination and core human rights guarantees as jus cogens have led to the question of whether this –​apparent –​conflict between two jus cogens norms might be dissolved with the result that the use of force to 138 Merlin M. Magallona “The Concept of Jus Cogens in the Vienna Convention on the Law of the Treaties” (1976) 51 Philippine Law Journal 521, at 541; see also para. 6 of the Commentary to Draft Conclusion 14 of the Draft Conclusions Peremptory Norms (above note 15). 139 Kolb (above note 25), at 101–​102; Knuchel (above note 18), at 135. 140 This differentiation is supported by Draft Conclusion 14(1) of the Draft Conclusions (above note 15): “A rule of customary international law does not come into existence if it conflicts with a peremptory norm of general international law (jus cogens). This is without prejudice to the possible modification of a peremptory norm of general international law (jus cogens) by a subsequent norm of general international law having the same character”.

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enforce self-​determination or to protect human rights may be regarded as legal.141 Against such an understanding, however, it has to be emphasized again that the mere elevation of a norm to the status of jus cogens does not affect its content. If there has not been a right to use force in order to advance the principle of self-​determination or to protect human rights such a right does not emerge with the recognition of the peremptory character of the right to self-​determination or of human rights guarantees. Moreover, trying to limit the scope of a jus cogens norm in order to avoid a conflict with another jus cogens norm implies and requires that there is such a conflict between norms. However, in the Jurisdictional Immunities case, the International Court of Justice convincingly cautioned against too easily assuming a conflict with a jus cogens norm and rejected the proposition that any rule that would hinder the effective enforcement of a jus cogens norm may not be applied, even in the absence of a direct conflict.142 In the absence of a hierarchy between jus cogens norms,143 it is, furthermore, far from clear why one peremptory norm would have to stand back in order to effectuate a different peremptory norm.144 Against this background, a peremptory norm cannot be modified simply through the construction of a conflict with a different peremptory norm. A right of unilateral humanitarian intervention cannot originate from the emergence of core human rights as jus cogens but rather requires that the international community of States as a whole accepts and recognizes a norm that allows or demands the use of force in order to protect human rights.145 Peremptory norms cannot be modified through the constructive assumption of a norm conflict with a different peremptory norm. 4.1.3

Modification of a Peremptory Norm through a Change in Interpretation? The concept of modification is not limited to formal modifications of peremptory norms but encompasses also substantive change in the understanding of peremptory norms effectuated through interpretative developments. While the need for such a broad understanding of the concept of modification has already been pointed out,146 it still has to be determined when an interpretation of a 141 See, e.g., Joao Christófolo Solving Antinomies between Peremptory Norms in Public International Law (Schulthess, 2016), at 239 et seq. 142 Jurisdictional Immunities of the State case (above note 66), at paras. 90-​95. 143 Report of the Study Group on Fragmentation (above note 11), at para. 367. 144 Kolb (above note 25), at 123; O’Connell (above note 85), at 244, 246. 145 See Gray (above note 77), at 53; de Hoogh (above note 81), at 1184–​1185; Kolb (above note 25), at 121–​124. 146 See section 2.2.

120 Payandeh jus cogens norm has to be regarded as a modification of a peremptory norm. On a theoretical, conceptual level, this question is quite easy to answer. If we assume that a particular norm of general international law with a particular content has been accepted and recognized as a peremptory norm at a particular point in time, any subsequent change in the understanding of that norm could be regarded as a modification, thereby triggering the requirements for modification of a peremptory norm. This is not, of course, how international law works. First, it is at times difficult to exactly pinpoint the moment when a norm of international law emerges. While this moment might be discernable for treaty norms with their formalized process of entry into force, this is hardly the case for customary international law, the main basis for peremptory norms of general international law. Second, it is even more difficult to pinpoint the precise moment when the international community of States as a whole has recognized and accepted such a norm as peremptory.147 This moment can but does not have to coincide with the emergence of a norm. Both the emergence of a norm of general international law as well as the ascension of that norm to the status of jus cogens are usually incremental, fluctuating processes with the exact moment in time at which a non-​norm turns into a norm, and a norm of jus dispositivum turns into a norm of jus cogens hardly ever susceptible to a precise determination. Roberto Ago has pointed out this evolving process with regard to the prohibition of the use of force quite tangibly: [T]‌he most striking aspect of the evolution of international law during the period from the late 1920s to the late 1960s was the gradual formation, in the opinio juris of the members of the international community, of a conviction of the peremptory character, allowing of no derogation, of the principle prohibiting aggression.148 While it is therefore hardly possible to fixate the exact moment in which a peremptory norm comes into existence, it is even more difficult to determine what exactly the content of the norm is at that moment and which interpretations would therefore constitute subsequent developments which could be regarded as modifications. We are therefore faced with a seemingly unsolvable dilemma: While the very concept of jus cogens demands that heightened requirements for modification apply to changes in the interpretation of peremptory norms,149 there is 1 47 Paulus (above note 106), at 304. 148 Addendum –​Eighth Ago Report (above note 118), at para. 58. 149 See section 2.2.

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no definitive way by which to identify whether such a change has taken place. Upon closer inspection, however, this seemingly unsolvable dilemma turns out to be nothing more than a variation of the general theme of the indeterminacy of international legal rules and of uncertainty in international law:150 Validity and content of international legal norms are often subject to debate. At times such debates are, more or less authoritatively,151 decided by international courts. Some norms are more strongly contested than others. And the consensus with regard to the content of international legal norms may be thicker or thinner. The relationship between modification and interpretation is not dichotomous but rather fluid. This must have consequences for the requirements for modification of a peremptory norm through interpretative development. 4.2 Requirements for Modification This last point raises the question of what the requirements for the modification of a peremptory norm actually are and in how far they deviate from the general mechanisms of legal development and interpretative change concerning international legal rules which are not peremptory in character (jus dispositivum). Preliminary conclusions can be drawn from the pronouncement of Article 53 vclt that a peremptory norm of general international law can only be modified by a subsequent norm of general international law having the same character: This means, first, that a jus cogens norm of universal applicability can only be modified by a subsequent norm of universal applicability.152 Regardless of the possibility of regional or even bilateral jus cogens,153 150 See Kadelbach (above note 30), at 169–​170. On the indeterminacy of international legal rules in general, see Martti Koskenniemi From Apology to Utopia, The Structure of International Legal Argument (Cambridge, 2005), at 36–​41, 590–​596 et passim. For an overview of the topic in international legal scholarship see Cameron A. Miles “Indeterminacy” in Jean d’Aspremont and Sahib Singh (eds.) Concepts for International Law (Elgar, 2019), at 447. 151 On the role of courts in stabilizing normative expectations and law-​making see Armin von Bogdandy and Ingo Venzke In Whose Name? A Public Law Theory of International Adjudication (Oxford, 2014), at 10–​14. 152 On the reading of “general international law” as meaning universality, see paras. 12-​ 15 of the Commentary to Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 15); Nicholas G. Onuf and Richard K. Birney “Peremptory Norms of International Law: Their Source, Function and Future” (1974) 4 Denver Journal of International Law and Policy 187, at 190–​191. 153 On regional jus cogens see, e.g., Giorgio Gaja ”Jus Cogens beyond the Vienna Convention” (1981) 172-​i ii Recueil des cours de l’Académie de Droit International de la Haye 271, at 284; Stefan Kadelbach (above note 96), at 203–​204; Kolb (above note 25), at 97–​100. The question of regional jus cogens is excluded from the ilc’s Draft Conclusions, see para. 7 of the

122 Payandeh modification of a jus cogens norm in the sense of Article 53 vclt requires a universally applicable norm.154 Second, the norm trying to modify an existing jus cogens norm must have the same character, meaning that it itself must gain the status of a peremptory norm. Against this background, it is regularly highlighted that the same mechanism that is required for a jus cogens norm to emerge also applies to its modification.155 Unlike the criteria for the emergence of a peremptory norm, however, the details of the modification process are seldom analyzed in more depths. It is habitually cautioned that changes cannot be lightly assumed156 and require “constant care and alertness”,157 and it is pointed out that there is high and strict threshold158 and exacting requirements159 for the modification of jus cogens norms. But what exactly that means is hardly ever explicated. 4.2.1 The International Community of States as a Whole The first consequence of the requirement that a modifying norm shares the same character as the existing peremptory norm is that peremptory norms can only be modified by the international community of States as a whole.160 This formulation highlights, on the one hand, that the position of States and not of other actors is decisive for the identification of a peremptory norm.161 It emphasizes, on the other hand, that acceptance by all States is not required but that, nonetheless, a very large majority of States must have accepted and recognized the peremptory character of a norm.162 It follows also that the modification of

1 54 155 1 56 157 1 58 159 160 161

162

Commentary to the Draft Conclusion 1 of the ilc Draft Conclusions (above note 15); see also Fourth Tladi Report (above note 14), at paras. 21 et seq. Kolb (above note 25), at 101. See, e.g., Dinstein (above note 72), at 113–​114.; Magallona (above note 138), at 540; de Hoogh (above note 81), at 1171. See van Hoof (above note 36), at 166–​167. Nico Schrijver “The Ban on the Use of Force in the UN Charter” in Weller (above note 65), at 486. Kolb (above note 25), at 102; Rozakis (above note 32), at 85. Vaughan Lowe and Antonios Tzanakopoulos “Humanitarian Intervention” in Rüdiger Wolfrum (ed.) Max Planck Encyclopedia of Public International Law (Oxford, 2011), at para. 27; Helmersen (above note 72), at 173. See Hannikainen (above note 94), at 251; Ruys (above note 76), at 102; Schmalenbach (above note 81), at para. 40. Para. 2 of the Commentary to Draft Conclusion 7 of the Draft Conclusions on Peremptory Norms (above note 15); Villiger (above note 10), at 673; Ragazzi (above note 92), at 54–​ 55. However, see on the role of other actors, Draft Conclusion 7(3) and para. 4 of the Commentary. Draft Conclusion 7(2) and para. 6 of the Commentary to the Draft Conclusions (above note 15); Schmalenbach (above note 81), at para. 29; Sinclair (above note 92), at 219.

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a peremptory norm must find the support of the overwhelming majority of States “across regions, legal systems and cultures”.163 Modification through a multilateral treaty would therefore require almost universal participation of States. Modification by means of customary international law would also have to be supported almost unanimously. In this context, resolutions of international organizations and in particular of the United Nations General Assembly gain importance as indications of the position of the international community of States as a whole.164 4.2.2 Acceptance and Recognition of Modification It is, however, not only the number of approvals that distinguishes jus cogens from international legal norms in general but, more importantly, the point of reference for the acceptance. A peremptory norm requires “double consent”: first, “consent” in respect of the status of the norm as a rule of international law, and, second, “consent” with regard to the peremptory status of the norm.165 The implications of this two-​step process for the modification of jus cogens are, however, far from clear. Among the few commentators explicitly addressing this question, Robert Kolb has argued that a triple opinio juris is required for the modification of jus cogens: States must accept that the modifying norm is legal, that it is peremptory, and that it shall replace the existing peremptory norm.166 Kolb rightly points out that the acceptance that a norm shall replace an existing peremptory norm can also imply that it is accepted as a legal norm. This proposition seems, however, not only possible but rather inevitable. If the international community of States as a whole takes the decision to modify an existing norm of a peremptory character, this necessarily implies that it has accepted the modifying norm as a legal norm. It is, moreover, doubtful, whether a modification of a peremptory norm requires acceptance and recognition of the peremptory nature of the new rule in the form of opinio juris cogentis. Again, a differentiation seems necessary. In case this modification comes along in the form of an exception or an expansion of an 163 See para. 6 of the Commentary to Draft Conclusion 7 of the Draft Conclusions on Peremptory Norms (above note 15). 164 See Draft Conclusion 8(2) of the Draft Conclusions on Peremptory Norms (above note 15); Hannikainen (above note 94), at 266; Ruys (above note 76), at 28; Dinstein (above note 72), at 114; Onuf and Birney (above note 152), at 188; Henderson (above note 98), at 26. Skepticism has been expressed by Danilenko (above note 130), at 251. 165 See for the distinction between two levels of “consent” Draft Conclusion 4 of the Draft Conclusions (above note 15). See also Second Tladi Report on Jus Cogens (above note 14), at paras. 37 et seq.; de Wet (above note 30), at 542; Schmalenbach (above note 81), at para. 37. 166 Kolb (above note 25); see also Starski (above note 62), at 43.

124 Payandeh exception to a peremptory norm, it has already been pointed out that exceptions cannot be regarded as peremptory themselves.167 But also with regard to modifications that concern the content of the peremptory norm as such, the idea of a separate acceptance and recognition of the peremptory character of the modification seems rather artificial. When there is a sufficiently clear indication that the international community of States as a whole has agreed to modify a norm of international law which is regarded as peremptory, this intention implies that the modified norm itself has the status of jus cogens. It seems like a rather hypothetical proposition that the international community would want to abolish a peremptory norm and replace it with a norm that does not have peremptory character.168 A change in opinio juris as to the content of a peremptory norm will suffice in order to modify such a norm.169 What is decisive is that States clearly express an opinio juris that indicates such a modification. As long as these States can be regarded as representing the international community as a whole, no additional opinio juris cogentis is required. With regard to the modification of peremptory norms, the accept and recognize requirement of Article 53 of the vclt thereby serves a different function than it does in the context of the emergence and identification of jus cogens norms where it is the decisive element distinguishing peremptory norms from general norms of international law.170 It does not introduce an additional element with regard to what States have to recognize, an opinio juris cogentis that can be distinguished from the general opinio juris sive necessitatis. It rather qualifies the requirements for the modification of a peremptory norm by stipulating that the acceptance and recognition of the international community of States as a whole is required for a peremptory norm to change. This proposition raises the question as to how it can be established that the international community of States as a whole has accepted and recognized a modification of a peremptory norm. Modification in the form of a multilateral treaty requires that the overwhelming majority of States, representing the international community as a whole, consents to enact a norm that changes an existing norm of peremptory character. A hypothetical revision of the UN Charter to the end of limiting the scope of the peremptory prohibition of the use of force under Article 2(4) UN Charter, expanding the existing exception under Article 51 UN Charter or introducing a new exception would constitute such a consent if it was ratified by a large enough majority of States. 1 67 168 169 170

See section 3.1. Kolb (above note 25), at 103. Id., at 103. See the emphasis in Second Tladi Report on Jus Cogens (above note 14), at para. 76.

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With regard to a modification by means of customary international law, it is more difficult to identify such a consent. First, it has to be highlighted that the higher threshold for modifying a peremptory norm of customary international law does not affect the requirements for State practice:171 The modification of a customary jus cogens norm in the first step only requires a modification of the underlying customary norm according to the general mechanism for the development of customary international law. Only with regard to the elevation of such a norm into the status of a peremptory norm does Article 53 of the vclt require the acceptance and recognition of the international community of States as a whole. The more stringent requirements for the emergence and hence also the modification of jus cogens thereby only address the subjective element of norm-​development.172 This stronger focus on the subjective element as opposed to State practice, however, leads to a more restrictive understanding of the possibility of modifying peremptory norms. As has been argued with regard to customary international law in the context of diverging approaches to the use of force, a focus on State practice facilitates norm-​transformation by a limited number of States powerful enough to actually resort to such practice.173 A focus on the subjective requirement for legal development, the opinio juris, on the other hand, makes such development dependent on the expression of States that they regard a certain practice as legal.174 In the context of peremptory norms, the subjective requirement that the international community of States as a whole accepts and recognizes the modification of a peremptory norm through a subsequent peremptory norm thereby raises the bar for acknowledging that a modification of jus cogens has taken place.

1 71 See Kleinlein (above note 56), at 12–​13. 172 As highlighted by Kleinlein (above note 30), at 196. See also Bruno Simma and Philip Alston “The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles” (1988–​1989) 12 Australian Yearbook of International Law 82, at 104. 173 See Olivier Corten “The Controversies Over the Customary Prohibition on the Use of Force: A Methodological Debate” (2005) 16 European Journal of International Law 803, at 810–​811, linking the methodological focus on State practice to extensive approaches to the admissibility of the use of force. For a different conceptualization highlighting that State practice may include both material conduct as well as declarations van Steenberghe (above note 40), at 83–​87. 174 See Corten (above note 173), at 816–​821 with regard to restrictive approaches to the admissibility of the use of force.

126 Payandeh 4.2.3 Evidence of Acceptance and Recognition The International Law Commission has pointed out that evidence for the acceptance and recognition of a peremptory norm by the international community of States as a whole may take a wide range of forms. At the same time, the Commission highlighted examples of such evidence in the form of public statements, publications and correspondence made on behalf of States, but also treaty provisions as well as resolutions adopted by international organizations or at intergovernmental conferences.175 For a peremptory norm to be modified, such statements of States, making up the international community as a whole, have to express the conviction that the norm in question actually has changed. It is clear from Article 53 of the vclt that a large majority of States has to embrace such a modification. The question remains whether the acceptance and recognition of change has to be explicit or whether the lack of protest on the side of the majority of States will suffice for the modification of a peremptory norm. With the principle of consent as the guiding principle of international law-​making,176 silence on the side of States should, in general, not easily be assumed to imply acceptance.177 Accordingly, legal consequences can only be drawn cautiously from the silence of States.178 In the context of the emergence as well as the modification of peremptory norms, there is even more reason for such caution:179 First, the very nature of jus cogens, its understanding as an embodiment of fundamental values and its claim to universality180 imply that peremptory norms are not only tolerated but rather embraced by the overwhelming majority of States. The acceptance and recognition of a peremptory norm must reflect a “belief”181 by the international community of States as a whole as to the existence of a jus cogens norm. Accordingly, the acceptance of 1 75 See Draft Conclusion 8 of the Draft Conclusions on Peremptory Norms (above note 15). 176 Crawford (above note 92), at 20. 177 See the differentiated approach by the International Law Commission with regard to silence of States as evidence of customary international law in Draft Conclusion 10(3) of the Draft Conclusions on Identification of Customary International Law, Report of the International Law Commission, Seventieth Session, General Assembly Official Records (A/​ 73/​10) (2018). 178 See Corten (above note 173), at 817–​818; Starski (above note 62), at 43–​44. 179 But see, for the view that a modification of jus cogens can take place through the absence of negative reactions of States, Zemanek (above note 130), at 396; A. Mark Weisburd “Consistency, Universality, and the Customary Law of Interstate Force” in Enzo Cannizzaro and Paolo Palchetti (eds.) Customary International Law on The Use of Force (Brill, 2005), at 75. 180 See Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 15). 181 Second Tladi Report on Jus Cogens (above note 14), at para. 88.

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change of a peremptory norm cannot be assumed lightly.182 Second, the resilience to change constitutes an inherent characteristic of peremptory norms. States, in general, do not need to expect changes to legal norms that are meant to embody fundamental values. Hence, failure to react to the practice or pronouncements of States that could be interpreted as advocating a modification of a peremptory norm cannot, in general, be regarded as acceptance of such change. Recognized norms of jus cogens, such as the prohibition of the use of force, the prohibition of genocide and torture, apartheid and systematic racial discrimination, constitute groundbreaking achievements in the development of the international legal system. Acceptance of their modification cannot be presumed easily. Third, this reservation against silence as evidence for a peremptory norm is reflected in the recent work of the International Law Commission on the topic of jus cogens. The possibility of silence of States as a contributing factor for the emergence, identification or modification of peremptory norms is not considered in the reports of the special rapporteur. While the Draft Conclusions on jus cogens closely mirror the Draft Conclusions on the Identification of Customary International Law with regard to the question of the forms of evidence for acceptance and recognition of a peremptory norm,183 they omit the latter’s proposition that silence of States can, under specific circumstances, be regarded as evidence of opinio juris.184 While customary international law can emerge and develop even on the basis of only a few actively participating States, when their State practice and opinio juris does not meet considerable protest and is tacitly accepted, such a law-​making approach does not seem suitable for the emergence or modification of peremptory norms.185 The jus cogens character of the prohibition of the use of force therefore cautions against easily assuming that silence of states in light of discussions about possible limitations of the prohibition or e­ xpansions of exceptions can be interpreted as acceptance of such a modification.

1 82 See van Hoof (above note 36), at 166–​167. 183 Compare Draft Conclusion 8 of the Draft Conclusions on Peremptory Norms (above note 15) with Draft Conclusion 10 of the Customary International Law Draft Conclusions (above note 177). See especially para. 4 of the Commentary to Draft Conclusion 8 of the Jus Cogens Draft Conclusions. 184 See Draft Conclusion 10(3) Customary International Law Draft Conclusions (above note 177). 185 See also Alexander Orakhelashvili “Changing Jus Cogens Through State Practice? The Case of the Prohibition of the Use of Force and its Exceptions” in Weller (above note 65), at 171.

128 Payandeh 4.2.4 Interpretative Change Peremptory norms cannot only be changed through formal modification. It is also, and probably most frequent, through interpretation that modification takes place. It has already been argued that interpretative change of peremptory norms must, in general, also meet the requirements for modification of peremptory norms,186 and that it is oftentimes not possible to clearly determine whether an interpretation of a peremptory norm constitutes a deviation from a recognized understanding or not.187 While the resilience to change inherent in the concept of jus cogens advocates for a conservative approach to interpretation,188 the implications of such a proposition are not always clear. In the absence of a clear delimitation between an established understanding of a peremptory norm and an interpretation that constitutes a change, a fluid approach to the requirements of modification seems both necessary and appropriate. The more an interpretation deviates from a (more or less) established understanding of the content of a peremptory norm, the higher are the requirements for the acceptance of such a modified understanding.189 The more an interpretation rather touches upon the margin of a peremptory norm or concerns a generally controversial aspect of its understanding, the less rigid the requirements for such a modification should be handled. These benchmarks are neither clear nor easy to apply, but they allow, nevertheless, for a more differentiated and nuanced modulation of the requirements for a peremptory norm to change through interpretation. They avoid the fallacy of the two possible extreme alternatives: either requiring almost universal acceptance of a change in the interpretation of a peremptory norm without being able to offer clear criteria for determining whether an interpretation actually constitutes such a change; or not applying the heightened requirements for the modification of jus cogens to interpretative developments at all, thereby neglecting the resilience to change inherent in the concept of peremptory norms. The criteria developed here are therefore not meant to clearly determine whether a specific interpretation of a peremptory norm is convincing or not. They rather determine the argumentative burden for those advancing a particular understanding. When interpreting a peremptory norm of international law, not only do the general rules of interpretation and of argumentation in 1 86 187 188 189

See section 2.2. See section 4.1.3. O’Connell (above note 85), at 244, 248–​251. Ruys (above note 76), at 29; see also van Steenberghe (above note 40), at 93 who, however, goes too far when applying this standard to recent debates on the right to self-​defense.

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international law apply but it has also to be asked whether a particular understanding of the content of a peremptory norm constitutes a well-​established meaning of that norm or rather a further development in the understanding of that norm.190 With regard to the prohibition of the use of force, for example, this means that proponents of the right to unilateral humanitarian intervention, a right to preventive self-​defense or the admissibility of self-​defense measures against non-​State actors will not only have to show that their reading of the jus ad bellum is convincing and finds support in State practice and opinio juris, but will also have to address the question of whether and to what extent their position deviates from a well-​established understanding of the rules on the use of force. If it can be shown that a specific aspect of the prohibition of the use of force has long been subject to debate or not been consolidated within international practice, it cannot be said that the international community of States as a whole has firmly accepted and recognized this particular aspect of the peremptory prohibition of the use of force. Evolutive change might then be assumed under less strict conditions than full-​on modifications of a peremptory norm. The threshold for acceptance by States might be lower, and silence of States might more easily be regarded as acquiescence. However, even in this case, it must be shown that a specific reading of the rules on the use of force is convincing with regard to the wording, context, object and purpose of the UN Charter and supported by international practice in a significant manner. With regard to the most controversial aspects of the prohibition of the use of force, however, the applicable threshold for acceptance by the international community of States as a whole seems to be rather high. Neither humanitarian intervention191 nor preemptive self-​defense192 or self-​defense against non-​State actors in the absence of attribution to a State193 can be regarded as well-​established, universally accepted grounds for justification of the use of force: The framers of the UN Charter deliberately avowed themselves to a restrictive approach to the use of force.194 The International Court of Justice has 1 90 See, similarly, van Steenberghe (above note 40), at 96. 191 See, e.g., Randelzhofer and Dörr (above note 80), at para. 52 et seq. (highlighting the understanding of the framers of the Charter); Corten (above note 68), at 495 et seq. 192 See, e.g., Gray (above note 77), at 170 et seq. and 248 et seq., highlighting that before the attacks of 9/​11, anticipatory self-​defense was rarely invoked and in general rejected. 193 See, e.g., Tladi (above note 86), at 65, highlighting that under its traditional understanding the right to self-​defense applies only against attacks from another State. 194 See, e.g., the often-​cited reference to the statement of the U.S. delegation at the San Francisco Conference that “the intention of the authors of the original text was to state in the broadest terms an absolute all-​inclusive prohibition” and that the provision was

130 Payandeh constantly upheld a restrictive understanding.195 And while not all instances of the use of force with a debatable legal basis have been subject to rigorous protest by States, universal acceptance of expansive readings of the grounds justifying the use of force has also been the exception.196 With, for example, the Movement of Non-​Aligned Countries, representing 120 States, highlighting that “Article 51 of the Charter is restrictive and should not be rewritten or reinterpreted”,197 it seems rather difficult to maintain the view that any expansive understanding of the exceptions to the prohibition of the use of force has been accepted and recognized by the international community of States as a whole. 5

Conclusion: Modification of Peremptory Norms within the International Legal Order

Ian Sinclair has pointed out that while the concept of jus cogens itself remains a mystery, the process of modification of jus cogens is even more enigmatic.198 Nevertheless, the work of the International Law Commission, the discussions at the Vienna Conference as well as the text of the Vienna Convention leave no doubt that such a modification is possible. The concept, object and process of modification exhibit some modest but nevertheless significant deviations from the general international law-​making process. The higher status of peremptory norms implies a certain resilience to change. Uncertainty as to the content of peremptory norms complicates matters, but it is a complication that international law and international lawyers are used to and that cannot be averted. Doctrinal concepts and methodological considerations do not deliver clear results when it comes to controversy about whether and with what content a norm is of peremptory nature. But they structure the debate and shift the

195

1 96 197

198

“designed to ensure that there should be no loopholes”, 6 Documents of the United Nations Conference on International Organization (1945), at 335; Randelzhofer and Dörr (above note 80), at para. 39 et seq.; (above note 157), at 471. See Claus Kreß “The International Court of Justice and the ‘Principle of Non-​Use of Force’ ” in Weller (above note 65), at 597 et seq., highlighting that the Court upheld an extensive understanding of the prohibition of the use of force and a restrictive reading of the right to self-​defense, while at the same time criticizing the Court for ambiguities and advocating a “somewhat less prohibitive approach”. See, e.g., Henderson (above note 98), at 408 et seq.; Corten (above note 68), at 550 et seq. UN Security Council, 7621st meeting, Maintenance of international peace and security (S/​p v.7621) (2016), at 33–​34; see also xvii Ministerial Conference of the Non-​Aligned Movement, Algiers, Algeria, 26–​29 May 2014, Final Document (A/​68/​966 -​S/​2014/​573), Annex i, at para. 25.2. Sinclair (above note 92), at 226.

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argumentative burden. In this regard the modification of peremptory norms is not so different from other questions regarding the making, identification and development of rules of international law.

Acknowledgements

For valuable comments I thank Helmut Aust, Shpetim Bajrami, Thomas Kleinlein, Lukas Reichl and Dire Tladi.

Chapter 6

Peremptory Norms and Interpretation in International Law Sâ Benjamin Traoré 1

Introduction

It is human nature to classify and to consider that some things are more important than others. This is reflected in any normative system, and law is no exception.1 True, the concept of normativity in law implies the binding nature of all legal norms.2 Nevertheless, not all norms are equal nor do they all bear the same normative weight. Some are more important than others, hence, the well-​established distinction between jus dispositivum and jus cogens in some domestic legal systems.3 In international law, the most prominent norms are peremptory norms, also known as norms of jus cogens.4 These norms are a 1

2 3

4

Moral philosophy has always been obsessed by the issue of “values” and “core values” in human experience. See Elinor Mason “Value Pluralism” in Edward N. Zalta (ed.) Stanford Encyclopaedia of Philosophy (Stanford, 2018); Michael J. Zimmerman The Nature of Intrinsic Value (Rowman &Littlefield, 2001). For legal thinking see Martti Koskenniemi, “Hierarchy in international law: A Sketch” (1997) 8 European Journal of International Law 566. Mary Ellen O’Connell “Jus Cogens: International Law’s Higher Ethical Norms” in Donald Earl Childress (ed.) The Role of Ethic in International Law (Cambridge, 2011), at 78–​98. Hans Kelsen General Theory of Norms (Clarendon Press, 1991), at 3. Where he contends that “[t]‌he validity of a norm –​i. e. its specific existence –​consists in that the norm is to be observed, and if not observed, then applied”. The first category encompasses norms which can be derogated from by special agreements between legal subjects whereas the second concern norms that are of such importance for the legal system that they pertain to public order (ordre public) and, therefore, cannot be contracted out through particular agreements. Public order is a fundamental limit to the sacrosanct principle of contractual freedom in domestic law. See Milenko Kreća, “Some General Reflections on Main Features of Jus Cogens as Notion of Public International Law” in Rafael Gutiérrez Girardot, Helmut Ridder, Manohar Lal Sarin and Theo Schiller (eds.) New Directions in International Law: Essays in Honour of Wolfgang Abendroth –​Festschrift zu seinem 75 Geburtstag (Campus Verlag, 1982), at 27 et seq; Antonio Gomez Robledo, “Le Jus Cogens International: sa Genèse, sa Nature, ses Fonctions” (1981) 172 Collected Courses of the Hague Academy of International Law 17. It has been argued that the term “peremptory norms” best captures the essence of international jus cogens and that it avoids confusion with domestic jus cogens. In his second report, the International Law Commission (ilc) Special Rapporteur on the topic, therefore, proposed to change the name of the topic from “Jus cogens” to “Peremptory Norms

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_007

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reflection of the strongest shared interests of the international society.5 Despite scholarly disagreements about the criteria for their identification, jus cogens norms exist as a manifestation of positive law,6 although having been critiqued as “absurd”.7 Indeed, according to Article 53 of the Vienna Convention on the Law of Treaties (vclt), “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”.8 Although the vclt does not really define “peremptory norms”,9 it emerges from Article 53 that non-​derogability is the “gist of peremptoriness”.10 This is, perhaps, why authors such as Kolb consider jus cogens as nothing but a legal technique defined by non-​derogability.11 Much has been written about the notion of jus cogens. Scholars approach the topic from different theoretical and ideological perspectives.12 However of International Law (jus cogens)”. This also accords with the formulation adopted by the 1969 Vienna Convention on the Law of Treaties. However, this distinction does not seem to be essential. For the purposes of this chapter, the two terms will be used as synonyms. See Second Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​cn.4/​706) (2017), at 90. 5 The icj has recently reaffirmed that States have strong “shared values” on specific issues such as Genocide. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), icj Reports 2020, p.13, at para.4. 6 Giovanni Distefano, Fundamentals of Public International Law: A Sketch of the International Legal Order, (Brill/​Nijhoff, 2019), at 251; Pierre-​Marie Dupuy “L’Unité de l’Ordre Juridique International” (2002) 297 Collected Courses of the Hague Academy of International Law, 269. See First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693) (2016), at para. 36. 7 See Micheal G. Glennon “De l’Absurdité du Droit Impératif (Jus cogens)’ ” (2006) 3 Révue Générale de Droit International public 529. For an account of views that contest the concept of jus cogens, see Robert Kolb Peremptory International Law –​Jus Cogens: A General Inventory (Hart, 2015) 15–​29. 8 Article 53 of the 1969 Vienna Convention on the Law of Treaties (vclt). 9 Eduardo J. De Aréchaga “International Law in the Past Third of a Century” (1978) 159 Collected Courses of the Hague Academy of International Law 64; Distefano (above note 6), at 253. 10 James Crawford Brownlie’s Principles of Public International law (8th Edition, Oxford, 2012), at 594. 11 See in this volume Robert Kolb “Peremptory Norms as a Legal Technique rather than Substantive Super-​ Norms” (Chapter 2); Robert Kolb Théorie du Ius Cogens International: Essai de Relecture du Concept (Presses Universitaires de France, 2001) and Kolb (above note 7). But for criticisms of Kolb’s conception of jus cogens, see Dupuy (above note 6), at 281; Andrea Bianchi “Human Rights and the Magic of Jus Cogens” (2008) 19 European Journal of International Law 491, at 495. 12 Ulf Linderfalk, “Understanding the Jus Cogens Debate: The Pervasive Influence of Legal Positivism and Legal Idealism” (2016) 46 Netherland Yearbook of International Law 51. For an account of these theoretical debates see, Kolb (above note 7), at 30–​44; Alexander

134 Traoré as pointed out by Crawford, more authority exists for the concept of peremptory norms than for its particular consequences.13 Yet, ever since its emergence in positive law, the concept of jus cogens has extended far beyond the law of treaties.14 Peremptory norms have been described as having been “metamorphosed”15 or having “magical”16 or “a multiple consequential” effects.17 While there has been an increasing scholarly interest in the impact of jus cogens in other specific areas such as State responsibility,18 the exact nature and scope of the expansion of jus cogens within the entire international legal system is yet to be determined. This chapter focuses on the particular impact of peremptory norms on the regime of interpretation in international law. Jus cogens has entailed a “dramatic change” in the structure and functioning of the international legal system.19 As higher law, the category of jus cogens inserts a vertical component in an international legal order that is intrinsically

13

14

15 16 17 18

19

Orakhelashvili, Peremptory Norms in International Law (Oxford, 2008) at 32 et seq. See also First Tladi Report (above note 6), at 30 et seq. For different theoretical perspectives on jus cogens, see Christian Tomuschat and Jean-​Marc Touvenin The Fundamental Rules of the International Legal Order: “Jus Cogens” and Obligations “erga omnes” (Brill, 2006). Crawford (above note 10), at 596. See also, Jan Klabbers, International Law, (2nd Edition, Cambridge, 2017), at 67; Dinah Shelton “Normative Hierarchy in International Law” (2006) 100 American Journal of International Law 291, at 306. See however, Daniel Costelloe Legal Consequences of Peremptory Norms in International law (Cambridge, 2017); Orakhelashvili (above note 12); Kolb (above note 7), at 58 et seq. Distefano (above note 6); Christian Tomuschat “The Security Council and Jus Cogens” in Enzo Cannizzaro (ed.) The Present and Future of Jus cogens (Sapienza, 2015), at 29 et seq.; Giorgio Gaja “Jus Cogens Beyond the Vienna Convention” (1982) 172 Collected Courses of the Hague Academy of International Law, at 9 et seq.; Pierre-​Marie Dupuy and Yann Kerbrat Droit International Public (11th Edition, Dalloz, 2012), at 323; Kolb (above note 7), at 58 et seq.; Orakhelashvili (above note 12), at 205 et seq.; Crawford (above note 10), at 596. See generally, Costelloe (above note 13), at 18 et seq. Karl Zemanek, “The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?” in Enzo Cannizzaro (ed.) The Law of Treaties Beyond the Vienna Convention (Oxford, 2011), at 381. Bianchi (above note 11). Orakhelashvili (above note 12), at 81. Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​714) (2018), at 29. See also, James Crawford, “The Crime of States”, in James Crawford, Alain Pellet and Simon Olleson (eds.) The Law of State Responsibility (Oxford, 2010), at 405–​415; Eric Wyler and León Castellanos-​Jankiewicz “Serious Breaches of Peremptory Norms”, in André Nollkaemper and Ilias Plakokefalos (eds.) Principles of Shared Responsibility in International Law:An Appraisal of the State of the Art (Cambridge, 2014), at 284–​311; Gaja (above note 14), at 271 et seq.; Eric Wyler, “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations Under Peremptory Norms of General International Law” (2002) 13 European Journal of International Law 1147. Bianchi (above note 11), at 494.

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horizontal. This is perhaps one of its most important implications as it represents a radical challenge to the traditional inter-​state relativism, which is based on state sovereignty and the subsequent horizontal structure of international law sources and norms.20 This horizontality has always placed international norms on an equal footing. As such, a norm deriving from a treaty does not prevail over a rule of customary law or a general principle of law, nor does customary law prevail over treaty law or general principles.21 However, the notion of jus cogens introduces an “unconditional hierarchy” among international norms.22 As rightly pointed out by the ilc Special Rapporteur on the topic, peremptory norms “are hierarchically superior to other norms of international law as the idea of rules capable of invalidating others and permitting no derogation implies a normative hierarchy”.23 How does this affect interpretation? Interpretation in (international) law is the operation consisting of giving a precise meaning and scope to a rule or an act.24 Interpretation is a key aspect of the application of law in any legal system. Its function in international law is even more critical. As a decentralized consent-​based system, unlike domestic law, there is no single overarching judicial authority designated to settle interpretative disputes in international law. As a result, “auto-​interpretation” –​ which refers to unilateral interpretative claims by the addressees of a legal rule –​performs a prominent role in international law.25 Moreover, international law is poorly coordinated. It has developed through unwritten rules not

20

Prosper Weil, “Towards Normative Relativity in International Law?” (1983) 77 American Journal of International Law 413, at 418; Dupuy and Kerbrat, (above note 14), at 24. 21 See Erika De Wet and Jure Vidmar “Introduction” in Erika de Wet and Jure Vidmar (eds.) Hierarchy in International Law: The Place of Human Rights (Oxford, 2012), at 1; Jörg Kammerhofer Uncertainty in International Law: A Kelsenian Perspective (Routledge, 2010), at 139; Jean Combacau “Le Droit International, Bric à Brac ou Système?” (1986) 31 Archives de Philosophie du Droit 85, at 88. 22 Orakhelashvili (above note 12), at 67; de Wet and Vidmar (above note 21), at 3. 23 First Tladi Report (above note 6), at 43. 24 See Interpretation of Judgments nos. 7 and 8 (the Chorzów factory), Judgement of the Permanent Court of International Justice, Series A, N°13, 1927, at 10. 25 Georges Abi-​Saab “Interprétation et auto-​interprétation: Quelques réflexions sur leur rôle dans la formation et la résolution du différend international” in Ulrich Beyerlin, Michael Bothe, Rainer Hofsman and Ernst-​Ulrich Petersmann (eds.) Recht zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht, Staatsrecht: Festschrift für Rudolf Bernhardt (Springer, 1995), at 9 et seq.; Charles De Visscher Problèmes d’Interprétation Judiciaire en Droit International Public (Pedone, 1963), at 12; Robert Kolb Interprétation et Création du Droit International: Esquisse d’une Herméneutique Juridique Moderne pour le Droit International Public (Bruylant, 2007), at 137.

136 Traoré to mention its considerable gaps. This heightens the functions of interpretation.26 Constantly seeking to avoid the perverse effects of “auto-​interpretation”, international law has strived to develop a set of rules and principles aiming at constraining its interpreters. These rules have been codified by the vclt. Their scope expands beyond treaties and reaches other international legal instruments such as resolutions adopted by international organisations and unilateral acts as demonstrated later.27 The existence of jus cogens norms entails critical consequences on the interpretation of international acts and rules due to the importance of the systemic dimension of the concept.28 Peremptory norms operate not only as legal rules or principles but also “as a climate of interpretation of the intention of the parties”.29 This aspect of jus cogens was made clear by Judge Dugard in Armed activities (drc v. Rwanda). According to him, fundamental principles are not only about rights and duties, they also concern policies and must condition judicial decision making.30 This overall influence aside, normative hierarchy entails two critical consequences on legal interpretation. Firstly, it implicates the basic obligation to interpret the inferior rule in accordance with the superior one.31 Hierarchy among rules affects legal reasoning which unfolds mainly through interpretation.32 Legal reasoning cannot

26 27 28 29 30

31

32

Jean Combacau and Serge Sur Droit International Public (11th Edition., lgdj, 2014), at 170–​171. As made clear in the next section, however, these rules do not aim to provide one “right interpretive solution”. But see also, Orakhelashvili (above note 12), at 129 et seq.; and 413 et seq.; Costolloe (above note 13), at 128 et seq.; and 152 et sq. Bianchi (above note 11), at 497; Tomuschat (above note 14), at 19 et seq. C. Wilfred Jenks The Prospects of International Adjudication (Oceana, 1964), at 458. Separate Opinion of Judge ad hoc Dugard in Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, icj Report 2006, p. 6, at para. 9–​14. On how jus cogens, as part of a belief system, affects international legal reasoning, see Jean D’Aspremont International Law as a Belief System (Cambridge, 2018), at 92 et seq. Sâ Benjamin Traoré L’Interprétation des Résolutions du Conseil de Sécurité des Nations Unies –​Contribution à la Théorie de l’Interprétation dans la Société Internationale (Helbing, 2020), at 369 et seq. See also, Gerrit Betlem “The Doctrine of Consistent Interpretation: Managing Legal Uncertainty” (2002) 22 Oxford Journal of Legal Studies 397, at 397–​399. Interpretation is at the core of legal reasoning. The English concept “construction” captures well the interconnection between legal reasoning and interpretation. On this interconnection, see Traoré (above note 31), at 125 et seq.; Ilmar Tammelo Treaty Interpretation and Practical Reason: Towards a General Theory of Legal Interpretation (The Law Book Company Limited, 1967), at 36; Charles Djeffal Static and Evolutive Treaty Interpretation. A Functional Reconstruction (Cambridge, 2016) at 352 et seq.

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ignore the hierarchal manner in which different rules and regimes coexist in a legal system. This manifests itself as a strong interpretive presumption used, at the very least, implicitly. Moreover, the fact that some norms weigh more than others forms part of legal reasoning and interpretation.33 This affects the way that interpreters pick and choose the relevant rules to be applied in a given situation. It similarly influences the manner in which “legal facts” are subsumed under operative rules or concept.34 Interpretation is central to these processes.35 Hierarchy, therefore, implies a certain manner of thinking and interpreting law. It obliges legal operators to be wary of actual or potential conflict, to prevent their occurrence or to resolve them in favour of the prevailing norm. Insofar as the presumption against conflict exists in any legal system –​though most prevalent in international law due to the absence of a proper mechanism to review sovereign acts and rules –​it is the role of the interpreter to avoid these conflicts as much as possible using the relative flexibility of the interpretative process.36 Secondly, the concept of conflict of norm, which is consubstantial to jus cogens,37 is ultimately linked to interpretation. To declare that a conflict exists between a treaty or any other norm of international law and jus cogens, one has to interpret the latter as well as the former. It is unlikely that a provision of an international instrument on its face violates jus cogens norms.38 In most cases, in effect, conflict with a given jus cogens norm comes from the interpretation given to the competing norm. As pointed out by Tladi “whether or not a treaty conflicts with a norm of jus cogens can only be determined after the establishment of the meaning of the treaty”.39 This raises the specific problem of the scope of application of the act, whose conformity with jus cogens is

33 34

35 36 37 38 39

Koskenniemi (above note 1), at 566. According to him “legal reason is a hierarchical form of reason, establishing relationships of inferiority and superiority between units and levels of legal discourse”. Jean Salmon “Le Fait dans l’Application du Droit International” (1982) 175 Collected Courses of the Hague Academy of International Law 227, at 296 et seq. See also, Alexander Orakhelashvili The Interpretation of Acts and Rules in Public International Law (Oxford, 2008), at 108. Salmon (above note 34), at 326. (“les actes de qualification sont une forme d’interprétation”). Joost Pauwelyn Conflict of Norms in Public International Law: How wto Law Relates to Other Rules of International Law (Cambridge, 2003), at 215 et seq. According to Robert Kolb, “there is always some form of normative conflict behind the operation of jus cogens”. See Kolb (above note 7), at 86. Third Tladi Report on jus cogens (above note 18), at para. 151. See also, Kolb (above note 7), at 86 et seq. Id, at para. 56.

138 Traoré under test. Needless to say, this is a matter of interpretation as the resolution of such a conflict is. Conversely, the same test implies the determination of the meaning and scope of the jus cogens norm in question. Sometimes, the existence of a conflict with other rules depends upon the scope given to the jus cogens norm. For instance, the scope of the prohibition of torture, one of the most well-​ established peremptory norms, is unclear. What does the prohibition imply for States apart from the basic negative obligation to refrain from committing torture?40 Similarly, the right to self-​determination, another principle, generally accepted as jus cogens norm, lacks clarity in terms of its scope. Does the jus cogens dimension of the principle encompass, for instance, permanent sovereignty over natural resources?41 Depending on how these norms are construed conflict might appear or might be avoided. As made clear by the ilc Study Group on fragmentation of international law, interpretation plays a critical role in the resolution of normative conflicts in international law as well as a function of harmonisation.42 In light of the above, this chapter discusses the effects of jus cogens on the interpretation of international norms. The chapter argues that beyond the realm of treaty validity/​nullity originally associated with peremptory norms, the concept of jus cogens has a strong interpretive implication for all international acts and rules. The conflict avoidance and harmonising role of interpretation explains why there is, in practice, so little instances where jus cogens has entailed the nullity of a competing rule or act. This is particularly true in the international system where nullity, as a sanction of illegality, is hardly effective.43 Section two discusses the principle of consistent interpretation with jus cogens as the most important interpretive implication of the emergence of peremptory norms in international law. It further argues that this principle 40

A notable illustration of such divergences about the scope of this prohibition is given by Belgium and Senegal views before the icj. See Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, icj Reports 2012, 422, at paras. 71-​117. 41 See Case Concerning the Delimitation of Maritime Boundary Between Guinea-​Bissau/​ Senegal, Arbitral Award, Report of International Arbitral Awards, 31 July 1989, at paras. 37-​39. See also, Mamadou Hebié and Catherine Maia “Article 13” in Giovanni Distefano, Gloria Gaggioli and Aymeric Hêche(eds.) La Convention de Vienne de 1978 sur la Succession d’Etats en Matière de Traités: Commentaire Article par Article et Etudes Thématiques, vol.1, (Bruylant, 2016), at 461–​528; Orashkelavili (above note 12), at 52. 42 See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law –​Report of the Study Group of the International Law Commission (finalised by Martti Koskenniemi) (A/​c n.4/​L.682)(2006), at para. 37–​43 (hereafter, Fragmentation Report). 43 Dupuy and Kerbrat (above note 14), at 328.

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is a consequence of the hierarchical status of peremptory norms in international law and aims not only at safeguarding the formal coherence of the system of international law but also its substantive consistency. Section three takes a closer look at the impacts of jus cogens on the interpretation of specific rules of international law such as treaties, customary international law as well as resolutions of the United Nations Security Council and unilateral acts of States. 2

The Principle of Consistent Interpretation with Peremptory Norms

2.1 Meaning The principle of consistent interpretation requires interpreters to attribute, to any legal act under interpretation, effects which are in accordance with a “superior” legal act. This principle is not provided for under international law and derives from the very nature of peremptory norms as higher law. The ilc has recently recognised such a principle stating that Where it appears that there may be a conflict between a peremptory norm of general international law (jus cogens) and another rule of international law, the latter is, as far as possible, to be interpreted and applied so as to be consistent with the former.44 The requirement of consistent interpretation of an inferior rule, vis-​à-​vis a superior one, is almost a truism in domestic law due to the highly hierarchical structure of domestic legal systems.45 As opposed to its ordinariness in domestic law, the principle of consistent interpretation has experienced quite a different fate in international law. Whereas international law has traditionally been regarded as a horizontal 44 Draft Conclusion 20 of the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​first session, General Assembly Official Records (A/​74/​10) (2019). 45 In particular, regarding the supremacy of the Constitution in the domestic system, the principle of consistent interpretation with the Constitution is acknowledged by many national high courts. For example, the Swiss Federal Tribunal has stated long time ago that legislative acts must be interpreted in accordance with the Constitution. See among others, atf 120 Ia 299. Consid.2b(f); atf 118 iv, 153, 163 consid.4c (d). On the doctrine of the US Federal Courts, see Symposium, “Ordering State-​Federal Relations Through Federal Preemption Doctrine” (2008) 102 Northwestern University Law Review 503. See generally Hans Kelsen, General Theory of Law and State (Russell and Russell, 1961), at 115.

140 Traoré system of legal norms, the interpretive directive of consistent interpretation operates in the context of normative hierarchy. As rightly stressed by L. Daniele: […] En général, l’interprétation conforme […] présuppose qu’entre les règles en cause existe une hiérarchie, c’est-​à-​dire qu’une des règles possède une force majeure par rapport aux autres. Dans ce cas, l’interprète est censé vérifier s’il est possible d’attribuer à la règle de rang inférieur une signification qui conduise à éliminer toute contradiction par rapport à la règle de rang supérieur.46 However, despite the little role of hierarchy in classical international law, the principle of consistent interpretation has not been totally absent in this legal system. The first illustration is the law-​making process within international organizations. The constituent act of the organisation stands, relatively, as the higher law in the organisation’s limited legal order and prevails over all secondary legislations.47 It comes, therefore, as no surprise that the requirement of consistent interpretation of secondary law with regard to primary law is of critical importance in such a situation. This is the reason why, for instance, United Nations Security Council resolutions must be interpreted in accordance with the United Nations Charter (UN Charter).48 The interpretative directive bears even greater importance in international organisations having a more sophisticated legal order such as the European Union (EU). The relationship between EU law and the national laws of its member States is particular since the superiority of EU laws over national legislations is undisputed. The principle of consistent interpretation of the latter vis-​à-​vis the former has therefore a place of pride

46

‘‘[…] In general, consistent interpretation […] presupposes that between the rules at stake there is a hierarchy, i.e., one of the rules has ‘force majeure’ over the others. In this case, the interpreter is supposed to check whether it is possible to attribute to the rule of lower rank a meaning which leads to the elimination of any contradiction with the rule of higher rank’’ (this author’s translation). Luigi Daniele “Vingt-​cinq ans d’interprétation conforme: un principe encore en quête de définition” in Bruno Nascimbene and Fabrice Picod (eds.) L’Italie et le Droit de l’Union Européenne, L’Italia e il Diritto del l’Unione Europea (Bruylant, 2010), at 143. See also, Betlem (above note 31), at 398. 47 The icj made clear the importance of the constitutive act of the Organisation, as the legal basis of its actions. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, icj Reports 1949, p. 174, at para. 180. 48 Traoré (above note 31), at 369 et seq.

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in the relationships between EU legal system and the domestic legal orders of EU members.49 Secondly, the International Court of Justice (icj) has endorsed the principle of consistent interpretation in some cases. It is worth recalling that the Court deals usually with international law rules deriving from treaties, custom or other sources of international law, and no strict hierarchy exists between these rules. However, although rare, there are situations in which the Court is called to apply rules with different hierarchical status. This is particularly the case when the application of domestic law is at stake before the Court.50 For instance, in Frontier Dispute (Burkina Faso/​Niger) the Court had to interpret and apply French colonial legislation to determine the borders between the parties. This operation involved two administrative enactments bearing a different hierarchical status. The icj applied the principle of consistent interpretation considering that the inferior law (Arrêté) has to be interpreted in accordance with the superior law (Decree) in French legislation.51 As it is apparent from the above, the principle of consistent interpretation refers to the obligation for any interpreter of an act or a rule having an inferior status, to ensure that the meaning and effect given to the rule or status in question accords with the superior norms. 2.2 Rationale and Functions The principle of consistent interpretation of rules and acts of international law with jus cogens is based on solid ground and serves different purposes in the international legal system. The requirement is grounded on the hierarchical superiority of peremptory norms, which itself is a logical consequence of their non-​derogability character.52 According to the International Criminal Tribunal for the former Yugoslavia (icty) in Furundžija, the major feature of jus cogens relates to the hierarchy of rules in the international normative 49 50

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Jean Paul Jacqué “L’obligation d’interprétation conforme en droit communautaire” in Bruno Nascimbene and Fabrice Picod (above note 46), at 199 et seq.; Betlem (above note 31), at 397 et seq. Contrary to the pcij’s classical dictum, in Certain German Interests, that national laws are merely facts, international court are very often called upon to interpret and apply domestic laws. Even in that case, the pcij seems to have acknowledged that fact. See Certain German Interests in Polish Upper Silesia, Judgement of the Permanent Court of International Justice, Serie A. N°7, 1926, at 19. For an early discussion of this issue, see Jenks, (above note 29), at 548 et seq.; See also Daniel Peat, Comparative Reasoning in International Courts and Tribunals (Cambridge, 2019), at 49–​82. Frontier Dispute (Burkina Faso/​Niger), Judgment, icj Reports 2013, at 44. First Tladi Report (above note 6), at para. 61-​72.

142 Traoré order.53 Moreover, in the case concerning the Legality of the Threat or Use of Nuclear Weapons, the icj suggests the hierarchical component of the notion of jus cogens.54 As rightly pointed out by Tladi, the idea that jus cogens can invalidate other rules of law is both a result and reflection of normative superiority.55 Although the conception referring to jus cogens as norms that bear a superior hierarchical status in the international law system is self-​evident,56 this idea has been sometimes challenged. For instance,57 R. Kolb argues for the hierarchical neutrality of jus cogens norms and posits that jus cogens merely serves as a legal technique.58 He contends that the hierarchical conception is hardly useful and even misleading as jus cogens has more to do with priority than superiority.59 However, Kolb’s objection is deeply embedded in his particular conception of jus cogens. 53 54

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Prosecutor v. Furundžija, Judgement of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, Case No.: it-​95-​17/​1-​T 10 December 1998, at para. 153. According to the Court, “The question whether a norm is part of the jus cogens relates to the legal character of the norm. The request addressed to the Court by the General Assembly raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is, therefore, no need for the Court to pronounce on this matter”. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1CJ Reports 1996, 36, at para. 83. First Tladi Report (above note 6), at para. 69. See among others, Distefano (above note 6), at 251 et seq.; Thomas Kleinlein “Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies” (2015) 46 Netherlands Yearbook of International Law 173; de Wet and Vidmar (above note 21), at 3; Orakhelashvili (above note 12), at 11 et seq.; Kolb (above note 7), at 32; Dupuy (above note 6), at et seq.; Mustafa Kamil Yasseen “Réflexions sur la Détermination du “Jus Cogens” ’ in Société́ Française pour le Droit International, L’Élaboration du Droit International (Pedone, 1975), at 206. It has sometimes, although rarely, also been argued that the hierarchical conception is lacking in judicial practice. See for example, de Wet and Vidmar (above note 21) at 3. According to them “courts have been reluctant to accept the wide interpretation of hierarchical superiority of the norms of this character”. Kolb has also made a similar argument. This argument, however, misses the point for two reasons. It is possible to see in many cases before human rights courts an influence of the superiority status of some norms. Second, even if we admit the lack of judicial practice, this cannot justify the conclusion of non-​existence of hierarchical superiority. Otherwise the very concept of jus cogens could be considered as non-​existent because it is a fact that it has lacked judicial practice for a long time. For other critiques, Lee M. Caplan “State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory” (2003) 97 American Journal of International Law 741, at 771 et seq. Kolb (above note 7), at 34. Ibid.

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Kolb’s distinction between priority and superiority seems rather to be superfluous and this is, perhaps, the reasons why he later conceded that jus cogens norms establish a “relative superiority” which is “situated in the relationship between two concrete norms and does not move beyond them into the general setting of objective norms of the legal order”.60 But the “relative superiority” argument does not take us very far, since regarding the very nature of jus cogens, this superiority –​even if assuming relative superiority –​extends to each and every act, and each and every rule of the legal order. For this reason, in lieu of being relative, one has to accept that this superiority, then, becomes the objective legal character of jus cogens norms. As Waldock had pointed out, jus cogens is clearly about superiority rather than mere priority.61 Similarly, the ilc’s Study Group on fragmentation of international law stressed that “jus cogens encapsulates a rule of hierarchy senso strictu, not simply a rule of precedence”.62 Even if it is accepted that jus cogens does not establish, in international law, a hierarchical structure identical to the one in domestic law, it does provide for the superiority of peremptory norms over other rules in international law.63 Once the principle of hierarchical superiority of jus cogens over other norms of international law has been accepted, it becomes easier to comprehend the systemic functions of the principle of consistent interpretation. First, interpretation in accordance with jus cogens serves the formal as well as the material (substantive) consistency of the international legal system.64 Formally, rules and acts of international law should be interpreted in accordance with jus 60 61

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Id., at 35. “The problem of resolving conflicts between successive treaties dealing with the same matters may sometimes overlap with the question of conflict with a jus cogens rule; but the rule in the present article is an overriding one of international public order, which invalidates the later treaty independently of any conclusion that may be reached concerning the relative priority to be given to treaties whose provisions conflict”. Second Report of the Special Rapporteur (Humphrey Waldock) on the Law of Treaties (A/​c n.4/​156) (1963), at 53 (emphasis added). This is also the position of the first ilc Special Rapporteurs, who introduced the topic before the ilc. See Report of the Special Rapporteur (Hersch Lauterpacht) on the Law of Treaties (A.cn.4/​63) (1953), at 155; Third Report of the Special Rapporteur (Gerald Fitzmaurice) on the Law of Treaties (A/​c n.4/​115) (1958), at 41. Fragmentation Report (above note 42), at para. 365. Indeed, the hierarchy of norms in domestic law is nothing but a reflection of the hierarchy law making bodies within the State. Such a hierarchy does not exist in international law yet since States, that are the legislator par excellence, remain equal. See Combacau (above note 21), at 88; Dupuy and Kerbat (above note 14), at 18. Fuad Zarbiyev Le Discours Interprétatif en Droit International Contemporain : Un Essai Critique (Bruylant, 2015), at 182. See also, Fragmentation Report (above note 42), at 225 et seq.

144 Traoré cogens as a mean of preventing logical contradictions in the system. Regarding the higher law status of peremptory norms, no other rule should be given meaning or effect that runs counter norms of jus cogens. Otherwise, it would defeat the very essence of the distinction between superior and inferior norms. Consistency in this case, is a consequence of the principle of non-​contradiction within a system.65 As to the material consistency, as jus cogens norms express fundamental beliefs pertaining to international public order, the substantive content of any other international acts or norms should accord with these shared beliefs/​values. As it aims at giving effect to acts or rules, interpretation must, therefore, ensure such a consistency with what is fundamental in the system. This substantial consistency requirement appears clearly in the reasoning adopted by icty in Furundžija.66 Secondly, the principle of consistent interpretation with jus cogens plays a harmonizing role in the system. One of the most important functions performed by peremptory norms is to shape the international legal order around essential shared conceptions expressed in prominent rules. Consistent interpretation with jus cogens aims at giving effect to these highest conceptions.67 However, providing the potential invalidating effect of peremptory norms over contrary acts, the interpretive process must aim at avoiding conflict. Indeed, when it comes to jus cogens norms, the declaration of a normative conflict leads to a “draconian solution”, that is, the voidness of the contradicting act and norms.68 Yet, general, international law seeks constantly to avoid normative conflict.69 It is therefore the role of the interpretive process to realise harmonization of potentially conflicting norms. This has been demonstrated for instance with Article 103 of the UN Charter. As a simple rule of precedence, it is obvious that the effects of this provision are far less “draconian” than the total

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Karl Popper The Logic of Scientific Discovery (Routledge, 2002), at 72 et sq. The author distinguishes between systems that are consistent and systems that are not, using essentially the criteria of non-​contradiction. On the importance of logic in international legal reasoning, see also, Ilmar “Tammelo, Law, Logic and Human Communication” (1964) 50 Archiv fur Rechts-​und Sozialphilosophie 331, at 331–​332. See also, Olivier Corten, L’Utilisation du “Raisonnable” par le Juge International: Discours Juridique, Raisons et Contractions (Bruylant, 1997), at 220–​221. Furundžija (above note 53), at 153–​157. In this sense, Fragmentation Report (above note 42), at para. 419. Third Tladi Report (above note 18), at 55–​56. Fragmentation Report (above note 42), 25, at para.37.

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invalidating potential of jus cogens.70 But still, practice has shown that Article 103 produces on legal operators a continuous conflict avoidance tendency.71 In that regard, the conflict avoidance function of interpretation becomes more critical when a peremptory norm is at stake. International law is mostly a consent-​based system. Sovereignty and contractual freedom are key to its existence. Jus cogens has the potency to render invalid acts adopted pursuant to this contractual freedom and the principle of sovereignty. This is why rules of international law must be interpreted in such a way that they do not conflict with a norm of jus cogens and, thus, to avoid invalidity.72 In practice, the radical effect of any conflict with jus cogens has pushed to extremes the reflexive conflict avoidance interpretive technique. For instance, in Jurisdictional Immunities of the State, the icj’s decision was based on the rationale that there is no conflict between jus cogens rules and the rule of customary law requiring one state to accord immunity to another. According to the Court, the two sets of rules addressed different matters.73 However, it is worth noting that the principle of consistent interpretation with jus cogens is based on the interpretive presumption that subjects of

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See Fragmentation Report (above note 42), at para 365: “What the concept of jus cogens encapsulates is a rule of hierarchy senso strictu, not simply a rule of precedence. Hence, the result of conflicts between treaties and jus cogens is that the former shall not be non-​ applicable, but wholly void, giving rise to no legal consequences whatsoever”. Traoré (above note 31), at 415 et seq. See also, Nada v. Switzerland, Judgement of the European Court of Human Rights, Grand Chamber, Application no. 10593/​08 12 September 2012, at para. 8; Fragmentation Report (above note 42), at para. 37; Pauwelyn (above note 36), at 240–​44. Third Tladi Report (above note 18), at para. 59. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), icj Reports 2012, p. 99, at para. 92–​97. This has constantly been the position of the Court. See Arrest Warrant (Democratic Republic of the Congo v. Belgium), icj Reports 2002, p.3 at para. 60; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (above note 30) at para. 34. But this position has been vehemently criticised. See for instance Pierre-​Marie Dupuy “Le Jus Cogens, les Mots et les Choses: Où en est le Droit Impératif Devant la cij près d’un Demi-​Siècle après sa Proclamation?” In Enzo Cannizzaro(eds.) (above note 14), at 116–​124. The same line of reasoning has been adopted by the European Court of Human Rights. See Al Adsani v. United Kingdom, Judgement of the European Court of Human Rights, Application No. 35763/​97, Merits, 21 November 2001, at paras. 47-​48; Fogarty v. United Kingdom, Judgement of the European Court of Human Rights, Application No. 37112/​97, Merits, 21 November 2001, at paras. 25-​26; McElhinney v. Ireland, Judgement of the European Court of Human Rights, Application. No. 31253/​96, Merits, 21 November 2011, at paras. 24-​25.

146 Traoré international law must not be presumed to act in a manner that is contrary to jus cogens.74 Therefore, when giving effect to their intention, which is the very nature of interpretation, as a premise, the interpreter must consider that the authors of the act have not intended to depart from jus cogens. The “deterrent effect” produced by jus cogens on the subjects of the system impacts the way legal acts come to be.75 Depicting it as “technique de l’interprétation préconstituée”, Sur has demonstrated that the constraints on the elaboration of a legal act entails, ex ante, an important impact on the way the act is interpreted.76 According to Orakhelashvili, Articles 53 and 64 of vclt constitute a warning directed to States that if they insert in treaties, clauses conflicting with jus cogens, such treaties will be void.77 In that regard, the presumption that parties do not intend to offend jus cogens, although strong, should not be regarded as irrebuttable. Interpretation may not always lead to the “happy ending” conflict avoidance solution. It can also lead to the ascertainment of a genuine conflict calling for the invalidation of the conflicting inferior norms.78 As State practice reveals, there are some instances when the application of the principle of consistent interpretation has led to the invalidation of a competing act or rule vis-​à-​vis a jus cogens norm.79 Finally, the principle of consistent interpretation with jus cogens is a general interpretive directive aimed at driving the interpretive process toward a certain result. It cannot be a substitute for the application of usual rules of interpretation codified by the vclt. The next section will examine the way interpretation operates regarding particular rules of international law.

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More generally in entering into legal transaction, subjects of international law are not presumed to be acting against general principles of international law. In this sense, regarding the self-​evident character of this reference, the icj considers that it is a presumption. See, e.g., Case concerning the Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections), icj Reports 1957, 125. Furthermore, this prohibition is designed to produce a deterrent effect in that it signals to all members of the international community and the individuals over whom they wield authority that the prohibition of torture is an absolute value from which nobody must deviate. See Furundžija (above note 53), at 155. Serge Sur L’Interprétation en Droit International Public (lgdj, 1974), at 365 et seq. In the same line, Sienho Yee “The Dynamic Interplay between the Interpreters of Security Council Resolutions” (2012) 11 Chinese Journal of International Law 613, at 616. Orashkelavili (above note 12), at 167. Pauwlyn (above note 36), at 251. See also, Clarence W. Jenks “The Conflict of Law-​Making Treaties” (1951) 30 British Yearbook of International Law 401, at 429. Third Tladi Report (above note 18), at para. 30 et seq.

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Peremptory Norms and Treaty Interpretation

3.1 General Interpretation of instruments has been described as an art rather than an exact science80 that requires more “esprit de géométrie” than “esprit de finesse”.81 The process of interpretation, therefore, should not be considered as offering scientific tools for the determination of a “correct signification”. Rather, it is indisputable that the use of the rules of interpretation can lead to more than one possible interpretation of a disputed provision.82 Nonetheless, international law has developed a consistent regime applicable to the interpretation of its acts and rules. The rules of the vclt on interpretation are genuine legal rules and apply outside the ambit of the law of treaties. Contrary to what is often argued,83 the uncertainty about the outcome of the interpretation of international acts and rules does not deprive these rules of their legal character. Moreover, the uncertainty over the rules of interpretation is nothing but the reflection of the uncertainty of the law as a whole,84 and perhaps, a reflection of the uncertainty about finding meaning in human experience tout court.85 Thus, as pointed out by Allott, interpretation is “a freedom within constraints” an “exact art”.86 As a general rule of interpretation, Article 31 of the vclt prescribes that a “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light 80 81 82 83

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Para. 4 of the Commentary to Draft Article 28 of the Draft Articles on the Law of Treaties with Commentaries, Report of the International Law Commission, Eighteenth session, General Assembly Official Records (A/​c n.4/​s er. A/​1966/​Add. 1) (1966), at 218. Patrick Dailler, Mathias Forteau and Alain Pellet Droit International Public (lgdj, 2009), at 289. This has clearly been acknowledged in judicial practice. See for example, Sen ̃or Tza Yap Shum v. The Republic of Peru, Judgement of the International Centre for Settlement of Investment Disputes, 12 February 2015, at para. 80. See for instance, Andrea Bianchi “The Game of Interpretation in International Law: The Players, the Cards, and Why the Game is Worth the Candle” in Andrea Bianchi, Daniel Peat and Matthew Windsor (eds.) Interpretation in International Law (Oxford, 2015), at 43 et seq. Traoré (above note 31), at 22: “En creux de l’affirmation suivant laquelle l’interprétation est un art plus qu’une science, réside une illusion positiviste de scientificité du droit conçu, par certains, comme apte à proposer des solutions revêtant toujours un haut degré de clarté́ et de certitude”. See Fuad Zarbiyev “The ‘Cash Value’ of the Rules of Treaty Interpretation” (2019) 32 Leiden Journal of International Law 33, at 33–​45. Phillip Allot “Interpretation –​An Exact Art” in Andrea Bianchi Daniel Peat, and Matthew Windsor (eds.) (above note 83), at 382.

148 Traoré of its object and purpose”.87 The general rule is articulated around the triptych of text/​context/​object and purpose. The vclt further provides various means of interpretation that aim at shedding light on the elements of the triptych.88 There are not, stricto sensu, rules of interpretation but mere tools available to the legal operator to give effect to the general rule.89 As such, contrary to the impression given by the vclt there is no clear-​cut hierarchy between the so-​ called supplementary means of interpretation and those provided for under the general rule.90 Any treaty interpretation process shall be conducted according to the general rule and having recourse to the pertinent means provided for under Articles 31 and 32 of the vclt. The more the process is elaborated, and the interpretation corroborated by the recourse to different means, the more convincing the outcome is for its audience.91 In the context of jus cogens, as 87 88

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Article 31 of the vclt. Strictly speaking, unlike paragraph 1, paragraphs 2 and 3 of Article 31 provide for means of interpretation and not a rule. In that regard, they form part of the means of interpretation as those provided for in article 32. See articles 31 and 32 of the vclt. See Traoré (above note 31), at 203; 322 et seq. See also Dire Tladi “Is the International Law Commission Elevating Subsequent Agreements and Subsequent Practice?’’, EJIL :Talk !, 30 August 2018 available at https://​www.ejiltalk.org/​is-​the-​international-​law-​commission-​elevating-​subsequent-​ agreements-​and-​subsequent-​practice/​ (accessed 27 October 2020). Paragraph 2 of Article 31 refers to contextual elements such as agreements or other instruments relating to the treaty. Paragraph 3 a) and b) aims at using the manner in which the treaty is applied to capture the intention of the parties. As it will be made clear in this section, paragraph 3) c) refers to the legal environment which is nothing but an extension of the context. Similarly, ‘preparatory works’ and ‘circumstances of conclusion’ provided for by Article 32 are part of the extensive context of the treaty. In sum, all these means, serve the general rule provide for in Article 31 paragraph 1. As pointed out by the ilc Study Group on fragmentation, “there is no reason to separate these techniques too sharply from each other’s … sometimes external sources may usefully clarify the ordinary meaning of treaty words, or their object and purpose”. See Fragmentation Report (above note 42), at para. 428. For a general critique of the formal separation between article 31 and 32, see Ulf Linderfalk “Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or not? Interpreting the Rules of Interpretation” (2007) 54 Netherland International Law Review 133, at 134; Georges Abi-​ Saab “The Appellate Body and Treaty Interpretation” in Giorgio Sacerdoti, Alan Yanovich and Jan Bohanes (eds.) The wto at Ten: the Contribution of the Dispute Settlement System (Cambridge, 2006), at 458–​459; Denis Alland “L’Interprétation du Droit International Public” (2014) 362 Collected Courses of the Hague Academy of International Law162, at 162 et seq. On the absence of such a hierarchy in the interpretation of unsc resolutions, See Traoré (note 31 above), at 322–​363. Olivier Corten Méthodologie du Droit International (Université Libre de Bruxelles, 2017), at 126; Andrea Bianchi “International Adjudication, Rhetoric and Storytelling” (2018) 9 Journal of International Dispute Settlement 28, at 37.

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already explained above, the interpretative process must be informed by the consistent interpretation requirement. In addition, as a general principle of interpretation and application of international law, good faith is also a critical element of the process.92 In theory, a treaty may offend against peremptory norms in different ways. One can imagine a treaty between States, the object and purpose of which is contrary to a norm of jus cogens. It is also imaginable that one provision of the treaty does not accord with a given peremptory norm. However, in practice, it is unlikely that the content of the treaty, on its face, transgresses peremptory norms. In most cases, violations of jus cogens norms are likely to occur when subjects of international law “attempt to exercise rights and prerogatives under a treaty which does not itself explicitly conflict with jus cogens but can prejudice it in the course of its application”.93 International agreements such as treaties are often deliberately ambiguous. It has even been said that they are “disagreements reduced to writing”94 or “une mise entre parenthèses des contradictions”.95 In this regard, some treaty provisions may be formulated in such a way that a certain reading of their scope of application potentially contradicts jus cogens norms. As indicated by Costelloe, the use of open-​ended terms such as “all necessary measures” or “all necessary action” increases the likelihood for a variety of interpretations including those potentially conflicting with peremptory norms.96 The case concerning Oil Platforms before the icj illustrates how “innocent” treaty provisions can be construed in such a way that they contradict jus cogens norms.97 Similarly, as revealed from the judicial practice of the European Court of Justice, only a certain interpretation of the territorial scope of the Fisheries Partnership Agreement between the European Community and the Kingdom

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Richard Gardiner Treaty Interpretation (2nd Edition, Oxford, 2015), at 176 et seq. Alexander Orakhelashvili “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions” (2005) 16 European Journal of International Law 59, at 68. 94 Phillip Allott “The Concept of International Law” (1999) 31 European Journal of International Law 31, at 43. 95 See Charles Chaumont “Cours Général de Droit International Public” (1970–​1) 129 Collected Courses of the Hague Academy of International Law162 at 345. See also, Jean Salmon “Le Droit International à l’Épreuve au Tournant du xxie Siècle” (2002) 2 Bancaja Euromediteranian Courses of International Law 35, at 119. 96 Costelloe (above note 13), at 82. 97 See below section 3.3 on illustrations.

150 Traoré of Morocco of 2006 may encompass the waters of Western Sahara, in violation of the right to self-​determination of the peoples of Western Sahara.98 The foregoing indicates that interpretation performs the function of assigning the treaty a meaning and scope that is in accordance with a peremptory norm. The fact that the use of rules of interpretation can lead to more than one acceptable interpretation represents a staggering windfall for the interpreter. Indeed, among different “acceptable” meanings they have to choose the one that is consistent with the norm of jus cogens. In such a situation, rather than invalidating the treaty itself, as per the radical effect of Article 53 of vclt, the outcome of the interpretation is to deprive any legal effect to a particular way of executing it.99 The declaration of conflict with jus cogens, with all the drastic consequences that would follow, will be made only after a steady attempt to reconcile the meaning of the treaty with the jus cogens norms in question. The obligation on the interpreter to avoid conflict is an obligation of mean, and not necessary of result. This is well expressed by the term “as far as possible” in the icl’s draft conclusion on the topic.100 The Specificity of the Reference to Jus Cogens as a Relevant Norm under Article 31(3) (c) of the vclt Article 31(3)(c) of the vclt plays a prominent role in the context of peremptory norms and treaty interpretation.101 According to this provision, together with the context, the interpretive process must take into consideration any relevant rules of international law applicable in the relations between the parties.102 The provision has been described as referring to the “normative environment (‘system’)”103 in which treaties are concluded or their “milieu 3.2

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Front populaire pour la libération de la saguia-​el-​hamra et du rio de oro (Front Polisario) v. Council of the European Union, Judgement of the European Court of Justice,,Case T-​512/​ 12, 10 December 2015, at para. 247. Orakhelashvili (above note 12), at 167, who explains that Article 53 of the Vienna Convention does not refer at all to the possible incompatibility of the execution of a treaty with the content of a jus cogens norm and does not sanction a treaty in that case. According to him “perfectly legitimate content may produce, through the execution of a treaty, illegal results violating a jus cogens norm”. But consistent interpretation precisely means, in these cases, the obligation to choose the way of executing the treaty that does not offend the peremptory norm at stake. See Draft Conclusion 20 of the Draft Conclusions on Peremptory Norms (above note 44). Costelloe (above note 13), at 87. Article 31(3)(c) of the vclt reads as follows: “There shall be taken into account, together with the context … 3. any relevant rules of international law applicable in the relations between the parties”. Fragmentation Report (above note 42), at para. 413.

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normatif”.104 In fact, stating that a treaty should be interpreted taking into consideration other relevant rules seems to pertain to a truism.105 Treaties cannot be interpreted in a “vacuum”106 or a “desert juridique”.107 The icj made this rule very clear a long time ago. According to the Court: … a rule of international law, whether customary or conventional, does not operate in a vacuum; it operates in relation to facts and in the context of a wider framework of legal rules of which it forms only a part.108 The provision in Article 31(3)(c) simply refers to the context lato sensu as a means of interpretation.109 This interpretative tool has been depicted as “systemic integration”.110 However, despite its apparent clarity, Article 31(3)(c) raises a number of issues that have been abundantly discussed in the literature.111 As far as jus cogens is concerned, the provision carries some specificities allowing additional comments. Firstly, peremptory norms change the ordinary approach of systemic integration as provided for by Article 31(3) (c). The requirement according to which the interpreter must take into account “any relevant rules” of international law applicable to the parties is vague. The interpreter can refer hypothetically, and with relative discretion, to a large number of rules in the international legal system. Moreover, the weight to be given to the “relevant rule” in the interpretive process must be cautiously defined and is necessarily relative. An approach which gave excessive weight to the normative environment over the particular treaty under interpretation “would –​like a generalized presumption about the precedence of lex generalis over lex specialis –​stifle treaty-​making”.112

104 Mustafa Kamil Yasseen “L’Interprétation des Traités d’Après la Convention de Vienne sur le Droit des Traités” (1976) 151 Cours de l’Académie de Droit International de La Haye 1, at 62. 105 See Fragmentation Report (above note 44), at para. 414: “Reference to general rules of international law in the course of interpreting a treaty is an everyday, often unconscious part of the interpretation process”. 106 Loizidou v. Turkey, Application (Merits), Judgement of the European Court of Human Rights,18 December 1996, at para. 43. 107 Giovanni Distefano “L’Interprétation Évolutive de la Norme Internationale” (1994) 40 Annuaire français de droit international 373, at 383. 108 Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion, ICJ Reports 1980, 73, at para. 10. 109 Kolb (above note 25), at 457. 110 Fragmentation Report (above note 42), at para. 37. 111 Id., at para. 424 et seq. 112 Id., at para. 473.

152 Traoré However, when a norm of jus cogens is at stake, the above conception is completely reversed. The interpreter cannot ignore a peremptory norm. By their overriding character, these norms shall, at any cost, be taken into account as a relevant norm in the interpretive process. Further, unlike other rules or principles of international law devoid of peremptory character, the weight to be given to the jus cogens norms in the interpretive process is not relative, but absolute. As Judge Simma aptly suggested, when jus cogens norms are involved, the principle of systemic integration turns to “a legally insurmountable limit to permissible treaty interpretation”.113 The reason being that the relativeness of the weight in ordinary cases is based upon the ability of the parties to contract out from other rules of international law.114 As jus cogens norms cannot be contracted out, their weight in the process is absolute. In Council of the European Union v. Front Polisario, the European Court of Justice expressly indicated that in accordance with Article 31(3)(c), the principle of self-​determination must be taken into account in the interpretation of the Fisheries Partnership Agreement with Morocco.115 This decision is interesting in the sense that in addition to systemic integration, the Grand Chamber explicitly referred to elements of the general rule of treaty interpretation. This includes good faith, textual and contextual interpretation, and subsequent practice.116 It highlights the fact that consistent interpretation with jus cogens always takes place in an ordinary interpretive process. Article 31(3)(c) further requires that the “relevant rule” referred to shall be “applicable in the relations between the parties”. The presence of jus cogens norms will simply set aside this condition. Indeed, when they exist, rules of peremptory nature will automatically apply rationae personae. Considering

113 Separate Opinion of Judge Simma in Oil Platforms (Islamic Republic of Iran v. United States of America), icj Reports 2003, p. 161, at para. 9. 114 World Trade Organization, Report of the Panel on Korea –​Measures Affecting Government Procurement (wt/​d s163/​7) (2000) 183, at para. 7.96, where the wto Panel made the following observation: “Customary international law applies generally to the economic relations between wto Members. Such international law applies to the extent that the wto treaty agreements do not ‘contract out’ from it. To put it another way, to the extent that there is no conflict or inconsistency, or an expression in a covered wto agreement that implies differently, we are of the view that the customary rules of international law apply to the wto treaties and to the process of treaty formation under the wto”. 115 Council of the European Union v. Front Populaire pour la Libération de la Saguia-​el-​hamra et du Rio de oro (Front Polisario), Judgment of the Grand Chamber of the European Court of Justice, 21 December 2016, at para. 86. 116 Id., at paras. 81-​127.

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their erga omnes117 application, the requirement of their applicability between the parties is always satisfied.118 Secondly, Article 31(3)(c) raises the issue of evolutive interpretation. It is generally accepted that the provision does not indicate whether the “applicable rules of international law”, referred to by the interpreter, are to be determined at the date on which the treaty was concluded, or at a given date of its application. The ilc deliberately refrained from resolving the issue when it prepared the Articles on the Law of the Treaties that became the vclt.119 This is, however, of great importance as it opposes the understandable need to respect the historic intention of the parties on the one hand and the legitimate concern to take into consideration the evolution of circumstances in the process of interpretation on the other hand. Therefore, the traditional approach to this issue has been to avoid any categoric solution. Rather, the problem is a proper matter of interpretation that should be dealt with on a case-​by-​case basis. While some treaty provisions could be intended to stick to the past (original intention) others may intrinsically look to the future and leave room open for adaptation through an interpretive process (principle of contemporaneity).120 However, while such a solution would be acceptable under normal circumstances, different considerations apply when peremptory norms are at issue. The conclusion is based on the necessary implication of article 64 of the vclt. According to this provision, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and must be terminated.121 Thus, treaties must be interpreted consistently with jus cogens norms that exist at the moment of their application.122 Interestingly, the icj first applied the principle of contemporaneity to address an issue involving a jus cogens principle. The Court did not characterise

117 Draft Conclusion 17(1) of the Draft Conclusions on Peremptory Norms (above note 44): “Peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest”. 118 Costelloe (above note 13), at 87. 119 For a detailed account of this evolution, see Fragmentation Report (above note 42), at para. 475. 120 Id., at para. 478. See Giovanni Distefano “L’interprétation évolutive de la norme internationale” (2011) 115 Révue Générale de Droit International Public 373, at 373 et seq. 121 Article 64 of the vclt. 122 Costelloe (above note 13), at 68; Eirik Björge The Evolutionary Interpretation of Treaties (Oxford, 2014), at 161–​167.

154 Traoré it as such123 but the need to take into account the now accepted peremptory norm of self-​determination, first emerged from the Namibia advisory opinion. The opinion relates to the illegal presence of South Africa in Namibia. The Court ruled that “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of interpretation”.124 Accordingly, the interpretation of the Mandate Agreement should have considered subsequent development of international law on non-​ self-​governing territories, as enshrined in the UN Charter, that made the principle of self-​determination applicable to all of these territories.125 The icj confirmed this approach in the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 case (the Chagos opinion).126 3.3 Illustrations The previous section provided several illustrations of jus cogens impacts on treaty interpretation. This next section provides a detailed account of some major cases on the application of the principle of consistent interpretation with jus cogens. The topical example before the icj of jus cogens’ interpretive virtues remains the Oil Platforms case. This case is relevant for two reasons. First, it illustrates the obligation to interpret treaties in accordance with relevant peremptory norms and epitomises the role jus cogens norms performed as relevant rules of the normative milieu. Moreover, the case expressly refers to systemic integration as an interpretative technique. As it will appear from other illustrations, in most cases, the reference to other principles or norms in the international system is implicit, or “unconscious” as the ilc Study Group on fragmentation pointed out.127 The Oil Platforms case involved the interpretation of the 1955 Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States in relation to the peremptory prohibition of the use of force in international law.128 Pursuant to its Article xx(1)(d), the treaty shall not preclude, 123 The jus cogens nature of the principle of self-​determination is well accepted. See Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (jus Cogens) (A/​c n.4/​727) (2019), at 48. 124 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, p. 16, at para. 53. 125 Id., at para. 52-​53. See also Orakhelashvili (above note 12), at 169. 126 See next section below. 127 See the quote above note 105. 128 On the peremptoriness of the prohibition of the use of force (especially aggression), see Fourth Tladi Report on jus cogens (above note 123), at 62–​68.

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among others, the application of measures “necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential interests”. According to the United States, based on this provision, the scope of the treaty does not cover measures such as the use of military force.129 This argument was refuted by the Court as follows: Moreover, under the general rules of treaty interpretation, as reflected in the 1969 Vienna Convention on the Law of Treaties, interpretation must take into account “any relevant rules of international law applicable in the relations between the parties” (Article 31, paragraph 3(c)). The Court cannot accept that Article XX, paragraph 1(d), of the 1955 Treaty was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for breach of the Treaty, in relation to an unlawful use of force. The application of the relevant rules of international law relating to this question thus forms an integral part of the task of interpretation entrusted to the Court by Article XXI, paragraph 2, of the 1955 Treaty.130 Iran’s contention, in this case, captures with clarity the very nature of the legal effect of jus cogens on treaty interpretation. Iran explained that the rigor of Article 53 of vclt, which declares void as a whole any treaty in conflict with a norm of jus cogens, “must in turn generate a stringent principle of interpretation, so that any provision of a treaty is to be interpreted, if at all possible, so as not to conflict with such a rule”.131 Another interesting illustration of the impact of peremptory norms in the interpretive process of international agreements can be found in the recent Advisory Opinion on the Chagos on the right to self-​determination.132 Some 129 Indeed, the United States Navy had already destroyed three Iranian oil platforms in the Persian Gulf allegedly because Iran, by it conduct during the Iran/​Iraq war, had encroached neutral commercial shipping. The Court’s jurisdiction was limited to disputes arising as to the interpretation or application of the Treaty. Hence the US argument strived to exclude its use of force against Iran from the scope of the treaty. See Oil Platforms (Islamic Republic of Iran v. United States of America) (above note 113), at paras. 41 et seq. 130 Id., at para. 41. 131 See Id., Reply and Defence to Counter-​Claim submitted by the Islamic Republic of Iran, 10 March 1999, at 164–​165. 132 Legal consequences of the separation of the Chagos archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, 95.

156 Traoré clarifications are in order here. First, the Court did not explicitly attest the peremptory character of the right to self-​determination in its opinion. Adopting a rather self-​restraint approach echoing some Barcelona Traction anxieties,133 the Court describes the right as “fundamental” and giving rise to erga omnes obligations.134 Second, various legal instruments formed the applicable law in this case. One of them was the Lancaster House Agreement of 23 September 1965 which had marked the temporary detachment of the Chagos Archipelago from the territory of Mauritius.135 True, the Court ruled that this was not an international agreement. But what is of interest in the Court reasoning, as far as jus cogens and treaty interpretation are concerned, lies in this very statement denying the validity of the agreement. This conclusion derives from the Court’s interpretation of the agreement in question. Indeed, the branding or label of treaty, in some instances, only depends upon interpretation.136 According to the Court: In the Court’s view, it is not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter. The Court is of the view that heightened scrutiny should be given to the issue of consent in a situation where a part of a non-​self-​governing territory is separated to create a new colony. Having reviewed the circumstances in which the Council of Ministers of the colony of Mauritius agreed in principle to the detachment of the Chagos Archipelago on the basis of the Lancaster House agreement, the Court considers that this detachment was not based on the free and genuine expression of the will of the people concerned.137

133 See the criticism of the Court self-​restraint by Judge Cançado. Id., Separate opinion of Judge Cançado Trindade, at para. 169, “It appears as if the Court remains (in 2019) haunted by the Barcelona Traction ghost of 1970 (beholding only obligations erga omnes, without jus cogens)”. 134 Id., at para. 180. 135 Id., at para. 171. 136 See Mathias Forteau “The Role of the international Rules of Interpretation for the Determination of Direct Effect of International Agreements” in Helmut Philipp Aust and Georg Nolte (eds.) The Interpretation of International Law by Domestics Courts. Uniformity, Diversity, Convergence (Oxford, 2016), at 98. See also, Duncan B. Hollis “The Existential Function of Interpretation in International Law” in Andrea Bianchi, Daniel Peat, and Matthew Windsor (eds.) (note 83 above) at 78. 137 Legal consequences of the separation of the Chagos archipelago from Mauritius in 1965 (above note 133), at para. 172.

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It is apparent in this analysis that the choice made by the Court to deprive the agreement of any validity is informed by the principle of self-​determination. Another interesting illustration concerning the same principle is the interpretation of the Fisheries Partnership Agreement between the European Community and the Kingdom of Morocco of 2006 before EU Courts referred to above. Although this is an agreement between a state and an international organization the same interpretation rules apply.138 As pointed out above, in this case, one of the contentious issues was the territorial scope of the agreement. The Grand Chamber of the European Court of Justice stated that any interpretation of the agreement that broadens its scope to encompass the waters of Western Sahara would amount to a violation of the right to self-​ determination of the peoples of Western Sahara. Departing from the radical solution –​that is annulment –​adopted by the eighth chamber,139 the Grand Chamber decided to choose the interpretation that is more in line with the principle of self-​determination. According to the Chamber, “the words ‘territory of the Kingdom of Morocco’ set out in Article 94 of the Association Agreement cannot be interpreted in such a way that Western Sahara is included within the territorial scope of that agreement”.140 Consistent interpretation with jus cogens has also been abundantly applied in state practice, especially in the interpretation of extradition treaties in relation with the potential violation of the prohibition of torture,141 the non-​ refoulement principle. There is a large consensus, both at the national and international level, that States should refrain from complying with extradition requests if the extradition will result in a violation of the prohibition of torture or other basic human rights.142 By way of conclusion of this section, it is worth noting that the requirement for systemic integration of jus cogens norms when interpreting a treaty does not

138 See Articles 31-​33 of the 1986 Vienna Convention on the Law of Treaties Between States and International Organisations or Between International organisations. 139 Front populaire pour la libération de la saguia-​el-​hamra et du rio de oro (Front Polisario) v. Council of the European Union (above note 98), at para. 247. 140 Council of the European Union v. Front populaire pour la libération de la saguia-​el-​hamra et du rio de oro (Front Polisario) (above note 115), at para 92; Western Sahara Campaign UK v Commissioners for Her Majesty’s Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs, Judgment of the Grand Chamber of the European Court of Justice, 27 February 2018, at para. 63. 141 On the peremptory character of the prohibition of torture, see Furundžija (above note 53). 142 Orakhelashvili (above note 12), at 169 et seq.; Harmen van der Wilt “On the Hierarchy between Extradition and Human Rights” in Erika De Wet and Jure Vidmar (above note 21), at 148–​175.

158 Traoré equate to replacing the treaty under interpretation by the relevant jus cogens norms. Rather, the latter should shed a steady light throughout the entire process conducted according to the general rule of treaty interpretation.143 4

Peremptory Norms and the Interpretation of Other International Rules and Acts

This section discusses whether and how peremptory norms affect the interpretation of other international rules and acts, in particular rules of customary international law, resolutions of the UN Security Council and unilateral acts of States. It is argued that, as with treaties, all these acts must be interpreted consistently with jus cogens norms. 4.1 Customary International Law In assessing the applicability of the principle of consistent interpretation of rules of customary international law with jus cogens, it is necessary to address two main preliminary issues. The interpretability of customary international law and the hierarchical relation between custom and jus cogens. 4.1.1 The Interpretability of Customary International Law Although there is no doubt that treaties are subject to interpretation, the nature of customary international law rules casts some doubt as to whether they can be interpreted. Indeed, most of the time, jurists associate the concept of interpretation only with legal acts and not “legal facts”. Before emerging as a rule, custom is rather a factual social process embedded in practice enhanced by opinio juris. Hence, the concept of custom tends to be instinctively associated with facts –​calling for legal characterisation or subsumption –​rather than law which only should allegedly be subjected to ­interpretation. Moreover, because customary international law belongs to the category of “unwritten” law, it is legitimate to question its interpretability. The argument goes that, the relevant legal issue around customary international law is identification, not interpretation. For this reason, the issue of the interpretation of customary rules has not received much attention.144

1 43 Costelloe (above note 13), at 90. 144 See however, Panos Merkouris “Interpreting the Customary Rules on Interpretation” (2017) 19 International Community Law Review 126, at 126–​155. See also, Kolb (above note 25), at 442 et seq. See also a recent article by Orfeas Chasapis Tassinis “Customary

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Based on the above arguments, some authors have simply denied such a possibility.145 However, while acknowledging the complexity of the process of identification of customary international law,146 the idea that custom is not interpretable should be rejected. Firstly, despite its processual nature, customary international law comes into life in the form of rules. Although the unwritten character refers to the process, the legal ascertainment is achieved through a genuine rule. These rules are expressed by language (words) and textual support, which Kolb has rightly called “vêtement verbal”.147 Thus, customary international rules exist in the same formal expression as any other rule and, therefore, fall under the ambit of interpretation. Secondly, after its first identification, each and every other application of a rule of customary international will necessarily imply an interpretive process. Many rules of customary international law are codified in different international instruments and are frequently interpreted as such.148 Contrary to what is sometimes asserted, the process of interpretation does not start only when a customary rule is identified.149 The first formulation itself implicates an interpretive assessment. Although jurists tend to formally separate the identification of law and its interpretation, there is no such clear cut in practice. The determination of the content of a rule, for example its scope, is an interpretive exercise. But this pertains, at the same time, to the identification of the rule through the clarification of its scope. Therefore,

145

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1 47 148 149

International Law: Interpretation from Beginning to End” (2020) 31 European Journal of International Law 235–​267. See for instance, Maarten Bos A Methodology of International Law (Asser/​Elsevier, 1984), at 109; Rudolf Bernhardt “Interpretation in International Law” in Rudolf Bernhardt and Rudolf L. Bindschedler (eds.) Encyclopedia of Public International Law (North-​ Holland, 1992) vol.ii, at 1417; Tullio Treves “Customary International Law” in Max Plank Encyclopedia of Public International Law (Oxford Public International Law, 2006), at para. 2. More generally, on some restrictive views on the possible “objects” of interpretation, Paul Amselek “L’Interprétation à Tort et à Travers” in Paul Amselek (ed.) Interprétation et droit (Bruylant, 1995), at 11 et seq.; Aharon Barak Purposive Interpretation in Law (Princeton, 2005), at 61–​82. See Treves (above note 145), at 3, noting that the preliminary question of existence of customary rules is more complex than that of the existence of other rules such as treaties rules. On the complexity of the process of identification of customary international law, see Second Report of the Special Rapporteur (Michael Wood) on the Identification of Customary International Law (A/​c n.4/​672) (2014). Kolb (above note 25), at 443. See Merkouris (above note 144) who points that another good illustration is the daily interpretation of rules of interpretation which are considered as customary in nature. Merkouris, in his article (above note 144), seems to argue that the interpretation starts only after the identification of the customary rule.

160 Traoré the intellectual operation leading to the identification of the rule is influenced by the meaning and scope ascribed to this rule by the legal operator. This is precisely an interpretive act.150 While this is true for any kind of rule, it is more relevant concerning customary international rules, the identification of which takes place within a more complex operation. Even after the rule is identified, the dynamic nature of the customary process makes it impossible to separate the interpretation and identification of custom. 4.1.2 Hierarchy between Peremptory Rules and Customary Rules The second issue around the role of consistent interpretation of customary international law with jus cogens relates to hierarchy. As demonstrated below, the interpretive principle of consistent interpretation with jus cogens norms rests on the superiority of the latter over other international norms. For the principle to be applicable to the interpretation of customary rules of international law, it should be established that customary rules are hierarchically inferior to peremptory norms. Are jus cogens norms superior to customary international law rules? The intuitive yes should not evade the seriousness of the problem. Indeed, the relationship between customary international rules and jus cogens is, at best, complex.151 It is commonly accepted that the latter naturally emerges from the former. It is hard to imagine a peremptory norm that does not have a customary nature.152 As demonstrated by Tladi, this position is strongly supported by practice.153 However, it remains unclear whether jus cogens can be generated from treaty and other sources of international law.154 Hypothetically, a treaty provision can express a jus cogens norm and meet the criteria of “generality” enshrined in Article 53 of the vclt. The concept of peremptory norm –​a norm accepted and recognized by the international community as a whole –​seems to emerge logically from the customary source.155 Even when practice acknowledges the 1 50 Corten (above note 91), at 212–​213. See generally, Tassinis (above note 144). 151 Martti Koskenniemi From Apology to Utopia: The Structure of International Legal Argument (Cambridge, 2007), at 322. See also Second Tladi Report (above note 4), at paras 40–​59. 152 Costelloe (above note 13), at 243. 153 Second Tladi Report (above note 4), at paras. 40-​59. 154 See Robert Kolb “Nullité, Inapplicabilité ou Inexistence d’une Norme Coutumière Contraire au Jus Cogens Universel?” (2013) 117 Revue Générale de Droit international Public 281, at 281–​298. See also Robert Kolb ”Formal Source of Ius Cogens in Public International Law” (1998) 53 Zeitschrift für öffentliches Recht 69, at 94. 155 See Hans Kelsen Principles of International Law, (2nd Edition., Rinehart & Winston, 1967), at 483; Grigory Tunkin Theory of International Law (Translated with an Introduction by William E. Butler) (Harvard University Press, 1974), at 158 et seq.; Chaumont (above note 95), at 370.

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existence of jus cogens in treaty provision, there seems to be a need to always reaffirm its customary basis.156 Given that jus cogens norms are customary international law, the question remains how to introduce hierarchy between norms flowing from the same source. The only explanation of the hierarchical superiority of peremptory norms over other rules of customary international law lies in the fact that jus cogens differs from “ordinary” custom. A rule of customary international law may be elevated to the status of peremptory norms.157 The icty, in Furundžija, made clear that jus cogens norms are those that enjoy a higher rank in the hierarchy of international law than “ordinary” customary rules.158 In that regard, one can easily affirm that any contradiction between ordinary customary law and peremptory norms will be resolved in favour of the latter, given its superiority. Nonetheless, the possibility of conflict between customary law and a particular peremptory norm is sometimes contested.159 It is contended that the factual process leading to the formation of a customary rule cannot prosper in the presence of a contrary jus cogens norms.160 The contention seems to be practically sound since it is hard to figure out the possibility of conflict between two rules of general international law.161 For instance, it is hard to imagine the development of a customary rule legitimating aggression, slavery, genocide, or torture. Yet, the emergence of a practice with a contradictory potential to a peremptory norm cannot be swept aside.162 While this possibility appears more clearly concerning regional or local customary law with the potential to offend against a peremptory norm, it also does exist regarding general customary law. As stressed by Tladi, the unlikelihood of a conflict cannot preclude the possibility of its contemplation.163 As practice has shown with treaty law, it is highly unlikely that States would conclude treaties that are in conflict with jus cogens. But this does not deprive the existing invalidity regime under the vclt of its interest.164 1 56 157 158 159 1 60 161 1 62 163 164

Second Tladi Report (above note 4), at paras. 55 et seq. Questions Relating to the Obligation to Prosecute or Extradite (above note 40), at para. 99. Furundžija (above note 53), at para. 153. For instance, Costelloe (above note 13), at 244; Kyoji Kawasaki “A Brief Note on the Legal Effects of Jus Cogens in International Law” (2006) 34 Hitotsubashi Journal of Law and Politics 16, at 31. Kawasaki (above note 159), at 31. Tomuschat (above note 14), at 33–​34 describes the issues as “a non-​issue”. See also Costelloe (above note 13), at 244–​245. See Kolb “Nullité …” (note 154 above). See Third Tladi Report (above note 18), at para. 139. Ibid.

162 Traoré 4.1.3

Consistent Interpretation of Customary International Rules with Jus Cogens As with treaties, interpretation serves as a conflict avoidance mechanism in this situation. As Kolb indicated, rather than wanting to annihilate a customary rule with a potentially conflicting element with jus cogens, as a result of the triumphant application of the latter, it is more useful to engage in an interpretive exercise to distinguish the spheres of application of the customary rule in apparent contradiction with jus cogens.165 The need for harmonisation is particularly relevant in the case of customary law in as much as the relatively slow emergence of a practice and opinio juris openly in conflict with jus cogens is unlikely. As with treaties, jus cogens, in this case, will play in this case a deterrent effect.166 Moreover, the identification of customary international law, as well as the determination of its content gives more power and flexibility to the interpreter. As Costelloe pointed out, … these rules of general international law [meaning customary rules], including peremptory norms, enjoy nowhere near the specificity of a detailed and technical treaty provision, for example. The greater the level of detail, the greater the scope for conflict.167 The role performed by interpretation has been demonstrated with the alleged conflict between some peremptory international law and the customary rules concerning States immunities as evidenced in the abundant literature on the issue.168 In Jurisdictional Immunities, the icj has adopted the view that the two categories of norms operate on two different levels and that, therefore, no conflict exists between them.169 Interpretation has performed a critical role regarding this contentious issue. The conclusion reached by the Court conceals firm interpretive preferences. Interestingly, conflict avoidance techniques used in these cases reveal the holistic character of interpretation as not only the competing rule is construed in a certain way, but also the norm of jus cogens itself. Knowing that the existence of a conflict will depend, after all, on 1 65 Kolb “Nullité …”, (above note 154) at 293. 166 Jure Vidmar “Norm Conflicts and Hierarchy in International Law: Towards a Vertical International Legal System?” in Erika de Wet and Jure Vidmar (above note 21), at 29. 167 Costelloe (above note 13), at 245. 168 For an account see Third Tladi Report (above note 18), at paras. 121-​129. See also, Costelloe (above note 13), at 242–​285; Orakhelashvili (above note 12), at 322–​359; Kolb (above note 7), at 87 et seq.; Philippa Webb “Human Rights and the Immunities of State Officials” in In Erika de Wet and J. Vidmar (above note 21), at 114 et seq. 169 Jurisdictional Immunities of the State case (above note 73).

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the scope attributed to the peremptory norm, the Court has rather construed the latter very restrictively. According to the Court, jus cogens does not wave customary rules on State immunities.170 Conflict avoidance here is only possible by narrowing the scope of the peremptory norm. Despite the criticism that it has attracted, this position seems, however, to be more in line with States practice.171 Another illustration of the role of interpretation in this matter lies in the current debates over the use of force in international law.172 The opposition between proponents of an extensive approach to the use of force on the one hand, and restrictive approach on the other hand reveals the importance of a methodological debate on the interpretation of the rules at stake.173 If at all possible,174 the modification of a peremptory norm through an emerging customary rule should be rigorously assessed.175 Modification of peremptory norms, by emerging practices among States, cannot be lightly assumed. Any claim of that importance must be attested as accepted by the international community as a whole –​and not just some States –​through established practice and opinio juris.176 If jus cogens norms can only be modified by norms of the same character, the assessment of such a modification must be stricter than the assessment of a change in an ordinary customary law.177 Consistent 1 70 Id., at paras. 92-​97. 171 For an account of this controversial issue, Third Tladi Report (above note 18), at paras. 212–​232. See in this collection Kobina Egyir Daniel “A Jus Cogens Human Rights Exception to Head of State Immunity: Fact, Fiction or Wishful Thinking?” (Chapter 26). 172 On the use of force in this volume, see Olivier Corten and Vaios Koutroulis “The Jus Cogens Status of the Prohibition of the Use of Force: What is its Scope and Does it Matter?” (Chapter 22). See also the three contributions in Christian Tams, Mary Ellen O’Connell The Max Planck Trialogues on the Law of War and Peace (Volume 1): Self-​Defence against Non-​State Actors (Cambridge, 2019). 173 See Olivier Corten “The Controversies over the Customary Prohibition on the Use of Force: A Methodological Debate” (2006) 16 European Journal of International Law 803, at 803–​832. See also, Olivier Corten Le Droit Contre la Guerre (2nd Edition, Pedone, 2014), at 9 et seq. 174 See, for instance, Georges Abi-​Saab “The Concept of International Crime and Its Place in Contemporary International Law” in Jospeh Weiler, Antonio Cassese and Marina Spinedi (eds.) International Crimes of States. A. Critical Analysis of Article 19 of ilc’s Draft Articles on State responsibility (Gruyter, 1989), at 146, who has argued that the peremptory norm regarding the prohibition of the use of force in international law cannot fall into desuetude. 175 See in this volume Mehrdad Payandeh “Modification of Peremptory Norms of General International Law” (Chapter 5). 176 Corten Le Droit Contre la Guerre (above note 173), at 37–​59. 177 According to Article 53, a peremptory norm can be modified only by a subsequent norm of general international law having the same character. However, See Kolb “Nullité …”

164 Traoré interpretation with jus cogens in such cases should approach the scope of the rule at stake more restrictively.178 United Nations Security Council Resolutions Legal Basis and Rationale of the Principle of Consistent Interpretation of scr s with Jus Cogens As recently acknowledged by the UK Supreme Court, UN Security Council resolutions have become “one of the cornerstones of the international legal order”.179 This is due to the specific legal force attached to these resolutions.180 These international instruments call for implementation at the international level as well as at the national level.181 As with any other legal norms, their application takes place in an interpretive process. Although, bearing some undisputable particularities, as is the case with different kind of treaties –​rules governing the interpretation of Security Council resolutions remain similar to those codified by the vclt for the interpretation of treaties.182 Significantly, this implies an application by analogy of the systemic integration principle provided for by Article 31(3)(c). Security Council resolutions must, thus, be constructed in light of other rules of international law.183 However, as it has been shown with 4.2 4.2.1

178

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180 181

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(above note 154), at 286, takes the view that an ordinary customary rule can replace a peremptory norm. While acceptance of the content of the norm in state practice and opinio juris is required for the creation of ordinary customary norms, acceptance of the special character of jus cogens implies a higher importance of peremptory norms. See de Wet and Vidmar (above note 21 above), at 23 et seq. Serdar Mohammed et Abd Ali Hameed, Judgement of the Supreme Court of the United Kingdom, 17 January 2017, at para. 60. For UN Security Council resolutions in this volume see Daniel Costelloe “Peremptory Norms and Resolutions of the United Nations Security Council” (Chapter 17). Normally, resolutions of international organisations directed to their members, and not for purely institutional purposes, are not binding. The UN Charter introduced an important exception to this principle in favour of the United Nations Security Council. Generally, Mehrdad Payendeh “The United Nations Charter and German Legal Order” in Erika de Wet, Holger Hestermeyer and Rüdiger Wolfrum (eds.) The Implementation of International Law in Germany and South Africa (pulp, 2015), at 68–​79 and in the same volume, Dire Tladi “The United Nations Charter and the South African Legal Order” at 96–​ 108. Vera Gowlland-​Debbas (eds.) National Implementation of United Nations Sanctions: A Comparative Study (Martinus Nijhoff, 2004). The issue of interpretation of resolutions of the UN Security Council had long been understudied. See however, Michael Wood, “The Interpretation of Security Council Resolutions”, (1998) Max Planck Yearbook of United Nations Law, 73-​95. For a recent work, see Traoré (above note 31). See Traoré (above note 31) at 403; Erika De Wet “From Kadi to Nada: Judicial Techniques Favoring Human Rights Over United Nations Security Council Sanctions” (2013) 12 Chinese Journal of International Law 787, at 792, 806.

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treaties, jus cogens norms entail a particular consequence in this process. The interpretation of Security Council resolutions must not only take peremptory norms “into account”, it must be consistent with them.184 This rule has been formulated by the Special Rapporteur on jus cogens as follows: [T]‌o the extent possible, resolutions of international organizations, including those of the Security Council of the United Nations, must be interpreted in a manner consistent with peremptory norms of general international law (jus cogens).185 The rationale behind this requirement rests on the hierarchical superiority of peremptory norms over the Security Council resolutions. Indeed, despite the authoritarian image that it is often associated with the Security Council, as rightly pointed out by the icty, it is not “legibus solutus (unbound by law)”.186 According to Article 24 of the UN Charter, in discharging its duties the Security Council is to act “in accordance with the Purposes and Principles of the United Nations”. In addition to this constitutional limit of its powers, the Security Council is also bound by jus cogens. The two sets of limitations are not mutually exclusive. Indeed, the UN Charter has codified the core rules of customary international law in such a way that its principles and purposes reflect jus cogens norms.187 In this sense, some of the recognized peremptory norms such as the prohibition on the use of force or the right to self-​determination are expressly provided for by the Charter. Accordingly, the Charter protects fundamental values underpinned in the very concept of jus cogens.188 However, this position has been challenged on several grounds. de Wet, for instance, wonders whether such an approach would result in an over extension of the role and purpose of the notion of jus cogens.189 More radically, it

1 84 Traoré (above note 31), at 407 and 421–​432. 185 Third Tladi Report (above note 18), at para. 169. 186 See Prosecutor v. Dusco Tadić a/​k/​a “dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Judgement of the International Criminal Tribunal for the Former Yugoslavia, (it-​94-​1), 2 October 1995, at para. 28. 187 See for example, Dupuy (above note 6), at 242. 188 Alfred Verdross “Jus Dispositivum and Jus Cogens in International Law” (1966) 60 American Journal of International Law 55, at 60 ; Orakhelashvili (above note 93), at 67; Evelyne Lagrange “Le Conseil de Sécurité Peut-​il Violer le Droit International” (2004) 37 Revue Belge de Droit International 568, at 587; Erika De Wet The Chapter vii Powers of the United Nations Security Council (Hart, 2004), at 191 et seq. See also Dire Tladi “Reflections on the Rule of Law in International Law: The Security Council, International Law and the Limits of Power” (2006) 31 South African Yearbook of International Law 231. 189 de Wet (above note 188), at 187.

166 Traoré has been suggested that the Security Council is not bound by jus cogens.190 The concept of jus cogens, as embedded in the vclt, so the argument goes, is binding only on States in a treaty context. In addition, the vclt cannot apply to the UN Charter as a treaty, based on the non-​retroactivity principle.191 Other arguments relate to the need to give the Council free reign to carry out its primary responsibility for the maintenance of international peace and security.192 It is generally accepted that the Council enjoys a vast discretion to limit international law in the interest of international peace and security.193 It has even been said that any means are admissible for the maintenance of international peace and security.194 These arguments are mainly based on the importance of Article 103 of the UN Charter which establishes a priority –​relative hierarchy –​of the Charter obligations and the scr s over any other international agreement.195 These objections are not convincing either. The first can be easily dismissed considering that the prohibition –​enshrined in Article 53 of the vclt –​to 190 Gabriël H. Oosthuizen “Playing the Devil’s Advocate: The United Nations Security Council is Unbound by Law” (1999) 12 Leiden Journal of International Law 549, at 559. For an account of these arguments, see Lagrange (above note 188), at 582 et seq. 191 Article 4 of the vclt. 192 As it is well known, Kelsen considered that the Security Council exists to preserve peace and not to enforce law. See Hans Kelsen The Law of the United Nations (Steven and Son, 1950), at 294. See also Oosthuizen (above note 190). For an exposition of this argument, see Orakhelashvili (above note 93), at 63–​64; Robert Kolb, L’Article 103 de la Charte des Nations Unies (Martinus Nijhoff, 2014), at 288. 193 This view has been endorsed for instance by the House of Lords in Al Jedda before UK courts. House of Lords, R (on the application of Al-​Jedda) v Secretary of State for Defence, Judgement of the House of Lords of the United Kingdom, 12 December 2007, 58, see Lord Bingham at para. 5 et seq. It is also a long-​standing view reflected in the literature. See among others Lazare Kopelmanas “L’Évolution de l’O.N.U”. (1948) 13 Politique Etrangère 445; Alfred Verdross “Idées Directrices de l’Organisation des Nations Unies” (1953) 83 Collected Courses of the Hague Academy of International 1, at 10.; Erika De Wet “The Role of Human Rights in Limiting the Enforcement Power of the Security Council: A Principled View” in Erika de Wet and Andre Nollkaemper (eds.) Review of the Security Council by Member States (Intersentia, 2003), at 7 et seq.; Dire Tladi and Gillian Taylor “On the Al Qaida/​Taliban Sanctions Regime: Due Process and Sun Sets” (2011) 10 Chinese Journal of International Law 771. 194 René Dégni-​Ségui “Article 24” in Jean-​Pierre Cot and Alain Pellet (eds.) La Charte des Nations Unies: Commentaire articles par article (2nd Edition, Economica Paris, 1991), at 463. 195 Article 103 reads as follow: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.

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conclude treaties in contradiction with jus cogens, is of a customary character and was already part of the positive law at the time of the adoption of the UN Charter. It therefore applies to the Charter and the secondary law flowing from it.196 The second argument is obviously a misconception of the Council’s powers, which have been clearly limited by the Charter itself. More generally, as made clear by the icj, international organisations are subjects of international law and, as such, there are bound, in principle, by obligations deriving from general rules of international law.197 Besides the fact that some peremptory norms overlap with UN principles and purposes –​and are therefore binding on the Security Council under on Article 24 of the Charter –​the rationale of the bindingness of jus cogens on the Security Council rests on the very nature and ultimate potency of peremptory norms. As a tool for the protection of public order and community interest, it to make sense for the concept of jus cogens to apply to all subjects of international law and their legal acts.198 In effect, what is unacceptable to States acting together when concluding a treaty cannot become acceptable to an international organisation created by them.199 As famously stated by Judge Lauterpacht, The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot –​as a matter of simple hierarchy of norms –​extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite

196 Very interestingly, this line of reasoning was adopted in Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission, Judgment of the Court of First Instance of the European Communities, Case T 306/​01 (Second Chamber, extended composition), 21 September 2005, at para. 279. 197 Interpretation of the Agreements of 25 March 1951 between the who and Egypt, Advisory Opinion, icj Reports 1980, p. 73, at para. 37. Nicolas Angelet “International Law Limits to the Security Council” in Vera Gowlland-​Debbas (ed.) UN Sanctions and International Law (Brill, 2001), at 75. 198 On the universal binding character of jus cogens see First Tladi Report (above note 6), at 39 et seq. (with abundant references). 199 Mutandis mutatis see the argument of transitivity of human rights obligations to the Security Council, Frédéric Mégret and Florian Hoffmann “The UN as a Human Rights Violator? Some Reflections on the United Nations Changing Human Rights Responsibilities” (2003) 25 Human Rights Quarterly 314, at 318; de Wet (above note 187), at 200 et seq.

168 Traoré proposition thus –​that a Security Council resolution may even require participation in genocide –​for its unacceptability to be apparent.200 It is apparent that the Council is bound by peremptory norms. For that reason, its resolutions are hierarchically inferior vis-​à-​vis jus cogens norms. It is however noteworthy that, as with treaties, the Security Council is unlikely to adopt resolutions that are, on their face, deliberately in contradiction with jus cogens. However, “the possibility that a Security Council resolution might inadvertently or in an unforeseen manner led to such a situation cannot be excluded”.201 However, there is no clarity concerning the sanction of such illegality. Should a resolution contrary to jus cogens be deemed void like in the case of treaties? The analogy is quite warranted but as it is clear, even with treaties, nullity is an extremely rare solution in practice. Moreover, in the case of resolutions, there is no review mechanism. Most of the time, the interpreter will rather invalidate only the conflicting effect deriving from the resolution. In practice, especially in regional and domestic systems, this technique has turned into a disguised review of the disputed resolutions. This is what some authors have termed “national level repudiation” of the Security Council decisions.202 The foregoing pinpoints the harmonizing role performed by the principle of consistent interpretation with jus cogens. In most cases, conflict with a peremptory norm will only be apparent. In such cases, interpretation must strive to confer to the resolution, only the scope and the effects that are in accordance with the norm of jus cogens. When a meaning contrary to a peremptory norm is given to the resolution leading to a genuine conflict, the interpreters tend to invalidate such a meaning. This is in line with the reasoning adopted by the Court of First Instance of the European Community in Kadi and Al Barakaat v. Council and Commission.203 At any rate, the requirement 200 Separate Opinion of Judge ad hoc Lauterpacht in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro), Order of 13 September 1993, icj Reports 1993, p. 325, at para. 100. 201 Id. at para. 102. For a detailed account on the ways in which Security Council resolutions can potentially offend jus cogens, see Orakhelashvili (above note 12), at 440–​456. 202 Dire Tladi and Gillian Taylor (above note 193), at 771; See also Traoré (above note 31), at 384 et seq. See generally, Antonios Tzanakopoulos Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford, 2011). 203 See Ahmed Ali Yusuf and Al Barakaat International Foundation v Council of the European Union and Commission (above note 196), at para. 277–​283.: “International law thus permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable that may be, they would bind neither the Member States of the United Nations nor, in consequence, the

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of consistent interpretation of scr s with jus cogens is recognized in practice as some have already shown.204 However, one aspect of this practice, which concerns the interpretation of scr s impacting individual rights constitutes an illuminating illustration of this interpretative technique. 4.2.2 Illustrations with Human Rights According to Bianchi, “human rights peremptory norms have in some sense performed as ‘constitutional’ parameters against which the legality of Security Council anti-​terror measures has been tested”.205 Indeed, the Security Council has adopted countless resolutions that affect the rights of individuals. While the emphasis has often been placed on the so-​called counterterrorism resolutions, human rights impacting resolutions can be traced back to the early moments of Security Council action.206 Be that as it may, practice has clearly established an obligation to interpret the resolutions of the Security Council in accordance with human rights.207 This is an important development especially with regard to the obligation for UN members to comply with the decisions of the Security Council under Article 25 of the UN Charter, and due to the specific effect of Article 103 of the UN Charter.208 Indeed, if an “obligation” deriving from a Security Council resolution contradicts an obligation stemming from a human rights treaty, the former should prevail pursuant to Article 103 of the UN Charter. In Al-​Jedda, for instance, the contentious issue was whether the authorization given by the scr 1546(2004) to the UK to take “all necessary measures to contribute to the maintenance of security and stability in Iraq”, could warrant the internment of the applicant in violation of its right to liberty and security. The Court decided that the resolution must be given a meaning in

204 2 05 206 207 208

Community”. The Grand Chamber, however, adopted a cautious approach, avoiding the issue around jus cogens. See in the same case, Judgement of the Court (Grand Chamber), 3 September 2008 at para. 329. According to the Grand Chamber in that decision, “It follows that there is no longer any need to examine the heads of claim directed against that part of the judgments under appeal relating to review of the contested regulation in the light of the rules of international law falling within the ambit of jus cogens and that it is, therefore, no longer necessary to examine the United Kingdom’s cross‐appeal on this point either”. Third Tladi Report on jus cogens (above note 18), at para. 158. See also, Orakhelashvili (above note 12), at 425. Bianchi (above note 11), at 499. Traoré (above note 31), at 609 et seq. Id., at 647 et seq. See Article 103 of the UN Charter. Article 25 reads as follows: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

170 Traoré accordance with the individual right. The interpretive technique used by the Court is based on the assumption that the Security Council does not intend to impose any obligation on member States to breach fundamental principles of human rights.209 However, according to the Court, such a presumption is rebuttable especially in cases where clear and explicit language is used by the Security Council to impose on States to take particular measures that conflict with their obligations under international human rights law.210 Yet, the refutability of this presumption does not apply to jus cogens norms. True, the case law of the ECtHR, which has the most developed practice on this issue so far, has been cautious regarding the use of jus cogens. More generally perhaps, the concept should be used with great subtleties in the field of human rights as it has the potential to defeat the inseparability of human rights and undermine most of them.211 Yet, the idea that some human rights bear a particular importance can hardly be denied.212 A close scrutiny of judicial practice reveals that when “fundamental human rights” are at stake, the directive to choose the interpretation which is most in harmony with human rights turns into an obligation. Here lies the reason why despite its proclamation, the ECtHR has refrained to reverse the aforementioned presumption in practice.213 In Nada, the ECtHR acknowledged that the interpretive presumption in favour of full respect for human rights should be reversed due to the explicit language used by the Council in its resolution 1267 (1999). However, rather counter-​intuitively regarding its own conclusion –​the Court finds that the possibility of deciding how the relevant Security Council resolutions were to be implemented in the domestic legal order of Switzerland should have 209 Case of Al-​Jedda v. The United Kingdom, Judgement of the Grand Chamber of the (Application no. 27021/​08), European Court of Human Rights,7 July 2011, at para. 102. See also, Traoré (above note 31), at 648 et seq.; Marko Milanovic “Al-​Seini and Al-​ Jedda in Strasbourg” (2012) 23 European Journal of International Law 121, at 137.For an early formulation of the presumption, see Nabil Sayadi and Patricia Vinck v. Belgium, Human Rights Committee, individual opinion of Committee member Sir Nigel Rodley (concurring), Communication No. 1472/​2006, (ccpr/​C/​94/​D/​1472/​200622) (October 2008). 210 Case of Al-​Jedda (above note 209), at para. 102. See also, Traoré (above note 31), at 670 et seq. 211 Dupuy and Kerbrat (above note 14), at 276; Ludovic Hennebel and Hélène Tigroudja, Traité de Droit International des Droits de l’Homme (Pedone, 2016), at 135 et seq. However, it has been argued that all human rights are of peremptory character. See for instance, Orakhelashvili (above note 95), at 66, referring also to Judge Tanaka. 212 This specific importance has been given by States themselves to some human rights. See for instance Common Article 3 to the 1949 Geneva Conventions, or the non-​derogable rights under Article 4 of the 1966 International Covenant on Civil and Political Rights. 213 Traoré (above note 31), at 673.

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allowed some alleviation of the sanctions regime in order to avoid interference with the applicant’s private and family life.214 The interpretive presumption in favour of the protection of fundamental rights seems to be irrebuttable, even where it would amount to a “distortion of the text of a unsc decision”215 and has been endorsed in other cases.216 Unlike the solution arrived at before some domestic courts217 where Article 103 was strictly applied, the interpretive technique favoured by the ECtHR precisely avoids the conflict referred to by this provision. In Al-​Jedda, where the House of Lords had identified a conflict between Article 5(1) of the European Convention on Human Rights and the Security Council Resolution 1546 (2004), the European Court of Human Rights considered that no such conflict existed.218 In doing so, the Court stressed the importance of the fact that the promotion and protection of human rights is one of the purposes of the United Nations that the Security Council must respect. Some of these rights are indisputably part of jus cogens norms. The interpretive technique mostly serves as a strategy to avoid conflict with States obligations deriving from the Charter of the United Nations and the drastic application of Article 103. It shows that, irrespective of the potency of this provision, jus cogens norms should always be given priority over Security Council resolutions. As indicated above, the decision of the Court of First Instance of the European Community went even further, suggesting the invalidation of resolutions inconsistent with jus cogens norms.219 4.3 Unilateral Acts 4.3.1 General It is generally accepted that, under certain conditions, unilateral conduct of States –​as opposed to a conduct directed towards the formation of

2 14 Nada v. Switzerland (above note 71), at para. 195. 215 On the reluctance to rebut the presumption in practice, see also de Wet (above note 188), at 806. 216 See Al-​Dulimi and Montana Management Inc. v. Switzerland, Judgement of the Grand Chamber of the European Court of Human Rights, (Application 5809/​08), 21 June 2016, at 113 et seq. 217 The famous illustration being the case of Al-​Jedda before the House of Lords. The latter referred to the overriding character that Article 103 attributes to Charter obligations in the event of a conflict with obligations under any other international agreement. R (on the application of Al-​Jedda) v Secretary of State for Defence (above note 192), at para. 37. 218 Al-​Jedda v UK (above note 209), at para.109. 219 See above note 203.

172 Traoré agreements –​is capable of creating rights and obligations in international law.220 According to the Special Rapporteur on peremptory norms, [t]‌o the extent that a unilateral act is intended or purports to create rights and/​or obligations, those rights and obligations must be consistent with peremptory norms of general international law. Accordingly, a unilateral act that is in conflict with a peremptory norm of general international law (jus cogens) is invalid.221 As should be apparent, as far as their relationship with jus cogens norms is concerned, the regime of unilateral acts is analogous to the one applicable to treaties and resolutions of the Security Council. It, therefore, comes as no surprise that the principle of consistent interpretation with jus cogens equally applies to the interpretation of unilateral acts. No normative effect, which runs counter a norm of jus cogens, can be attached to a unilateral act. Interpretation performs a critical function when it comes to unilateral acts in international law.222 First, unilateral acts are not an ordinary way of law-​ making. As a matter of principle, the fact that a state can creates obligations for itself and corresponding rights for others States, through a unilateral decision, should be approached cautiously.223 There is therefore a need for uncontested evidence of the intention of the state to accept international obligations unilaterally or create international rights. The second reason lies on the diversity of unilateral acts, ranging from promise to recognition, declaration, reservation, renunciation or acquiescence, to cite but a few. These acts are intended to produce various types of effects. Hence, only a rigorous interpretive process should lead to the determination of their legal consequences. It is often suggested that the interpretation of unilateral acts is governed by different rules 220 Crawford (above note 10), at 416; Dupuy and Kerbrat (above note 14), at 384 et seq. Generally, Eric Suy “Some Unfinished New Thoughts on Unilateral Acts of States as a Source of International Law” (2001) 26 Journal for Juridical Science 1; Eric Suy Les Actes Juridiques Unilatéraux en Droit International Public (lgdj, 1962). See also Jean-​Paul Jacqué Eléments pour une Théorie de l’Acte Juridique en Droit International Public (lgdj, 1973), at 335–​345. 221 Third Tladi Report on jus cogens (above note 18), at para.149. 222 Nuclear Tests (Australia v. France), icj Reports 1974, p. 243, at para. 44. 223 Id., at para. 44. See also Armed Activities on the Territory of the Congo (above note 30), at para. 50; Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto, Draft Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, Report of the International Law Commission, Fifty-​Eighth Session, General Assembly Official Records, (A/​61/​10) (2006), see especially guiding principle 7.

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than the interpretation of treaties.224 However, such a difference is not established in practice. The general rule of treaty interpretation equally applies to unilateral acts. As with different treaties or other international acts, some specificities must be taken into account. But this does not implicate the use of different rules of interpretation.225 4.3.2 Consistent Interpretation of Unilateral Acts with Jus Cogens Unilateral acts must be interpreted in their context taking into consideration the legal milieu in which they are intended to produce their effect. As part of the legal environment, norms of jus cogens must be taken into account. Due to the peremptory character of jus cogens norms –​the fact that they prohibit any derogation –​a unilateral act cannot produce valid effect against a peremptory norm. This interpretive rule is based on the hierarchical superiority of jus cogens over unilateral acts of States. This superiority flows from logic and does not need any further explanation. As a matter of common sense, a State cannot do alone what it is prohibited to do together with other States.226 The ilc has recognized that a unilateral act that is in conflict with a peremptory norm of general international law is void.227 Moreover, Guideline 4.4.3(2) of the ilc’s 2011 Guide to Practice on Reservations to Treaties provides that “a reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law”.228 According to the Special Rapporteur on peremptory norms, “a unilateral act purporting to create rights and/​or obligations inconsistent with jus cogens amounts to a derogation and is thus not permitted”.229 However, there is no international regime regarding the review of a unilateral act incompatible with jus cogens norms. In addition to that, as with other international acts, an open conflict with jus cogens is not likely to occur.230 224 Among others, Isabelle Van Damme Treaty Interpretation and the wto Appellate Body (Oxford, 2009), at 102 et seq. 225 Third Report of the Special Rapporteur (Alain Pellet) on Reservations to Treaties (A/​c n.4/​ 491) (1998), at para 395. See also Kolb (above note 25), at 254; Orakhelashvili (above note 34), at 298; Traoré (above note 31), at 270 et seq. 226 Kolb (above note 7), at 63 who stressed that “there is no reason why the legal order should consider void an agreement to commit a genocide but not a promise to commit one”. See also, Jean-​Didier Sicault, “Du Caractère Obligatoire des Engagements Unilatéraux en Droit International Public” (1979) 83 Revue Générale de Droit International Public 633, at 663. 227 Guideline 8 of the Guiding principles (above note 223). 228 Guidelines 4.4.3 of the Guide to Practice on Reservations to Treaties, Report of the International Law Commission, Sixty-​third session, General Assembly Official Records, (A/​c n.4/​L.779)(2011). 229 Third Tladi Report (above note 18), at para. 147. 230 Costelloe (above note 13), at 176.

174 Traoré Instead of being declared null,231 the unilateral act will be rather deprived of any meaning inconsistent with jus cogens. The construction of the meaning of a unilateral act should, thus, start by assuming that the intention of its author was not to contradict any peremptory norms.232 At any rate, a contrary intention would simply be invalid. The ilc has adopted this approach with regards to reservations to treaties.233 In Armed Activities, the icj did not find any contradictory effect with jus cogens of the Rwandan reservation regarding compulsory jurisdiction under the Convention on the Prevention and Punishment of the Crime of Genocide. The Democratic Republic of Congo had argued before the Court that Rwanda’s reservation was irrelevant in the light of the evolution of the international law relating to genocide since 1948 and that this reservation is incompatible with the peremptoriness of the prohibition of genocide. However, the Court did not accept this view, and instead made the following observation: In so far as the DRC contended further that Rwanda’s reservation is in conflict with a peremptory norm of general international law, it suffices for the Court to note that no such norm presently exists requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention. Rwanda’s reservation cannot therefore, on such grounds, be regarded as lacking legal effect.234 Moreover, in its advisory opinion in Restrictions to the Death Penalty, the Inter-​ American Court of Human Rights ruled that reservations must be “interpreted by reference to relevant principles of general international law”. The Court further held that the interpretation of reservations must further take into account the treaty’s object and purpose.235 These relevant rules of international law

231 Although rare, the declaration of nullity can be made by the Security Council. For instance, in Resolution 687 (1991) the Council “[d]‌ecides that all Iraqi statements made since 2 August 1990 repudiating its foreign debt are null and void”. 232 Costelloe (above note 13), at 176. 233 Guide to reservations on treaties (above note 228), at Guideline 4.4.3(2): “A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law”. 234 Armed Activities on the Territory of the Congo (above note 30), at para. 69. See also Joint Separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma at paras. 21, 29. 235 Restrictions to the Death Penalty (Arts 4(2) and 4(4) American Convention on Human Rights) Advisory Opinion, Judgement of the Inter-​American Court of Human Rights, 8 September 1963, at para. 62.

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include undoubtedly jus cogens norms. The view that unilateral acts that are in conflict with peremptory norms should be deprived of any legal effect has also been expressed by the icj in relation to some unilateral declarations of independence. =Indeed, these declarations are not unilateral acts of States, since they are made by entities whose statehood is mostly questioned. Yet, the approach adopted by the Court is instructive. It has declared some of these declarations illegal, as they were “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)”.236 5

Concluding Remarks

Due to its decentralised nature, the international legal system cannot afford to trivialise nullity. The prominence of state sovereignty and the importance of the pacta sunt servanda principle makes it difficult and perhaps unnecessary, if not dangerous, to easily annul international acts and rules. The radical effect of the total invalidity of acts contrary to jus cogens would result in creating frictions and disharmony, where efforts should be put in ensuring harmony and to spare state sensitivities. It is, therefore, not surprising that in the overwhelming majority of cases the effort will tend to give to the acts and rules at stake, an interpretation which accords most with the peremptory norms rather than declaring the existence of a normative conflict. As indicated by the ilc Study Group on fragmentation, interpretation in international law is equally about diplomacy and must strive to avoid or mitigate conflict.237 This chapter has shown the interpretive force attached to peremptory norms. The hierarchical status of peremptory norms features the entire international system. It conditions the interpretation of all acts and rules in this legal order. Consistent interpretation of international law with peremptory norms serves the very raison d’être of these higher norms in the international legal order. It ensures not only the formal coherence of the system but also its substantial unity. Although the principle of consistent interpretation with jus cogens places emphasis on the norms competing with jus cogens norms, interpretation remains a complex process. As this chapter demonstrated, it equally implies the interpretation of the peremptory norm at stake.

236 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, icj Reports 2010, 403, at para. 81. 237 Fragmentation Report (above note 42), at para. 37.

176 Traoré

Acknowledgement

The postdoctoral fellowship during which this work has been done is funded by the Swiss national foundation for scientific research. Special thanks go to Mpho Makhafola, Trésor Makunya and Ernest Ako for reading and commenting on previous versions of this chapter. The author is also grateful to Ezéchiel Amani and Germain Dabiré for providing him with soft versions of numerous books and articles referenced in this chapter. Under lockdown, without access to libraries, to say that this was helpful is an understatement. I wish specially to thank Prof Dire Tladi, Prof Daniel Bradlow and Sir Michael Wood for their close reading of the draft of this article and their well-​advised suggestions.

Chapter 7

Aspects of the Invalidity of Treaties on Account of Conflict with Jus Cogens Gentian Zyberi 1

Introduction

Before moving on to define what amounts to jus cogens norms, Article 53 of the 1969 Vienna Convention of the Law of Treaties (vclt or Vienna Convention) provides that “[a]‌treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” Several issues arise from this formulation concerning the identification of jus cogens norms and the legal consequences arising from a conflict of legal norms. First, on its terms, Article 53 seems to imply that voidness is automatic, yet there are questions about how the process is set in motion? Second, under Article 53, is the whole treaty conflicting with such a jus cogens norm void, or only those treaty provisions which collide with it? Third, what about treaties adopted before the conflicting jus cogens norm came into being and responsibility for State conduct preceding such invalidity? These and other related questions have found articulated answers almost half a century after the adoption of Article 53, in the International Law Commission’s (“ilc”) Draft Conclusions on “Peremptory norms of general international law (jus cogens)” adopted in 2019.1 This chapter will focus on the issues of invalidity in toto or severability, legal consequences of the invalidity especially for jus cogens norms concerned with human rights protection, reservations and inter-​temporal aspects since these seem to raise contentious issues in relation to the invalidity of treaties. Discussing these legal issues is largely a theoretical exercise since there are few treaties identified so far that have been declared null and void or partially invalidated due to their conflict with a jus cogens norm.2 However, in order to combine legal theory and practice, the chapter shall include a short analysis of three specific jus cogens norms, namely the obligation of non-​refoulement, the 1 Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), Chapter v. 2 See id., paras. 1 and 2 of the Commentary to Draft Conclusion 10 and footnote 818.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_008

178 Zyberi prohibition of genocide, and the prohibition of crimes against humanity. The aim is to highlight the complex situation that might arise in relation to specific treaties codifying jus cogens norms, including reservations entered with regard to them.3 While the 2019 Draft Conclusions of the ilc are an important step forward to understanding jus cogens norms and their place and effect on other international law sources, many questions still remain. This chapter first places jus cogens norms in perspective within the large corpus of general international law (section 2), before generally introducing the topic of the invalidity of treaties conflicting with such norms (section 3). Under this latter section, two issues are dealt with, namely invalidity in whole or in part (separability), and the issue of reservations. Under the section on the effect of invalidity in areas of international law relevant to the protection of fundamental human rights (section 4), a short analysis is provided of three jus cogens norms, namely the obligation of non-​refoulement, the prohibition of genocide, and the prohibition of crimes against humanity and their interaction with treaties covering these areas. The chapter ends with some concluding remarks. 2

Ensuring the Stability and the Progressive Development of International Law

Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable.4 The purported role of jus cogens norms is to ensure the stability and steady development of a fair international legal framework and establish core guiding values for the administration of international justice. Suy has pointed out that the incorporation into international law of the concept of jus cogens has led to the fear that invoking this rule would undermine the stability of international relations and weaken the application of the fundamental pacta sunt servanda

3 In its non-​exhaustive list, the ilc includes the following jus cogens norms: (a) The prohibition of aggression; (b) The prohibition of genocide; (c) The prohibition of crimes against humanity; (d) The basic rules of international humanitarian law; (e) The prohibition of racial discrimination and apartheid; (f) The prohibition of slavery; (g) The prohibition of torture; (h) The right of self-​determination. See Annex to the Draft Conclusions on Peremptory Norms (above note 1). 4 Draft conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 1).

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rule.5 While potentially the disruption could have been considerable, in practice jus cogens norms do not seem to have created any conspicuous disruption. Even in the face of an ongoing international crisis, reflected in high migration and refugee flows, numerous armed conflicts and mass atrocity crimes happening in different parts of the world, specific jus cogens norms, namely non-​ refoulement, the prohibition of genocide, and the prohibition of crimes against humanity have not caused disruptions to international treaty law. States generally have avoided entering into treaties conflicting with a jus cogens norms. Other reasons for the lack of such expected disruption include the lack of willingness on the part of States and regional or international organizations to push the legal consequences of such norms to their logical conclusion when it comes to treaties or agreements which prima facie seem contrary to jus cogens norms; relationships of correlation instead of causation concerning violations of these jus cogens norms; the important role of consent for triggering international adjudication on such matters; and other related factors. That said, the violation of some jus cogens norms concerned with the protection of populations from mass atrocity crimes, especially genocide, war crimes and crimes against humanity has given rise to international legal responsibility for certain individuals and States.6 A significant amount of case law on legal consequences for breaches of jus cogens norms has been developed by international judicial and quasi-​judicial bodies, especially in the last thirty years. The law of treaties has been codified in the 1969 Vienna Convention and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (“1986 vclt”). Article 2 of the 1969 vclt defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”, and Article 2 of the 1986 vclt adds “(i) between one or more States and one or more international organizations; or (ii) between international organizations”. After half a century since 5 Eric Suy “Article 53: Treaties Conflicting with a Peremptory Norm of General International Law (Jus Cogens)” in Olivier Corten and Pierre Klein (eds.) The Vienna Conventions on the Law of Treaties: A Commentary (Volume ii), (Oxford, 2011), at 1229–​1230. See for comparison, in this volume, Patricia Galvão Teles “Peremptory Norms of General International Law (Jus Cogens) and The Fundamental Values of The International Community” (Chapter 3) and Robert Kolb “Peremptory Norms as a Legal Technique rather than Substantive Super-​Norms” (Chapter 2). 6 See among others Gentian Zyberi “Responsibility of States and Individuals for Mass Atrocity Crimes” in André Nollkaemper and Ilias Plakokefalos (eds.) The Practice of Shared Responsibility in International Law (Cambridge, 2017), at 236–​262.

180 Zyberi their inclusion in the law of treaties, the relationship of jus cogens norms with other sources of international law, including treaties, was addressed by the International Law Commission’s 2019 Draft Conclusions. Several of these Draft Conclusions deal with different aspects of the invalidity of treaties. Thus, Draft Conclusion 10 covers “Treaties conflicting with a peremptory norm”; Draft Conclusion 11 covers “Separability of treaty provisions conflicting with a peremptory norm”; Draft Conclusion 12 covers “Consequences of the invalidity and termination of treaties conflicting with a peremptory norm”; and, Draft Conclusion 13 covers “Absence of effect of reservations to treaties on peremptory norms”. Section 3 deals with Draft Conclusions 10 and 11. 3

Invalidity of Treaties: In Whole or in Part?

The legal consequences of peremptory norms for treaties, both under general international law and under the vclt, are significantly less sweeping than is generally assumed.7 The interaction of jus cogens norms with treaties concerns both substantive and procedural matters and the relationship between primary and secondary norms of international law. As a matter of regulating the growth of substantive international law, the general aim of Article 53 vclt is to ensure a basic coherence and continuity of the fundamental norms of international law across the board, as well as to make peremptory norms the foundation of the general corpus of international law. At the same time, Article 53 vclt creates a hierarchy of norms, with jus cogens norms at the apex, but allowing for their potential evolution over time as the international law framework develops to keep pace with the human society needs. The invalidity of a treaty conflicting with a jus cogens norm should be seen as a composite event and process, which starts with the identification of the conflict before moving to the legal consequences of such a conflict for the validity of the treaty concerned and the legal obligations of the parties to that treaty. The issue of invalidity of treaties conflicting with a jus cogens norm in the vclt is regulated along two lines. The first focuses on the scope of the effect of such a conflict, and the question whether the invalidity is of the whole treaty or only those provisions that conflict with the jus cogens norm. The second line focuses on the intertemporal aspect, i.e. the fact that a treaty conflicting with a jus cogens norm at the time of conclusion is void ab initio and does not produce

7 Daniel Costelloe Legal Consequences of Peremptory Norms in International Law (Cambridge, 2017), at 93.

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any effects, whereas in the case of a jus cogens norm emerging at a later time, separability and non-​retroactivity of legal consequences are possible. The invalidity of treaties can be explained as a structural, substantial, logical or axiological hierarchy.8 It can be seen as an effect of a structural hierarchy between norms, or as a phenomenon of hierarchy according to derogatory power.9 A structural hierarchy only means that the rule stating that treaties in conflict with jus cogens are void is structurally superior to the treaties concluded on the basis of the rules on treaty-​making.10 Other scholars have opined that there is no structural hierarchy, or that jus cogens is neither substantive law nor a source of law, but an attribute inherent in certain norms which determines their special consequences in certain respect, namely that of derogation.11 In the absence of a designated mechanism that can assess the compatibility of treaties with jus cogens norms and the absence of an exhaustive list of these norms, as well as the limited State and other practice, it is difficult to see how this process of ascertaining the effects of conflicting norms would unfold. At the domestic level, many States have the possibility of judicial review in case of conflicts of legal norms for assessing the compatibility of an international treaty with the constitution, or their basic laws. Draft Conclusion 21 lays down the procedural requirements for a State to invoke a peremptory norm of general international law (jus cogens) as a ground for the invalidity or termination of a rule of international law.12 According to this Draft Conclusion, a State would have to notify the other States in writing, seek a solution through the means indicated in Article 33 of the UN Charter, and if a solution is not found within a year, the matter can be submitted to the International Court of Justice (icj). While neither the 1969 vclt nor the 2019 Draft Conclusions provide examples of such treaties that might conflict with jus cogens norms, the 1966 Commentary to the vclt explains that some members favored including examples including (a) a treaty contemplating an unlawful use of force contrary to the principles of the Charter, (b) a treaty contemplating the performance of any other act criminal under international law, and (c) a treaty contemplating or conniving at the commission of acts, such as trade in slaves,

8 9 10 11 12

Thomas Kleinlein “Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies” (2016) 46 Netherlands Yearbook of International Law 173, at 176–​180. Id., at 182–​183. Id., at 182. Kleinlein (above note 8), at 183. This Draft Conclusion largely follows Articles 65 and 66 of the vclt. See in this volume Michael Wood “Unilateral invocation of jus cogens Norms” (Chapter 14).

182 Zyberi piracy or genocide, in the suppression of which every State is called upon to co-​operate.13 Other members thought it would be undesirable to appear to limit the scope of the article to cases involving acts that constitute crimes under international law, treaties violating human rights, the equality of States, or the principle of self-​determination.14 Ultimately, no examples of treaties, nor a list of jus cogens rules were included in the vclt. The next two subsections will deal respectively with the invalidity of treaties in their entirety and the separability issue. 3.1 Invalidity of a Treaty as a Whole Draft Conclusion 10 follows the approach of the 1969 Vienna Convention by distinguishing between, on the one hand, treaties that, at the time of their conclusion, are in conflict with a peremptory norm of general international law (jus cogens) (paragraph 1) and, on the other hand, treaties that conflict with a peremptory norm of general international law that emerges subsequent to the conclusion of the treaty (paragraph 2).15 These two alternatives are reflected respectively in Articles 53 and 64 of the vclt. The first paragraph of Draft Conclusion 10 provides that a treaty is void ab initio, if at the time of its conclusion it conflicts with a jus cogens norm. Hence, the provisions of such a treaty have no legal force. The second paragraph of this Draft Conclusion provides that if a new jus cogens emerges, any existing treaty which is in conflict with that norm becomes void and terminates. The parties to such a treaty are released from any obligation further to perform the treaty. That a treaty conflicting with a jus cogens norm at the time of its conclusion would be null and void, was already laid down under common Article 53 of the 1969 and the 1986 vclt s. This Draft Conclusion establishes an obligation on States not to conclude treaties that conflict with jus cogens norms. This ensures the coherence and unity of international law and respect for the fundamental values of the international community that jus cogens norms represent. The ilc could have parted with the Vienna Convention, to allow the separability of treaty provisions that conflict with peremptory norms even in cases where the treaty conflicts with peremptory norm at the time of conclusion

13 14 15

Paragraph 3 of the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties, Report of the International Law Commission, Twenty-​First Session, General Assembly Official Records (A/​c n.4/​s er.A/​1966/​Add.1) (1966). Ibid. Draft Conclusion 10 of the ilc Draft Conclusions on Peremptory Norms (above note 1).

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of the treaty.16 As Tladi notes, this deviation from the Vienna Convention could be justified because there was little direct practice of treaties being invalidated in whole on account of conflict with peremptory norms, while there was at least some support for separability even in cases where there existed conflict between the treaty provision and the peremptory norm.17 Other reasons to allow separability even in these circumstances could be of a cost-​benefit nature, aimed at preserving where possible the gist of the work and efforts made by the States, while repudiating those parts of the treaty conflicting with jus cogens norms, and the fact that admittedly no significant harm would have come about at such an early stage necessitating the rejection of the whole treaty. From the perspective of the general development of international law, the solution adopted by the ilc seems one geared more towards maintaining the status quo than encouraging its piecemeal development. As it stands, international law seems not to allow the separability of treaty provisions for a newly concluded treaty, but allows it for a dated treaty whose substantive norms and implementation mechanisms might be in more need for and potentially benefit from thorough rethinking, redesigning and amendment process. There are no examples given of treaties conflicting with a jus cogens norm at the time of conclusion. The reason is that States would generally avoid entering into such treaties, and even if that were to happen, there would be a strong incentive to avoid embarrassment, as well as potential limitations on access to legal venues to condemn such a treaty. An example given by the ilc of treaties that ceased because they came in conflict with a jus cogens norm is former treaties regulating the slave trade, the performance of which later ceased to be compatible with international law owing to the general recognition of the total illegality of all forms of slavery.18 The discussions at the ilc concerning the 1969 vclt were being held at a high time of decolonization and independence of colonies and the adoption of non-​retroactivity of legal consequences in such circumstances seems to betray some of the major concerns that these articles were meant to address, including the issue of reparations for wrongs done to the populations of the former colonies.

16 17 18

Dire Tladi “The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens): Making Wine from Water or More Water than Wine” (2020) 89 Nordic Journal of International Law 244, at 264–​265. Ibid. Para 1 of the Commentary to Draft Article 61 of the Draft Articles on the Law of Treaties (above note 13).

184 Zyberi 3.2 Separability of Treaty Provisions The question of separability lies at the heart of the traditional concern of treaty stability and the underlying goals that such purported stability serves for international relations.19 Draft Conclusion 11 addresses the issue of separability of treaty provisions conflicting with a jus cogens norm. According to Draft Conclusion 11(1), a treaty which, at the time of its conclusion, conflicts with a peremptory norm of general international law (jus cogens) is void in whole, and no separation of the provisions of the treaty is permitted. The ilc 2019 Draft Conclusions have followed the vclt bifurcated approach under which treaties that at the time of conclusion conflict with jus cogens are void ab initio and there is no possibility of separability, whereas when a treaty conflicts with a jus cogens norm that has emerged afterwards (jus cogens superveniens), separability is permitted under certain conditions.20 The Commentaries to the 1966 Draft Articles clarify that the Commission considered that the emergence of a new rule of jus cogens is not to have retroactive effects on the validity of a treaty,21 and pointed out the difficulty of applying the article in a satisfactory manner unless it is accompanied by a system of independent adjudication or by some provision for an authoritative determination of the rules which are rules of jus cogens.22 Draft Conclusion 11(2) addresses circumstances where a treaty or particular provisions of a treaty conflict with a peremptory norm that emerges subsequent to the conclusion of the treaty, allowing for separability. The three cumulative conditions for that separability to be possible are: (a) the provisions that are in conflict with a peremptory norm of general international law (jus cogens) are separable from the remainder of the treaty with regard to their application; (b) it appears from the treaty or is otherwise established that acceptance of the said provisions was not an essential basis of the consent of any party to be bound by the treaty as a whole; and (c) continued performance of the remainder of the treaty would not be unjust.23

19 20 21 22 23

Elizabeth Santalla Vargas “In Quest of the Practical Value of Jus Cogens Norms” (2016) 46 Netherlands Yearbook of International Law 211, at 234 (footnote omitted). See Article 44 of the vclt on separability of treaty provisions and Article 64 on the emergence of a new peremptory norm of general international law (“jus cogens”). Para 6 of the Commentary to Draft Article 50 and paragraph 2 of the Commentary to Draft Article 61 of the Draft Articles on the Law of Treaties (above note 13). Id., para 5 of the Commentary to Draft Article 50. Draft Conclusion 11(2) of the Draft Conclusions on Peremptory Norms (above note 1).

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Jus cogens superveniens can trigger specific conflicting provisions as it does not impinge upon the validity of the other treaty provisions not in conflict with the emerging peremptory norm –​provided that such provisions meet the criteria of separability set forth in Article 44(3) vclt.24 Allowing the separability of treaty provisions conflicting with jus cogens norms purportedly serves the stability of international law and of international relations. Treaty stability and legal certainty in international relations is purportedly advanced by a dynamic practice aiming at the progressive development of international law rather than at its avoidance or stagnation.25 The legal effects of jus cogens superveniens are therefore broader by allowing separability but also the termination of the treaty, particularly in situations where its continuing performance would render unjust, independently of the application of the Vienna Convention.26 3.3 Reservations to Treaty Provisions Reflecting Jus Cogens Norms Under Draft Conclusion 13, a reservation to a treaty provision that reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply as such. Yet the provision does not prohibit the reservation as such. The Commentary explains that it “would be going too far to prohibit a reservation to a provision in a treaty which reflects a peremptory norm of general international law (jus cogens) outright since such a determination should always be dependent upon ascertaining the object and purpose of the treaty in question –​an exercise that can only be done through the interpretation of each particular treaty.”27 It is difficult to understand this position, especially when the Draft Conclusions allow for a whole treaty being declared invalid for conflicting with a jus cogens norm, while being seemingly neutral to reservations? If the rationale for this approach is based on the potentially lengthy process for ascertaining the validity of a treaty or of related reservations, either could entail a similarly protracted process as generally outlined in Draft Conclusion 21. Also, it seems difficult to reconcile this Draft Conclusion with Draft Conclusion 14(3) which provides that the persistent objector rule does not apply to peremptory norms of general international law (jus cogens), since under Draft Conclusion 13 a persistent objector could try to avoid jus cogens norms at least temporarily by entering a reservation. 24 25 26 27

Vargas (above note 19), at 233. Id., at 234. Id., at 235. Para of the Commentary to Draft Conclusion 13 of the Draft Conclusions on Peremptory Norms (above note 1).

186 Zyberi The position of the ilc seems based on a separation between procedural and substantive law, when it comes to reservations to enforcement mechanisms under a treaty. This position of the ilc has been confirmed by the International Court of Justice (icj or Court) in several decisions, where the Court has pointed out that despite its lack of jurisdiction, the State party to the dispute remains bound by the international law norms and responsible under them.28 Also, the Court has separated the reservations to the adjudicatory mechanisms from the substantive norms of the treaty with regard to the Genocide Convention, by stating that it is for the States to decide whether they would like to be subjected to adjudication under the terms of the treaty codifying a jus cogens norm, in this case the prohibition of genocide under the 1948 Genocide Convention.29 The Court has made a similar finding with regard to reservations to Article 22 of the Convention on the Elimination of Racial Discrimination aimed at prohibiting racial discrimination.30 More generally, the Court has emphasized that “the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties.”31 Thus, the Court must ascertain that it has the necessary State consent before exercising jurisdiction bestowed upon it under a specific treaty. It is plausible to derive from the nullifying effect of peremptory norms the inadmissibility of reservations to core guarantees of human rights treaties, as the UN Human Rights Committee has found.32 Moreover, when it comes to reservations concerning its jurisdiction, the Committee has been quite strict, stating that its role “under the Covenant, whether under Article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation

28 29 30 31 32

See especially Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, icj Reports 2006, p.6, at para. 127. Id., at para. 69, at 33. Id., at para. 78, at 35. Id., at para. 125. See also Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), icj Reports 2012, p.99, para. 95. Stefan Kadelbach “Genesis, Function and Identification of Jus Cogens Norms” (2016) 46 Netherlands Yearbook of International Law 147, at 162. See also Human Rights Committee, General Comment No. 24, Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Protocols Thereto (ccpr/​C/​21/​Rev.1/​Add.6) (1994), at para 8, with the prohibition of torture and arbitrary deprivation of life mentioned as examples of peremptory norms of international law.

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that rejects the Committee’s competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.”33 Similarly, with regard to individual communications, the Committee has held that “because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the First Optional Protocol, even if not of the Covenant.”34 Such a strict position on the part of the Committee concerning reservations to its jurisdiction is understandable, given its mandate is confined to monitoring the Covenant’s and the Protocols’ enforcement, whereas the icj that is an international court of general jurisdiction. The main problem which has arisen in more recent international law practice concerning jus cogens norms pertaining to international human rights and humanitarian law, and which Draft Conclusion 13 does not address, is that a State can avoid responsibility by excluding adjudicatory mechanisms through a treaty reservation. This separation between procedural and substantive norms creates a protection gap by removing the possibility of access to a remedy. While it is not the purpose of this Draft Conclusion to regulate reservations, the position taken follows previous work on the topic, which can potentially weaken the impact of jus cogens norms. 4

The Effect of Invalidity in Areas of International Law Fundamental to Human Rights Protection

Draft Conclusion 12 addresses the legal consequences of the invalidity of treaties. Draft Conclusion 12(1) addresses parties to a treaty which is void as a result of being in conflict with a peremptory norm of general international law (jus cogens) at the time of the treaty’s conclusion. According to this provision, the parties have a legal obligation to: (a) eliminate as far as possible the consequences of any act performed in reliance on any provision of the treaty which conflicts with a peremptory norm of general international law (jus cogens); and (b) bring their mutual relations into conformity with the peremptory norm of general international law (jus cogens).

33 34

Human Rights Committee, General Comment No. 24 (above note 32), at para. 11. Id., at para. 13.

188 Zyberi The first obligation, which is backward-​looking, is to eliminate “as far as possible” consequences of acts performed under an impugned treaty –​so not an obligation of result but one of conduct which requires States to make best efforts to eliminate any such consequences.35 Also, the duty is not to eliminate the consequences of any acts performed in reliance of any part of the treaty, but only the consequences of those acts which have been performed in reliance on the impugned provisions of the treaty.36 The second obligation, which is forward looking, requires parties to the treaty to ensure that their international relations are made consistent with the concerned peremptory norm. Draft Conclusion 12(2) provides that the termination of a treaty on account of the emergence of a new peremptory norm of general international law (jus cogens) does not affect any right, obligation or legal situation created through the execution of the treaty prior to the termination of the treaty, provided that those rights, obligations or situations may thereafter be maintained only to the extent that their maintenance is not in itself in conflict with the new peremptory norm of general international law (jus cogens). What do these Draft Conclusions mean for the interaction of jus cogens norms concerned with international human rights protection under existing treaties? This issue has attracted some scholarly attention.37 The complexity of that interaction is compounded by a lack of political will to confront some of the existing problems and disagreement on the legal definition of what constitutes a conflict of norms. There is a lack of willingness on the part of States and regional or international organizations to push the legal consequences of such norms to their logical conclusion when it comes to treaties or agreements that prima facie conflict with these jus cogens norms. Concerning the conflict of norms, as Kleinlein has noted: Broader definitions of legal conflicts include ‘indirect’ conflicts that occur whenever a norm somehow impedes the operation of jus cogens, for example in situations in which the rules of state immunity would lead 35 36 37

Draft Conclusion 12(1) of the ilc Draft Conclusions on Peremptory Norms (above note 1). Ibid. See among others John Tasioulas “Custom, Jus Cogens, and Human Rights” in Curtis A Bradley (ed.) Custom’s Future: International Law in a Changing World (Cambridge, 2016); Erika Hennequet “Jus Cogens and Human Rights: Interactions Between Two Factors of Harmonization of International Law” in Norman Weiß and Jean-​Marc Thouvenin (eds.) The Influence of Human Rights on International Law (Springer, 2016); Andrea Bianchi “Human Rights and the Magic of Jus Cogens” (2008) 19 European Journal of International Law 491; Evan J. Criddle and Evan Fox-​Decent “Fiduciaries of Humanity: How International Law Constitutes Authority” (Oxford, 2016), at 77–​121.

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to the undesired result of impunity for violations of peremptory norms by individuals, in particular war crimes, genocide or torture. This notion of conflict responds to the perceived need for effective enforcement of the values underpinning jus cogens norms. It is, in the end, an effet utile argument.38 Den Heijer and van der Wilt have noted that the fact that the realm of jus cogens is predominated by human rights has yielded two effects: first, it has triggered greater attention for the enforcement of peremptory norms (the “functions”/​“effects” of jus cogens); and second, it has put the responsibility of non-​State actors for violation of jus cogens norms on the agenda.39 While the traditional conception of jus cogens compelled States to abstain from violating essential norms, the modern approach, entailing the protection of fundamental human rights and interests against incursions from both State and non-​ State actors, involves positive obligations that the State is exclusively expected to fulfill.40 In the context of the jus cogens norms selected for analysis below, the obligations of States and the international community are reflected in the “responsibility to protect” (RtoP) doctrine and its legal basis under international law, enjoining States to “respect and to ensure respect” for fundamental human rights concerned with the protection of populations from mass atrocity crimes.41 Nonetheless, States, (international) courts and tribunals and many scholars are highly reluctant to attach such positive obligations to jus cogens rules.42 The next three subsections deal respectively with obligation of

38 39 40 41

42

Kleinlein (above note 8), at 184. Maarten den Heijer and Harmen van der Wilt “Jus Cogens and the Humanization and Fragmentation of International Law” (2016) 48 Netherlands Yearbook of International Law 3, at 8. Id., at 10. On the Responsibility to Protect (RtoP) doctrine see among others Gareth Evans The Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All (Brookings Institution, 2008); Alex J. Bellamy Responsibility to Protect: The Global Effort to End Mass Atrocities (Polity, 2009); Jared Genser and Irwin Cotler (eds.) The Responsibility to Protect: The Promise of Stopping Mass Atrocities in Our Time (Oxford, 2011); Julia Hoffmann and André Nollkaemper (eds.) Responsibility to Protect: From Principle to Practice (Amsterdam, 2012); Gentian Zyberi (ed.) An Institutional Approach to the Responsibility to Protect (Cambridge, 2013); Alex J. Bellamy The Responsibility to Protect: A Defense (Oxford, 2014); Ramesh Thakur (ed.) Theorising the Responsibility to Protect (Cambridge, 2015); Alex J. Bellamy and Timothy Dunne (eds.) The Oxford Handbook of the Responsibility to Protect, (Oxford, 2016); Natalie Oman The Responsibility to Protect in International Law: Philosophical Investigations (Routledge, 2019). Den Heijer and van der Wilt (above note 39), at 10.

190 Zyberi non-​refoulement, the prohibition of genocide, and the prohibition of crimes against humanity and how these jus cogens norms might be relevant when it comes to the invalidity of treaties. These are among the jus cogens norms dealt with in quite some detail in the Fourth Report on Peremptory Norms of General International Law (jus cogens) by Dire Tladi, Special Rapporteur of the ilc on this topic.43 4.1 The Obligation of Non-​Refoulement The obligation of non-​refoulement is very important under international human rights law. This obligation can be seen as a jus cogens norm,44 given that States are prohibited from sending individuals under their jurisdiction to another a State where the individual may be subjected to torture or cruel, inhuman or degrading treatment or punishment, or risk to their lives. As Costello and Foster have pointed out: There are a handful of examples of domestic or regional courts accepting the jus cogens status of non-​refoulement. De Wet cites the example of the domestic declaration of a popular initiative in Switzerland invalid where it potentially violated non-​refoulement as jus cogens. In addition, we can point to the concurring opinion of Judge Pinto de Albuquerque in Hirsi v Italy, in which he stated that “the prohibition of refoulement is a principle of customary international law, binding on all States, even those not parties to the UN Refugee Convention or any other treaty for the protection of refugees. In addition, it is a rule of jus cogens, on account of the fact that no derogation is permitted and of its peremptory nature, since no reservations to it are admitted.”45 This issue is separate from the question of whether the purported jus cogens character of the principle of non-​refoulement makes a difference against forced returns under multi-​lateral treaty arrangements or bilateral agreements?46 There might be such agreements in place, which at a closer look might go against what the non-​refoulement obligation requires of States.

43 44 45 46

See Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (jus cogens) (A/​c n.4/​727)(2019). Id., paras. 131-​133. Cathryn Costello and Michelle Foster “Non-​refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test” (2016) 46 Netherlands Yearbook of International Law 273, at 308. Id., at 273–​324.

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4.2 The Prohibition of Genocide As expected, the prohibition of genocide is included in the list of jus cogens norms annexed to the Draft Conclusions. After comprehensively going through existing practice,47 the Fourth Report on Peremptory Norms of General International Law (jus cogens) concludes that such inclusion is indeed warranted.48 The prohibition was first embedded in the 1948 Genocide Convention. Additionally, the prohibition and the punishment of genocide is included in the statutes of several international criminal courts and tribunals and in domestic laws. While it is unlikely that two or more States would enter into an agreement to commit genocide, questions might be raised in terms of obligations on the part of States to prevent genocide or for complicity in genocide and how that might affect different international treaties. An interesting question and contentious issue is the effect of this jus cogens norm on the obligation of States to cooperate under Part 9 (International Cooperation and Judicial Assistance) of the Statute of the International Criminal Court, and especially the interpretation of Article 98 (Cooperation with respect to waiver of immunity and consent to surrender). 4.3 The Prohibition of Crimes against Humanity The prohibition of crimes against humanity is firmly established in both practice and doctrine as a norm that is accepted and recognized as one from which no derogation is permitted.49 The prohibition of crimes against humanity is included in the statutes of several international criminal courts and tribunals and in domestic laws. More recently, this prohibition has been codified in the new draft articles on crimes against humanity adopted by the ilc in 2019.50 Article 5 of these draft articles provides that no State shall expel, return (refouler), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to a crime against humanity.

47 48 49 50

Fourth Tladi Report (above note 43), at paras. 78-​83. Id., at para. 83. Id., at para. 90. See paras. 84-​90 for the full survey. Draft Articles on Prevention and Punishment of Crimes Against Humanity, Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), Chapter iv.

192 Zyberi 5

Concluding Remarks

Lingering legal uncertainties and lack of political will to confront some controversies and situations have generally prevented jus cogens norms from playing an important role within international law. The invalidity of treaties due to their conflict with jus cogens norms is a field ripe for controversies. While over time consensus has been reached about certain international law norms having achieved jus cogens status, what this status means for the application of different treaties needs further elaboration, especially when it comes to prevention and accountability matters. While there is a gap between aspirations and reality as far as the scope and consequences of jus cogens are concerned, the existence of the category of jus cogens norms embodies both a possibility and hope for the process of humanization of international law. As Georges Abi-​ Saab has shrewdly noted, even if jus cogens category were an empty box, “the category was still useful; for without the box, it cannot be filled”.51 Considering the legal developments since jus cogens was identified as a category of international law norms, it seems that the filling of that box is proceeding at a fairly slow pace and many States still seem to consider it as a Pandora box. 51

Georges Abi-​Saab “The Third World and the Future of the International Legal Order” (1973) 29 Revue Egyptienne de Droit International 27, at 53, as cited in Bianchi (above note 37), at 491.

Chapter 8

Jus Cogens’ Preferred Sister

Obligations Erga Omnes and the International Court of Justice –​Fifty Years after the Barcelona Traction Case Martha M Bradley 1

Introduction

The concept of jus cogens received formal recognition in positive law through Article 53 of the Vienna Convention on the Law of Treaties of 1969 (vclt).1 This provision deals with the effect of jus cogens norms in treaty law and states that a treaty is void if at the time of its conclusion it conflicts with a peremptory norm of general international law. Article 53 sets out the criterion for jus cogens, namely, it is a norm of general international law accepted and recognised by all States from which no derogation is allowed. The International Law Commission (ilc) in its Draft Conclusions 3 on Peremptory Norms of General International Law (jus cogens) (Draft Conclusions) makes an important contribution to gaining a better understanding of jus cogens. First, jus cogens norms serve to protect the fundamental values of the international community,2 second, jus cogens norms are hierarchically superior to other rules of international law,3 and, lastly, jus cogens norms are universally applicable.4 Draft Conclusion 17 of the ilc’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens) specifically addresses the relationship between jus cogens and erga omnes obligations from the perspective of 1 Article 53 of the 1969 Vienna Convention on the Law of Treaties: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”. 2 For a discussion of fundamental values as a core characteristic of jus cogens, see Aniel de Beer The Prohibition of Terrorism as a Norm of General International law (Jus Cogens) (Brill, 2019), at 106–​10. 3 See id., at 110-​113 for a discussion of the hierarchical superiority of jus cogens as a criterion. 4 See id., for an overview of the “universal application” of jus cogens, see De Beer (above note 2), at 113–​114.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_009

194 Bradley jus cogens norms.5 This Draft Conclusion, titled “Peremptory Norms of General International Law (jus cogens) as Obligations Owed to the International Community as a Whole (Obligations Erga Omnes)” states: “[p]‌eremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest”.6 There are several important contributions by scholars with regard to the relationship between jus cogens and erga omnes through the lens of jus cogens7 and valuable contributions on the nature of jus cogens,8 but unlike its “big sister” erga omnes has not received as much 5 6 7

8

See the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), at 145. Ibid. M Cherif Bassiouni “International Crimes: Jus Cogens and Obligations Erga Omnes” (1996) 59 Law and Contemporary Problems 63, 63–​74; Stefan Kadelbach “Jus Cogens, Obligations Erga Omnes and other Rules: The Identification of Fundamental Norms” in Christian Tomuschat and Jean-​Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order (Brill, 2005); Karl Zemanek “New Trends in the Enforcement of Erga Omnes Obligations” (2000) 4 Max Planck Yearbook of United Nations Law 1; Markus Petsche “Jus Cogens as a Vision of the International Legal Order” (2010) 29 Penn State International Law Review 233; Erika de Wet “Invoking Obligations Erga Omnes in the Twenty-​First Century: Progressive Developments Since Barcelona Traction” (2013) 38 South African Yearbook of International Law 2; Erika de Wet “Jus Cogens and Obligations Erga Omnes” in Dinah Shelton (ed.) The Oxford Handbook of International Human Rights Law (Oxford, 2013). Bassiouni (above note 7) 63–​74; Andrea Bianchi “Human Rights and the Magic of Jus Cogens” (2008) 19 European Journal of International Law 491; Gennady M. Danilenko “International Jus Cogens: Issues of Law-​Making” (1991) 2 European Journal of International Law 42; Anthony D’amato “It’s a Bird, it’s a Plane, it’s Jus Cogens” (1990) 6 Connecticut Journal of International Law 1; Mark W. Janis “Nature of Jus Cogens” (1987) 3 Connecticut Journal of International Law 359; Gordon A. Christenson “Jus Cogens: Guarding Interests Fundamental to International Society” (1987) 28 Virginia Journal of International Law 585; Egon Schwelb “Some Aspects of International Jus Cogens as Formulated by the International Law Commission” (1967) 61 American Journal of International Law 946; Jean d’Aspremont “Jus Cogens as a Social Construct Without Pedigree” (2015) 46 Netherlands Yearbook of International Law 85; Dinah Shelton “Sherlock Holmes and the Mystery of Jus cogens” (2015) 46 Netherlands Yearbook of International Law 23; Stefan Kadelbach “Genesis, Function and Identification of Jus Cogens Norms” (2015) 46 Netherlands Yearbook of International Law 147; Robert Kolb “General Principles of Law, Jus Cogens and the Unity of the International Legal Order” in Mads Andenas, Malgosia Fitzmaurice, Attila Tanzi & Jan Wouters (eds.) General Principles and the Coherence of International Law (Brill, 2019), at 60–​64; De Beer (above note 2); Atul Alexander “Ulf Linderfalk: Understanding Jus Cogens in International Law and International Legal Discourse” (2020) 41 Liverpool Law Review 1; Ulf Linderfalk “The Emperor’s New Clothes–​What If No Jus Cogens Claim Can Be Justified?” (2020) 22 International Community Law Review 139; Dire Tladi “The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus

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attention in scholarly writing. In his dissenting opinion in East Timor Judge Weeramantry shares this observation: The erga omnes concept for many years has been at the door of the International Court of Justice (ICJ). A disregard of erga omnes obligations causes a serious tear in the web of international obligations, and the current state of international law requires violations of the concept to be followed through to their logical and legal conclusion.9 Against this background, the purpose of this contribution is to propose tentative conclusions as a result of revisiting the contributions made by the icj towards the notion of erga omnes obligations which, at the time of writing, celebrates its demi-​centennial anniversary since its introduction into the mainstream of international law by the decision of the icj in the Barcelona Traction Light and Power Company judgment in 1970.10 Although Barcelona Traction is almost synonymous with erga omnes, the concept had been employed prior to that famous judgment.11 Erga omnes obligations can be traced back to 1957 when the term was used in the context of the legal effects of treaties on third party States and the objective effects of dispositive treaties.12 The current contribution relates to the Barcelona Traction comprehension of obligations erga omnes and not to the earlier understanding of erga omnes in the context of treaty law.

9 10 11

12

cogens): Making Wine from Water or More Water than Wine” (2020) 89 Nordic Journal of International Law 1. Case Concerning East Timor (Portugal v Australia), icj Reports 1995, 90, Dissenting Opinion of Judge Weeramantry, at 215; Georg Schwarzenberger “International Jus Cogens” (1964) 43 Texas Law Review 455. Case Concerning the Barcelona Traction, Light and Power Company Limited (Belgium v Spain), New Application: 1962, Second Phase, icj Reports 1970, p. 3, at para. 33. The pre-​Barcelona Traction understanding of erga omnes is often overlooked. For an examination of the “original” meaning of an obligation erga omnes under international law, see Christian Tams and Maurizio Ragazzi “The Appearance of the Concept of Obligation Erga Omnes on the Agenda: The Dictum of the International Court in the Barcelona Traction Case” in Maurizio Ragazzi (ed.) The Concept of International Obligations Erga Omnes (Clarendon Press, 1997) 1; Maurizio Ragazzi “Selected Prefigurations of the Concept of Obligations Erga Omnes: (a) State Servitude, Permanent Dedication, International Status and Objective Regime” in Maurizio Ragazzi(ed.) The Concept of International Obligations Erga Omnes (Clarendon Press, 1997) 18; Christian J Tams “Distinguishing Types of Erga Omnes Effects” in Christian J Tams Enforcing Obligations Erga Omnes in International Law (Cambridge University Press, 2005) 99. Tams (above note 11), at 103–​106; Ragazzi “Selected Prefigurations of the Concept of Obligations Erga Omnes” (above note 11), at 37–​41.

196 Bradley Even though the Barcelona Traction case concerns the diplomatic protection of shareholders of a foreign corporation, the icj judgment introduced two seminal paragraphs (paragraphs 33 and 34) which depart from the main arguments and the central legal question before the Court.13 This innovation was of such great impact that ever since it has been known as the Barcelona Traction dictum.14 Scholars have argued that the inclusion in the Barcelona Traction judgment was the icj’s way of righting a wrong and improving its image as a consequence of an earlier decision in the South West Africa cases.15 Others focus on the observation that the most pressing legal issues debated as a consequence of the Barcelona Traction judgment do not concern diplomatic protection but centre on the meaning of erga omnes obligations and debate whether or not the construct even matters.16 Over the past 50 years the legal construct of erga omnes obligations has generated abundant academic debate producing comments that describe this construct as, amongst other descriptions, “mysterious”17 and “puzzling”.18 Some view the contribution of the Barcelona Traction dictum as extremely influential and consider it to have a lasting impact,19 whereas others describe “obligations erga omnes” as being “purely theoretical”20 and the product of “wishful

13

Barcelona Traction (above note 10); Ragazzi “The Appearance of the Concept of Obligation Erga Omnes” (above note 11), at 3–​5. 14 See Ragazzi “The Appearance of the Concept of Obligation Erga Omnes” (above note 11), at 1–​17. 15 See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, p. 95, Separate Opinion of Judge Robinson, at paras. 53 and 56 where Judge Robinson considers that the inclusion of the Barcelona Traction dictum was the icj compensating for its decision in the South West Africa cases. See South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Second Phase, icj Reports 1966, p. 347. See also Dire Tladi “The International Court of Justice and South Africa” in Achilles Skordas (ed.) Research Handbook on the International Court of Justice (Forthcoming, Elgar). 16 Christian J Tams and Antonios Tzanakopoulos “Barcelona Traction at 40: The ICJ as an Agent of Legal Development” (2010) 23 Leiden Journal of International Law 781, at 791; Ragazzi “The Appearance of the Concept of Obligations Erga Omnes” (above note 11), at 1–​5. 17 Tams and Tzanakopoulos (above note 16) 781, at 791. 18 Ibid. 19 Id., at 786. 20 Tams and Tzanakopoulos (above note 16), at 792 citing Hugh Thirlway “The Law and Procedure of the International Court of Justice 1960–​1989” (1980) 60 British Yearbook of International Law 37, at 100.

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thinking”.21 Among the sceptics some go as far as to belittle the Barcelona Traction dictum, diminishing its importance by conveying in their scorn that it gives “the impression of having been studiously planted in the text or artificially dragged into the arena”.22 In this context it has been said that “[v]‌iewed realistically, the world of obligations erga omnes is still the world of the ‘ought’ rather than the ‘is’ ”.23 In the opinion of this author the Barcelona Traction dictum remains important. As recently as in 2019 it was employed by the icj in its Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 196524 and continues to stimulate debate.25 Accordingly, this chapter is structured so as to highlight the most significant contributions by the icj which are directed at the development of obligations erga omnes, as well as to offer an estimation if the past five decades have proved helpful in deciphering the content of this legal notion and in realising fully its potential. First, this chapter reflects on the most important contributions by the icj in shaping the construct “obligations erga omnes”. Although five decades have passed and a great deal has been written on the topic, a precise or even an agreed-​upon understanding of the exact nature, content and consequences of obligations erga omnes appears to evade the international legal community.26 This contribution considers whether this 21

Tams and Tzanakopoulos (above note 16), at 792–​93 citing Alfred Rubin “Comment” in Jost Delbrück (ed.) The Future of International Law Enforcement: New Scenarios –​New Law? (Duncker & Humblot, 1993), at 171–​72. 22 Ragazzi “The Appearance of the Concept of Obligation Erga Omnes” (above note 11), at 5. 23 See Case Concerning East Timor (above note 9), Dissenting Opinion of Judge Weeramantry J, at 216, citing Bruno Simma “Does the UN Charter Provide an Adequate Legal Basis for Individual or Collective Responses to Violations of Obligations Erga Omnes” in Delbrück (above note 21), at 126. 24 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius (above note 15). 25 See, in this volume, Julia Sebutinde “Is the Right to Self-​Determination Jus Cogens: Reflections on the Chagos Advisory Opinion” (Chapter 16). See also, Craig Eggett and Sarah Thin “Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion”, EJIL:Talk!, 21 May 2019 available at https://​www.ejiltalk.org/​clarification-​and-​ conflation-​obligations-​erga-​omnes-​in-​the-​chagos-​opinion/​ (accessed 30 October 2020); Milena Sterio “ICJ Advisory Opinion in the Chagos Archipelago Case: Self-​Determination Re-​Examined”, INTLAWGRRLS, 6 March 2019 available at https://​ilg2.org/​2019/​03/​06/​ icj-​advisory-​opinion-​in-​the-​chagos-​archipelago-​case-​self-​determination-​re-​examined/​ (accessed 17 April 2020). 26 Oddny Mjoll Arnardottir “Res Interpretata, Erga Omnes Effect and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights” (2017) 28 European Journal of International Law 819; Michael Byers

198 Bradley notion over time has evolved or whether the input of the icj, rather than providing clarification, has diluted its value and confused its meaning even to the point of regression. This section pays special attention to the icj’s most recent decision in the 2019 Advisory Opinion on the Legal Consequences of the Separation of the Chagos27 as this matter has not been subjected to academic overproduction.28 Second, this contribution will assess the examples of norms that have been considered by the icj to be of an erga omnes character. The nature of these types of norms may offer insight into the identification of other norms of the same type. This section concludes with a non-​exhaustive list of norms that have received a metaphorical stamp of approval by the icj as being obligations erga omnes. An appreciation of such obligations erga omnes might contribute to an understanding of this concept. Finally, fittingly on this occasion of the fiftieth anniversary of the Barcelona Traction judgment a conclusion is offered which aims to answer whether over the past 50 years the notion of obligations erga omnes has greater clarity.

“Omnes Rules” (1997) 66 Nordic Journal of International Law 211; M Cherif Bassiouni (above note 7); Wladyslaw Czaplinski “Concepts of Jus Cogens and Obligations Erga Omnes in International Law in the Light of Recent Developments” (1999) 23 Polish Yearbook of International Law 87; De Wet “Invoking Obligations Erga Omnes” (above note 7); Pierre Marie Dupuy “Back to the Future of a Multilateral Dimension of the Law of State Responsibility for Breaches of Obligations Owed to the International Community as a Whole” (2012) 23 European Journal of International Law 1059; Kadelbach (above note 7); Meron Theodor “On a Hierarchy of International Human Rights” (1986) 80 American Journal of International Law 1; Christian J Tams Enforcing Obligations Erga Omnes in International Law (Cambridge, 2005); Alfred Verdross “Forbidden Treaties in International Law” (1976) 31 American Journal of International Law 571; Prosper Weil “Towards Relative Normativity in International Law?” (1983) 77 American Journal of International Law 413; Rüdiger Wolfrum “Enforcing Community Interests Through International Dispute Settlement: Reality or Utopia?” in Ulrich Fastenrath, Rudolf Geiger, Daniel-​Erasmus Khan, Andreas Paulus, Sabine von Schorlemer & Christoph Vedder (eds.) From Bilateral to Community Interest. Essays in Honour of Judge Bruno Simma (Oxford, 2011); Karl Zemanek (above note 7). 27 Legal Consequences of the Separation of the Chagos Archipelago (above note 15). 28 The term “academic overproduction” was borrowed from Jean d’ Aspremont “Destination: The Wasteland of Academic Overproduction (Part 1)”, ejil: Talk!, 3 February 2020 available at https://​www.ejiltalk.org/​destination-​the-​wasteland-​of-​academic-​ overproduction-​part-​1/​ (accessed 31 October 2020) ejil: Talk! And Jean d’Aspremont “Destination: the Wasteland of Academic Overproduction (Part 2)” 3 February 2020 ejil: Talk!.

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199

Understanding Obligations Erga Omnes: From Barcelona to Chagos

The literal translation of erga omnes is “applicable to all”.29 Certain norms of international law have an erga omnes effect and are binding on all States. In the literature reference is interchangeable between erga omnes norms, erga omnes obligations and the erga omnes character or nature of norms. The term erga omnes as used in this contribution denotes the effect certain norms have due to the importance of the rights they protect to the international community as a whole.30 This section discusses the most significant contributions by the icj in developing an understanding of the content and consequences of the notion “obligations erga omnes” in the context of law enforcement. Particular emphasis is placed on the Barcelona Traction dictum (section 2.1) in which the icj inserts the notion of obligations erga omnes into main stream international law and “standing” as well as on the Chagos Archipelago Advisory Opinion (section 2.3), which is the most recent contribution the icj has made with regard to obligations erga omnes and which at the time of writing has received little scholarly attention.31 The Case Concerning East Timor and the Application of the Convention of the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) are discussed in section 2.2 as these cases give substance to the relationship between the erga omnes nature of a norm and the jurisdictional requirements of the icj. 2.1 The Barcelona Traction Case (Second Phase) 1970 The legal notion of “obligations erga omnes” was for the first time introduced by the icj into the corpus of international law in the 1970 Barcelona Traction judgment.32 In 1962 the Belgian government filed a claim for reparations on behalf of Belgian nationals for damages allegedly sustained by its nationals who were

29 30 31

32

Victor Gustav Hiemstra and Henri Louis Gonin Drietalige Regswoordeboek/​Trilingual Legal Dictionary (Juta & Co, 1992) 247, at 249. This interpretation aligns with Barcelona Traction (above note 10), at para. 33. Very few scholars have commented on paragraph 180 of Legal Consequences of the Separation of the Chagos Archipelago (above note 15) and its contribution towards erga omnes. At the time of the writing of this, contributions have been limited to blog posts. See, e.g. Marko Milanovic “ICJ Delivers Chagos Advisory Opinion, UK Loses Badly”, EJIL: Talk!, 25 February 2019 available at https://​www.ejiltalk.org/​icj-​delivers-​chagos-​ advisory-​opinion-​uk-​loses-​badly/​(accessed 31 October 2020); Eggett and Thin (above note 25); Sterio (above note 25). Barcelona Traction (above note 10), at para. 33.

200 Bradley shareholders in the Barcelona Traction Company.33 Barcelona Traction was a Canadian company that had its headquarters in Spain.34 Damages were allegedly suffered owing to infractions of international law committed by the Spanish State.35 The case thus concerns diplomatic protection of foreign nationals under international law.36 The central legal question that the case posed is whether or not a State that allowed into its territory foreign investment could assume an obligation for the treatment of foreign nationals who invested on the basis of general international law.37 The Court found the case to be inadmissible.38 Paragraphs 33 and 34 of Barcelona Traction inform the understanding of the notion “obligations erga omnes” that has become known as the Barcelona Traction dictum. Paragraph 33 reads: [A]‌n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-​à-​vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.39 In this paragraph the icj establishes a legal construct that departs from traditional bilateral obligations between States by transforming its nature so that inherently it concerns all States and it names this construct “obligations erga omnes”.40 The icj expounds on the meaning of obligations erga omnes by juxtaposing the notion to bilateral obligations.41 The difference between bilateral obligations and obligations erga omnes, as explained by the icj, is that States owe erga omnes obligations to the international community as a whole.42 The icj confirms that the inherent nature of obligations erga omnes indeed 33 34 35 36 37 38 39 40 41 42

Id., at para. 1; For a discussion of the facts of the case and the contribution of the Barcelona Traction dictum towards obligations erga omnes, see Ragazzi “The Appearance of the Concept of Obligations Erga Omnes” (above note 11), at 1–​5. Ibid. Ibid. Id., para. 46. Id., para. 32. Id., at paras. 101–​103. Id., at para. 33. Ibid. Ibid. Ibid.

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is that which makes it the concern of all States, as the rights and obligations involved are so important that all States can be held to have a legal interest in their protection.43 This confirmation refers to the “secondary nature” of obligations erga omnes as rules of international law in that primary norms are the rules under international law that impose particular obligations on States.44 An example of a primary rule of international law that establishes erga omnes obligations is the prohibition on States to commit acts of slavery.45 Secondary norms of international law are norms that are “concerned with determining the consequences of a failure to fulfil obligations established by the primary rules”.46 A consequence of failing to adhere to primary rules is the activation of international responsibility. The differentiation between primary and secondary norms is explained by one scholar in the following terms: “The ‘primary/​secondary’ norm distinction denotes the existence of a normative function-​type differentiation from the system as a ‘whole’, categorizing international rules according to their normative operation in the context of state responsibility analysis”.47 Taking as an example the prohibition on slavery, this differentiation indicates that if a State commits an act of slavery, the breach of the primary norm then triggers the secondary rules of international law which, in the case of slavery, would be erga omnes obligations that entail that all States may invoke state responsibility for such an infraction. In this regard, Article 1 of the Articles on State Responsibility determines that a breach of international law triggers the international responsibility of a State. In relation to the Barcelona Traction case the content of paragraph 33 has been interpreted as identifying two characteristic features of obligations erga omnes.48 The first characteristic is universality as erga omnes is binding on all States without exception,49 and the second characteristic is solidarity.50 The 43 44 45

46 47 48 49 50

Ibid. Anastasios Gourgourinis “General/​Particular International Law and Primary/​Secondary Rules: Unitary Terminology of a Fragmented System” (2011) 22 European Journal of International Law 993, at 1016. The prohibition of slavery is employed as example as it is a norm of jus cogens and also has erga omnes effects. See Barcelona Traction (above note 10), at para. 34 where slavery is listed as an example of erga omnes norms. See further Annex to Draft Conclusions on Peremptory Norms (above note 5),, which includes the prohibition of slavery in the non-​ exhaustive list of examples of jus cogens norms. Gourgourinis (above note 44), at 1016. Ibid. Ragazzi “The Appearance of the Concept of Obligations Erga Omnes” (above note 11), at 17. Ibid. Ibid.

202 Bradley abstract noun “universality” indicates a quality or state of being universal,51 which term is defined as “including or covering all or a whole collectively or distributively without limit or exception”.52 “Universality” is synonymous with “totality” and “all-​inclusiveness”.53 The application of the term is satisfied in that “all States” as a collective have a legal interest in the observance of obligations erga omnes. The term “solidarity” means “agreement in interest”.54 Paragraph 33 of the Barcelona Traction judgment explains that it is the prominence of the rights involved that affords all States a legal interest in the protection of erga omnes obligations. The erga omnes effect has been described as giving rise to “a generality of standing –​amongst all States bound by those rules to make claims in the event of a violation”55 and involving corresponding rights and obligations as well as rights of protection.56 With regard to the first dimension of this effect, as is the case with ordinary international law rules, every erga omnes rule has an inherent series of rights and corresponding obligations.57 Such rights and obligations establish the bilateral relationship between the States subject to the rule in question.58 The second dimension in respect of obligations erga omnes is that each State has a corresponding “right of protection” which one author explains as follows: [E]‌ach State not only has rights and obligations with respect to the substantive content of the rule, giving rise to state responsibility vis-​à-​vis injured States in the event of a violation but it is also subject to a series of additional, bilaterised rights and obligations. The additional rights enable it to make claims against any State which is bound by and violates the substantive rule, while the additional rights enable it to make claims against any State which is bound by and violates the substantive rule, while the additional obligations require that it not violate that same substantive rules in its relations with any other similarly bound State.59 51

Merriam Webster Online Dictionary “universality” available at https://​www.merriam-​ webster.com/​dictionary/​universality?src=search-​dict-​box (accessed 18 April 2020). 52 Merriam Webster Online Dictionary “universal” available at https://​www.merriam-​ webster.com/​dictionary/​universal (accessed 18 May 2020). 53 Mary O’Neill and Elspeth Summers Collins English Thesaurus (HarperCollins, 2015), at 907. 54 Id., at 765. 55 Byers (above note 26), at 230. 56 Id., at 232. 57 Ibid. 58 Ibid. 59 Id., at 232–​33.

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This author summarises the explanation above as demonstrating that the creation of erga omnes is a “two-​step process”: First the rule is created and after that follows the formation of rights and obligations that are bilateral which process grants standing in the event of any violation whatsoever on any of the States that are subject to the rule created.60 This interpretation is aligned to Article 48(1)(b) of the ilc’s Articles on State Responsibility which determines that any State, other than the injured State, may invoke the international responsibility of the State in breach of an obligation if the nature of the obligation in question is such that it is owed to “the international community as a whole”.61 The wording of Article 48(1) (b) refers to erga omnes obligations.62 This imposition differs from the form of international responsibility triggered on a bilateral level by the injured State against the responsible State, which is the traditional position as provided for in Article 42(a) of the Articles on State Responsibility.63 Therefore, if an erga omnes obligation is breached, then States other than the directly injured party may invoke State responsibility and, in turn, that invocation triggers the initiation of what has been nominated a two-​step process.64 In this regard paragraph 33 of the Barcelona Traction judgment by the icj contrasts the notion of erga omnes obligations with bilateral state obligations which under traditional international law arise in the relations between two States on a bilateral level.65 For example, this bilateral relationship refers to a situation when, as a consequence of the bilateral relationship, State responsibility is triggered in respect of the State responsible for a breach of the bilateral obligation and the State which suffers damage.66 In the Barcelona Traction 60 61

62 63 64 65 66

Id., at 233. See also De Wet “Invoking Obligations Erga Omnes” (above note 7), at 3–​9. 48(1) of the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10)(2001), Chapter iv, which reads: “Any state other than an injured state is entitled to invoke the responsibility of another state in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that state, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole”. (emphasis added). For a discussion of the drafting history and interpretation of Article 48, see James Crawford The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge, 2005), at 276–​80. Article 42(1) of the Articles on Responsibility of States for Internationally Wrongful Acts (above note 61), which reads: “A state is entitled as an injured state to invoke the responsibility of another state if the obligation breached is owed to: (a) that state individually”. This corresponds to the two-​step process explained by Byers (above note 26), at 233. Barcelona Traction (above note 10), at para. 33. See Hennie Strydom International Law (Oxford, 2020), at 123. Strydom explains that obligations erga omnes are the opposite of what he considers “conventional position in

204 Bradley dictum the icj refers as an example to the bilateral obligations between Belgium and Spain in the domain of diplomatic protection in the case before it.67 It further contextualises this bilateral relationship in the context of law enforcement by citing its earlier Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations.68 In the Reparations for Injuries Suffered Advisory Opinion the icj elaborated two suppositions that need to be established prior to claiming a breach of diplomatic immunity at a bilateral level.69 First, the injured state must show that the defendant state breached an obligation towards the national state in respect of the injured state’s nationals; second, only the party to whom the international obligation is due can bring a claim in respect of such a breach.70 A scholarly opinion contemplates the interpretation that breaches of a bilateral nature are limited to situations in which performance in terms of the obligations involved relates to individual States regardless of whether such an obligation derives from a multilateral treaty or customary international law.71 She labels such obligations as “bundles of bi-​lateral obligations” and offers as an example Article 22 of the Vienna Convention on Diplomatic Relations.72 Article 22 concerns the inviolability of the Diplomatic Mission. The agents of the receiving state may not enter the diplomatic mission without the consent of the head of the mission.73 Even though this rule is derived from a multilateral treaty or has customary status the obligation imposed is bilateral in nature as the receiving state owes the obligation to the sending state alone. In the event of a breach the international responsibility of the receiving state will be triggered and only the sending state will have standing. This situation is a prime example of a violation in which non-​injured States do not have a direct legal interest, and this circumstance certainly does not affect the international community as a whole. In essence three conclusions are to be drawn from the Barcelona Traction dictum. First, the notion of obligations erga omnes as is developed in this

67 68 69 70 71 72 73

international law according to which international law obligations are usually owed by States to each other with each one only individually entitled to invoke a breach as basis for State responsibility”. Barcelona Traction (above note 10), at para. 33. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, icj Reports 1949, 174, at 181–​82. Ibid. Ibid. De Wet “Invoking Obligations Erga Omnes” (above note 7), at 14. Art 22 of the 1963 Vienna Convention on Consular Relations. Ibid.

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judgment concerns standing; as such it represents a concept of state responsibility and is a departure from “traditional” or pre-​Barcelona Traction usage among international law scholars.74 Erga omnes obligations arise as a consequence of a breach of substantive primary norms that are so important that their observance concerns the entire international community. Erga omnes, therefore, concerns secondary rules of international law and falls in the international responsibility paradigm. Second, the icj makes a clear distinction between bilateral obligations and obligations erga omnes in order to give content to the construct, and explains that owing to the nature of rules or norms of an erga omnes obligation character, other States (outside the bilateral relationship) may be able to invoke state responsibility as these norms are in the interests of all States.75 Third, obligations erga omnes have a universal dimension owing to the fact that they concern the international community as a whole.76 Case Concerning East Timor (1995) and the Application of the Genocide Convention Judgment (Croatia v Serbia) (2015) The Case Concerning East Timor relates to the right of peoples to self-​ determination.77 The States involved in the case are Portugal, Australia and Indonesia,78 the latter being a non-​member state of the icj.79 Portugal filed a claim against Australia at the registrar of the icj and alleged that Australia had neglected to observe its legal obligation to respect the duties and powers of Portugal as the administering authority in East Timor and, consequently, Portugal alleged that Australia impeded the right of the people of East Timor to self-​determination.80 According to Portugal these alleged infractions by Australia triggered its international responsibility to the people of East Timor as well as to Portugal in its capacity as the administering authority in East Timor.81 Australia questioned the authority of the icj to adjudge the issue and declared that the Court lacked jurisdiction over the matter.82 It pointed out that a third state, Indonesia, had an interest and Australia raised an 2.2

74 For examples of traditional pre-​ Barcelona Traction usages, see Tams “Enforcing Obligations Erga Omnes in International Law” (above note 11), at 103–​106; Ragazzi “Selected Prefigurations of the Concept of Obligations Erga Omnes” (above note 11), at 18. 75 Strydom (above note 66), at 123. 76 Ragazzi “The Appearance of the Concept of Obligations Erga Omnes” (above note 11), at 17. 77 Case Concerning East Timor (above note 9). 78 Id., at para. 1. 79 Id., at para. 20. 80 Id., at para. 1. 81 Ibid. 82 Ibid.

206 Bradley objection that the dispute was misplaced and that Portugal should have sued Indonesia and that, therefore, Portugal’s claims against Australia were artificial.83 However, Indonesia did not accept the compulsory jurisdiction of the icj under Article 36(2) of the icj Statute.84 Although the Court considered the argument that there was a dispute between Portugal and Australia, it had to consider the rights and duties owed to Indonesia and decide if it could proceed in the absence of Indonesia’s consent to its jurisdiction.85 In its reasoning concerning whether or not the Court could adjudicate the matter in the absence of Indonesia’s consent, the icj took into consideration whether the fact that the substantive legal questions related to an alleged breach of an erga omnes norm provided an alternative jurisdictional basis for the matter before it: [T]‌he Court considers that the erga omnes character of a norm and the rule of consent to jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.86 In paragraph 29 cited above the icj explains that the erga omnes character of a norm does not replace the need for a non-​member State to consent to the jurisdiction of the Court before the Court may adjudicate a legal question that concerns such a State.87 Therefore, the erga omnes nature of a norm does not trump the jurisdictional requirements under the icj Statute.88 In East Timor the icj gave effect to this form of the interpretation of erga omnes norms and the rules of jurisdiction of the Court and found that in the absence of Indonesia’s consent, the Court could not rule on the lawfulness of Indonesia’s conduct.89 Accordingly, the erga omnes nature of an obligation in itself does not burden a non-​State party to a court to accept its jurisdiction.90 Although the norm in question was of an erga omnes nature, the icj ruled that the Court 83 84 85 86 87 88 89 90

Id., at para. 11. For an overview of the historic ties between Indonesia and East Timor see paras 11–​18. Id., at para. 21. Id., at paras. 22 and 23. Id., at para. 29. Id., at para. 29. Ibid. Ibid. De Wet “Invoking Obligations Erga Omnes” (above note 7), at 14.

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could adjudicate over the lawful nature of conduct by a state only if the State specifically consented to its jurisdiction.91 In the Application of the Genocide Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) of 2015, the icj confirmed its earlier decision in the East Timor case.92 It confirmed that the erga omnes nature of a norm and the rule of consent to jurisdiction are two different objects and that the erga omnes status of the norms at issue before the Court in itself does not give the icj jurisdiction.93 In this case Croatia lodged a dispute against Serbia alleging that Serbia had committed genocidal acts and consequently violated its obligations under the Convention on the Prevention and Punishment of the crime of Genocide.94 The alleged violations had transpired between 1991 and 1995.95 Serbia contended that it could not be held responsible for breaches that were the result of the break-​up of the Socialist Federal Republic of Yugoslavia (sfry) and the situation in Croatia itself.96 The case at hand chiefly concerned events that took place on the territory of the Republic of Croatia as it existed within the sfry.97 The sfry became a party to the Genocide Convention only on 27 April 1992 and Serbia argued that as the majority of the alleged crimes were committed before this date, the allegations fell outside the scope of Article ix of the Genocide Convention.98 In consideration of applicable law and the possible consequences of the classification of the crime of genocide as being erga omnes, the icj explained that in respect of the commission of the crime of genocide its jurisdiction derives from article ix of the Genocide Convention and is not in consequence of erga omnes obligations inherent to the prohibition of the commission of genocide99 and, 91 92 93

94 95 96 97 98 99

Ibid. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) icj Reports 2015, p.3, at para. 88. Id. Quoting from the Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, icj Reports 2006, p. 6, at para. 64, the Court made the following declaration: “The Court observes, however, as it has already had occasion to emphasize, that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’, and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute”. Id., at para. 50. Ibid. Id., at para 52. For an overview of the Break-​up of the Socialist Federal Republic of Yugoslavia and the emergence of new States, see paras 53–​59. Id., at paras. 53-​59. Id., at para. 88. Ibid. (“Obligations are therefore confined to obligations arising under the Convention itself. Accordingly, where the Convention states an obligation which also exists under

208 Bradley therefore, the possible infraction of an obligation erga omnes is not sufficient to trigger the jurisdiction of the icj regardless of the fact that both parties before it consent to its jurisdiction. Key to this contribution to the discussion afforded by the Case Concerning East Timor as well as the Application of Genocide Convention (Croatia v Serbia) judgment is that that while erga omnes bestows standing, it does not establish jurisdiction. 2.3 The Chagos Archipelago Advisory Opinion (2019) On 25 February 2019 the icj issued an Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.100 A brief summary of the facts is offered to provide context. In 1968 Mauritius was granted independence following the separation of the Chagos Archipelago from its territory.101 On 22 June 2017 the General Assembly of the United Nations (unga) adopted Resolution 71/​292 in which it requested the icj under article 96 of the UN Charter102 and article 65 of the Statute of the International Court of Justice to render an advisory opinion on two legal questions.103 The first related to the process of decolonisation in respect of Mauritius and questioned whether the process had been finalised by the United Kingdom in accordance with the applicable rules of international law at the time.104 The second question has direct relevance to this discussion as it

1 00 101

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customary international law, the treaty obligation and the customary law obligation remain separate and distinct … unless a treaty discloses a different intention, the fact that the treaty embodies a rule of customary international law will not mean that the compromissory clause of the treaty enables disputes regarding the customary law obligation to be brought before the Court”.). Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 1. Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at 7, para. 1(a). The first question is formulated as follows: “(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (xv) of 14 December 1960, 2066 (xx) of 16 December 1965, 2232 (xxi) of 20 December 1966 and 2357 (xxii) of 19 December 1967?” Id., at para. 1. Ibid. Id., 7 para 1(a). The legal question was formulated as follows: “(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (xv) of 14 December 1960, 2066 (xx) of 16 December 1965, 2232 (xxi) of 20 December 1966 and 2357 (xxii) of 19 December 1967?”

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presented the icj with the task of determining the consequences under international law of the continued administration of the Chagos Archipelago by the United Kingdom, as well as the consequences arising from the inability of Mauritius to fulfil a resettlement programme on the Chagos archipelago of its nationals, especially those of Chagossian descent.105 This case relates to the right to self-​determination and the consequences of a breach of the right.106 In addressing the second question, the icj confirmed that the right to self-​ determination produced an obligation erga omnes.107 The icj referred to its earlier decisions in respect of East Timor108 and Barcelona Traction109 in order to emphasise that it is owing to the erga omnes nature of the right that all States share a legal interest in its protection.110 It is arguably also the erga omnes character of the right to self-​determination that warrants the icj to request that all States co-​operate with the United Nations (UN) to ensure that the decolonisation process of Mauritius is completed.111 Prior to the Chagos Archipelago Advisory Opinion the icj had not addressed the consequences of a violation of an erga omnes obligation and, moreover, had not demonstrated how the erga omnes principle operates in the event of a breach.112 The icj’s response in paragraphs 180 and 182 of its Advisory Opinion may be construed as contributing to ending its previous silence on the issue of demanding state co-​operation as a consequence of erga omnes. Paragraph 180 reads: Since respect for the right to self-​determination is an obligation erga omnes, all States have a legal interest in protecting that right. The Court considers that, while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonisation of Mauritius, all member States must co-​operate with the United Nations to put those modalities into effect. As recalled in the Declaration on the 105 Ibid. The question is formulated as: “(b) What are the consequences under international law, including obligations reflected in the above-​mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?” 106 Ibid. 107 Id., at para. 180. 108 Case Concerning East Timor (above note 9), at para. 29. 109 Barcelona Traction (above note 10), at paras. 33 and 34. 110 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 180. 111 Id., at para. 182. 112 Id., at para. 214.

210 Bradley Principles of International Law Concerning Friendly Relations and Co-​ operation among States in accordance with the Charter of the United Nations: “Every state has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-​determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle”.113 Paragraph 182 states as follows: In response to Question (b) of the General assembly, relating to the consequences under international law that arise from the continued administration by the United Kingdom of the Chagos Archipelago, the Court concludes that the United Kingdom has an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States must co-​operate with the United Nations to complete the decolonization of Mauritus.114 Some scholars consider that the drafting of paragraph 180 invites confusion115 and specifically argue that the interpretation is incorrect in proposing that it is the erga omnes nature of the obligation that creates a binding obligation on all States to co-​operate with the UN in the decolonisation of Mauritius.116 These scholars maintain that a legal obligation to cooperate in finalising the decolonisation of Mauritius is not a generally accepted function of obligations erga omnes117 and they insist that the “sole consequence of characterising an obligation as erga omnes is the generation of a right of standing of all States”.118 This argument, however, is contradicted by other scholars who argue that there is a possibility that paragraph 180 indeed can be interpreted to reflect that the icj recognises a new and additional consequence of the breach of an obligation erga omnes which entails generating an obligation on States to cooperate in the realisation of the correlative right.119 One such scholar’s evaluation relies 113 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 180. 114 Id., at para. 182. Emphasis added. 115 Eggett and Thin (above note 25), at 2. 116 Ibid. 117 Ibid. 118 Ibid. 119 Id., at 3.

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on the literal meaning of the text.120 The confusion generated by paragraphs 180121 and 182122 of this decision calls for closer scrutiny. The instructive phrase in paragraph 180 of the Chagos Island Advisory Opinion reads: “Since respect for the right to self-​determination is an obligation erga omnes, all States have a legal interest in protecting that right”.123 The verb “have” indicates “to cause or command to do something”124 and asserts a positive obligation; in this context the verb “have” arguably establishes a degree of permission as a result of which the icj indicates that it is a possibility that “all States” have a legal interest in the protection of erga omnes obligations. In Chagos, the language seemingly is unambiguous commanding States to respect the legal interest in protecting erga omnes obligations, here specifically the right to self-​determination.125 Such a reading corresponds with the intention in 120 Marko Milanovic writes in his blog post that “[t]‌he Court noted that all UN member States must cooperate to finalize the decolonization of Mauritius (para. 180), since self-​ determination is an obligation erga omnes, and that the ga must ensure the protection of the human rights of the expelled Chagossians (para. 181). The ‘all States’ obviously includes the United States re Diego Garcia and all”; Milanovic (above note 31). 121 Since respect for the right to self-​determination is an obligation erga omnes, all States have a legal interest in protecting that right, in this regard, see para.29 of the Case Concerning East Timor (above note 9); see also Barcelona Traction (above note 10), at paras. 32 -​33. The Court considers that, while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonisation of Mauritius, all member States must co-​operate with the United Nations to put those modalities into effect. As recalled in the Declaration on the Principles of International Law Concerning Friendly Relations and Co-​operation Among States in accordance with the Charter of the United Nations: “Every state has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-​determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle” , See Declaration of Principles of International Law Concerning Friendly Relations and Co-​Operation Among States in Accordance with the Charter of the United Nations, Annexed to UN General Assembly Resolution 2626 (xxv). 122 In response to Question (b) of the General Assembly, relating to the consequences under international law that arise from the continued administration of the Chagos Archipelago by the United Kingdom, the Court concludes that the United Kingdom has an obligation to bring to an end to its administration of the Chagos Archipelago as rapidly as possible, and that all member States must co-​operate with the United Nations to complete the decolonisation of Mauritius. 123 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 180. 124 Merriam Webster Online Dictionary “have” available at https://​www.merriam-​webster. com/​dictionary/​have?src=search-​dict-​box (accessed 9 June 2020). 125 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 180.

212 Bradley paragraph 182 of the Chagos Advisory Opinion where the icj states that there is a duty on all member States to co-​operate with the UN in facilitating the decolonisation of Mauritius.126 This literal interpretation, however, is inconclusive as this is an advisory opinion and consequently is not subject to the same rules of interpretation as, for example, a treaty. This section now turns to available state practice that might shed some light on the question of whether or not States have a duty to co-​operate to aid the enforcement of rights of an erga omnes character. In a Separate Opinion, Judge Cançado Trindade J highlights selected written submissions received from States with regard to support for the jus cogens nature of the fundamental right to self-​determination and the erga omnes obligations which arise from jus cogens in the course of the advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.127 The submissions of the African Union and Kenya alone commented on the consequences of erga omnes and are in agreement with an interpretation that States have a duty to enforce rights of an erga omnes character.128 According to the African Union (au) the erga omnes character of the right to self-​determination “entails a corresponding duty on the part of all States and international organisations “to enforce” the fundamental right to self-​determination”.129 The opinion of Kenya supports this understanding of the erga omnes effect of the right to self-​determination. In the view of Kenya “the right of peoples to self-​determination rests in the domain of jus cogens, and entails a corresponding duty erga omnes, on the part of all States to the international community as a whole, to enforce this right”.130 Judge Julia Sebutinde J in her Separate Opinion concurs131 and confirms that “[s]‌ince the obligation 126 Id., at para. 182 concludes by providing an answer to the second question the icj was tasked to answer. 127 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), Separate Opinion Judge Cançado Trindade, at para. 129. 128 Id., at para. 142; The Republic of Kenya’s Oral Statement in Respect of the Request for the Advisory Opinion on The Legal Consequences of the Separation of the Chagos Archipelago (above note 15); The African Union’s Written Statement in Respect of the Advisory Opinion on The Legal Consequences of the Separation of the Chagos Archipelago (above note 15) 1 March 2018 accessed 2 October 2020. 129 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 131; The African Union’s Written Statement (above note 128), at para. 69. 130 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), at para. 142; The Republic of Kenya’s Oral Statement (above note 128), at para. 25. 131 Legal Consequences of the Separation of the Chagos Archipelago (above note 15), Separate Opinion of Judge Sebutinde, at para. 50, “Since the obligation to respect the right to self-​determination, including the obligation to respect the territorial integrity of the

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to respect the right to self-​determination … is an obligation erga omnes, all States have an obligation to co-​operate to bring an end to the United Kingdom’s unlawful administration of the Chagos Archipelago”.132 Indeed, paragraph 180, read together with paragraph 182, seemingly suggests that a duty to cooperate is a consequence of obligations erga omnes and there is, albeit limited, state practice available to support this analogy. The icj has been criticised for underutilising the notion of “obligations erga omnes” in consequence of which it has been prevented from illustrating how this notion would respond to a breach based on the nature of the norm and the consequences that flow from such a violation. In considering whether the Chagos Archipelago Advisory Opinion provides clarity in respect of promoting a better understanding of the consequences of the notion of obligations erga omnes, this author affirms that it is a possibility. The discussion in this section proposes that it is likely that paragraphs 180 and 182 expand the previous scope of the consequences of obligations erga omnes in that States not only have a legal interest in the observance of a norm that is characterised as erga omnes but also have a duty to ensure that the breach is corrected. The reaction of member States of the UN in response to the General Assembly’s instructions concerning cooperation might be instructive in this regard. 2.4 The Nature of Erga Omnes Since the notion erga omnes was “deployed” initially in 1970 in the Barcelona Traction case, the icj has, to some extent, promoted a better understanding of the concept. A survey of icj case law reveals the following characteristics of obligations erga omnes: First, erga omnes forms part of the secondary rules of international law and relates to standing; second, erga omnes obligations operate above the bilateral level and enable all States to invoke State responsibility in the event of a breach since the observance of an obligation erga omnes is in the interests of the whole international community; and, third, the breach of an erga omnes obligation in itself does not automatically trigger the jurisdiction of the icj or other court or tribunal.

non-​self-​governing territory as a single unit, is an obligation erga omnes, all States have an obligation to co-​operate to bring an end to the United Kingdom’s unlawful administration of the Chagos Archipelago. Moreover, all States are under an obligation not to recognise as lawful the situation created by the United Kingdom’s continued administration of the Chagos Archipelago and not to render aid or assistance in maintaining the illegal situation”. 132 Ibid (emphasis added).

214 Bradley 3

The International Court of Justice and “Producing” Obligations Erga Omnes

Over the period of 50 years the icj identified and confirmed the obligations erga omnes nature of some rules of international law. It identified the following norms as obligations erga omnes: the prohibition of aggression;133 the prohibition of genocide;134 principles and rules concerning the basic rights of a human person, which specifically include the prohibition of slavery and racial discrimination;135 the right to self-​determination (1995);136 certain rules of international humanitarian law;137 and the prohibition of torture.138 These norms may be viewed as examples of the icj producing erga omnes. This part of the chapter looks at occasions when the icj identified erga omnes norms and further comments on missed opportunities for it to have done so. Section 3.1 revisits the Barcelona Traction case which not only is synonymous with the concept of obligations erga omnes but also provides examples of norms. The fact that the examples listed are also of a jus cogens nature is commented on briefly. Section 3.2 elaborates on the possible erga omnes nature of certain rules of international humanitarian law and section 3.3 touches on a possible missed opportunity the icj had to elaborate on the erga omnes character of certain rules of international environmental law in the Case Concerning the Gabcikovo-​Nagymaros Project.139

1 33 Barcelona Traction (above note 10), at para. 34. 134 Ibid; Case Concerning Armed Activities on the Territory of the Congo (above note 93), at para. 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) Preliminary Objections, icj Reports 1996, p.595, at paras. 31 and 147; Application of Genocide Convention (Croatia v Serbia) (above note 92), at para. 85. 135 Barcelona Traction (above note 10), at para. 34. 136 Case Concerning East Timor (above note 9), at para. 29. See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2004, p. 136, at para. 155. 137 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Reports 1996, p. 226, at para. 79. 138 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), icj Reports 2012, 422, at paras. 68-​69. 139 Case Concerning the Gabčikovo-​Nagymaros Project (Hungary v Slovakia), icj Reports 1997, p.7.

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Barcelona Traction and the First Examples of Obligations Erga Omnes In the Barcelona Traction dictum the icj offered an open list of international law norms from which erga omnes obligations derive,140 namely, acts of aggression and genocide and principles and rules concerning the basic rights of a human person which specifically include the right to be free from slavery and racial discrimination.141 The icj on several occasions has confirmed the erga omnes nature of these rules. The norms identified as jus cogens are the prohibition of aggression, the prohibition of genocide, the prohibition of crimes against humanity, the basic rules of international humanitarian law, the prohibition of racial discrimination and apartheid, the prohibition of slavery, the prohibition of torture and the right to self-​determination.142 A comparison between these norms and norms that impose erga omnes obligations as identified by the icj in the Barcelona Traction case and subsequent case law143 confirms that all the norms the icj considers to be of characteristic of erga omnes are also jus cogens.144 Scholars interpret the Barcelona Traction dictum as indicating that jus cogens has erga omnes effects.145 Although the Court did not refer specifically to jus cogens in Barcelona Traction, the examples listed arguably already achieved jus cogens status at the time of the Barcelona Traction case.146 3.1

140 Barcelona Traction (above note 10), at para. 34: “Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law […]; others are conferred by international instruments of a universal or quasi-​universal character”.. 141 Barcelona Traction (above note 10), at para. 34. 142 Annex to the Draft Conclusions on Peremptory Norms (above note 45). 143 Barcelona Traction (above note 10), at para. 34; Case Concerning Armed Activities on the Territory of the Congo (above note 93), at para. 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (above note 134), at paras. 31 and 147; Application of Genocide Convention (Croatia v Serbia) (above note 92), at para 85; Case Concerning East Timor Judgment (above note 9), at para. 29. See also Legal Consequences of the Construction of a Wall (above note 136), at para. 155; Legality of the Threat or Use of Nuclear Weapons (above note 137), at para. 79; Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (above note 138), at paras. 68-​69. 144 Draft Conclusion 23 of the Draft Conclusions on Peremptory Norms (above note 45). 145 Strydom (above note 66), at 124; De Wet “Invoking Obligations Erga Omnes” (above note 7), at 9. 146 Byers (above note 26), at 230.

216 Bradley It is regrettable the icj did not suggest a methodology underlying the identification of certain norms as erga omnes which would assisted in gaining a deeper understanding of the formation and manifestation of such norms. By not explaining why it comes to the conclusion that certain norms are erga omnes in nature, the icj possibly missed an opportunity to shed light on the difference between the formation of erga omnes norms and those that are jus cogens. Construction of a Wall, International Humanitarian Law and Obligations Erga Omnes The matter of the Advisory Opinion on the Construction of a Wall arose after the unga had submitted a request to the icj to issue an advisory opinion on the legal consequences arising from the construction of a wall by Israel in the Occupied Palestinian Territory.147 The icj declared that the construction of the wall by Israel was an infraction of international law, in general, and international humanitarian law, in particular.148 It confirmed that certain rules of international humanitarian law incorporate obligations that are of an erga omnes character.149 Basing its deduction on the formulation of paragraph 79 of the Nuclear Weapons Advisory Opinion, the Court made the following observation: 3.2

With regard to international humanitarian law, the Court recalls that in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons it stated that ‘a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and elementary considerations of humanity’ … that they are ‘to be observed by all States whether or not they have ratified the conventions

147 Illegal Israeli actions in Occupied East Jerusalem and the Rest of Occupied Palestinian Territory General Assembly Resolution es/​10/​14 (2003); Legal Consequences of the Construction of a Wall (above note 136), at para. 1. For a discussion, see Andrea Bianchi “Dismantling the Wall: The ICJ’s Advisory Opinion and Its Likely Impact on International Law” (2004) 47 German Yearbook of International Law 343. The legal question raised by the Court was cited in paragraph 66 of the Wall Opinion: “The Court recalls that the question [before it] is: ‘What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the 12th report of the Secretary-​General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?’ ”. 148 See Legal Consequences of the Construction of a Wall (above note 136), at paras. 163. 149 Id., at para. 157. See also Bianchi (above note 147), at 343.

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that contain them, because they constitute intransgressible principles of international customary law’. … In the Court's view, these rules incorporate obligations which are essentially of an erga omnes character.150 In the Construction of the Wall Advisory Opinion the icj considered that violations of certain rules of international humanitarian law have an erga omnes effect and obligations have to be observed by all States as a result of the inherently fundamental nature of the norms protected by these rules.151 The erga omnes effect of certain rules of international humanitarian law was declared by the icj as early as 1996 in the Nuclear Weapons Advisory Opinion and is confirmed in the Construction of the Wall Advisory Opinion.152 The inclusion by the icj of “a great many” international humanitarian law rules as having an obligations erga omnes effect in the Construction of the Wall Advisory Opinion has been well received.153 Unfortunately, the icj did not elaborate on which rules of international humanitarian law it considers to be of an erga omnes nature. This section now offers examples of ihl norms that arguably are included in these “great many rules” of international humanitarian law. This discussion is brief and is limited to the contributions by the icj only, as an extensive interrogation of these norms falls outside the scope of this contribution. In 1984 the International Court of Justice in its Military and Paramilotary Activities judgment confirmed the customary status of Common Article 3 to the Geneva Conventions.154 A close examination of the wording included in paragraph 218 of the Nicaragua judgment and of the formulation of paragraph 157 of the Construction of a Wall Advisory Opinion furthermore confirms the 1 50 Legal Consequences of the Construction of a Wall (above note 136), at para. 157. 151 Ibid. 152 Ibid. For a discussion of this case see Bianchi “Dismantling the Wall” (above note 147), at 378–​383. 153 Laurence Boisson de Chazournes and Luigi Condorelli “Common Article 1 of the Geneva Conventions Revisited: Protecting Collective Interests” (2000) 82 International Review of the Red Cross 67; Marco Longobardo “The Contribution of International Humanitarian Law to the Development of the Law of International Responsibility Regarding Obligations Erga Omnes and Erga Omnes Partes” (2018) 23 Journal of Conflict and Security Law 12; Marco Sassòli International Humanitarian Law: Rules, Controversies and Solutions to Problems Arising in Warfare (Edgar Elgar UK, 2019) 91; See para 141 of the 2017 Commentary to the Geneva Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949 (Article 1: Respect for the Convention) at para 141>. 154 As has generally been accepted and, furthermore, confirmed by the icj in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States), Merits, icj Report 1986, p.14, at para. 218; Crawford (above note 62).

218 Bradley erga omnes nature of the norms included in Common Article 3. Paragraph 218 of the Nicaragua judgment reads: Article 3 which is common to al1 four Geneva Conventions of 12 August 1949 defines certain rules to be applied in the armed conflicts of a non-​ international character. There is no doubt that, in the event of international armed conflicts, these rules also constitute a minimum yardstick, in addition to the more elaborate rules which are also to apply to international conflicts ; and they are rules which, in the Court's opinion, reflect what the Court in 1949 called "elementary considerations of humanity".155 The icj emphasised that the rules included in Common Article 3 “constitute a minimum yardstick” and reflect “elementary considerations of humanity”.156 It is clear that Common Article 3 qualifies as fulfilling erga omnes in terms of rules of international humanitarian law introduced in Nuclear Weapons Advisory Opinion and confirmed by Construction of the Wall Advisory Opinion as being “so fundamental to the respect of the human person and elementary considerations of humanity” that they are “intransgressible”.157 Though, perhaps, it was not the intent of the icj to produce examples of erga omnes obligations under international humanitarian law in the Nicaragua judgment, it did so by confirming the erga omnes status of the customary international humanitarian law norms first codified in Common Article 3. These norms promote the humane treatment of civilians not party to the conflict as well as of participants rendered hors de combat; it offers these categories limited judicial protection and obliges all parties to the armed conflict to collect and care for the wounded and sick.158 Paragraph 218 of the Nicaragua judgment, furthermore, is widely accepted to confirm the jus cogens nature of the norms inherent in Common Article 3.159 This level of acceptance serves as further evidence of the erga omnes nature of the customary international humanitarian norms included in Common Article 3 as a result of the relationship between jus cogens and erga omnes. 155 Military and Paramilitary Activities in and Against Nicaragua (above note 154), at para. 218. Emphasis added. 156 Ibid. Andrew Clapham, Poala Gaeta & Marco Sassòli (eds.) The 1949 Geneva Conventions: A Commentary (Oxford, 2015), at 513. 157 Compare Nicaragua (above note 154) at para. 218 with Legal Consequences of the Construction of a Wall (above note 136), at para. 157 and Legality of the Threat or Use of Nuclear Weapons (above note 137), at para. 79. 158 Common Article 3 to the 1949 Geneva Conventions. 159 Clapham, Gaeta & Sassòli (eds.) (above note 156), at 513.

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Draft Conclusion 17 of the ilc’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens) confirms that jus cogens norms have erga omnes effects, in other words, that they give rise to obligations erga omnes.160 By analogy, the norms of international humanitarian law considered to have jus cogens status also are erga omnes in nature. Draft Conclusion 23 of the ilc’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens) provides a non-​exhaustive list of norms that in the past the International Law Commission referred to as having jus cogens status.161 This list includes the basic rules of international humanitarian law.162 Consequently, the basic rules of international humanitarian law have both jus cogens and erga omnes status. There are scholars that are of the opinion that the norm to ensure respect for international humanitarian law inherent in Common Article 1 to the Geneva Conventions is erga omnes in nature;163 others refute this idea.164 Some authors however regard Common Article 1 as being both erga omnes and erga omnes partes.165 One scholar problematises the issue and questions the nature of the content and scope of the obligation to ensure respect for international humanitarian law as contained in Common Article 1 in the following manner: Does the obligation to ensure respect require states to react to each and every violation or infringement, or only to certain (serious) breaches of fundamental provisions in the Geneva Conventions? And how does Common Article 1 relate to the concept of obligations erga omnes (partes)? After all, in the past, Common Article 1 has, inter alia, been described 1 60 161 162 163

Draft Conclusion 17 of the Draft Conclusions on Peremptory Norms (above note 5). Annex to the Draft Conclusions on Peremptory Norms (above note 45). Ibid. Sassòli (above note 153), at 91; Clapham, Gaeta & Sassòli (eds.) (above note 156), at 123; Ragazzi “Selected Prefigurations of the Concept of Obligations Erga Omnes” (above note 11), at 152–​153; Longobardo (above note 153), at 12. 164 Verity Robson “Ensuring Respect for the Geneva Conventions: A More Common Approach to Article 1”, Opinio Juris,17 July 2020 available at http://​opiniojuris.org/​2020/​07/​17/​ ensuring-​respect-​for-​the-​geneva-​conventions-​a-​more-​common-​approach-​to-​article-​1/​ (accessed on 26 September 2020); Carlo Focarelli “Çommon Article 1 of the 1949 Geneva Conventions: A Soap Bubble?” (2010) 21 The European Journal of International Law 125, at 164–​170. 1 65 Théo Boutruche and Marco Sassòli “Expert Opinion on Third States Obligations vis-​à-​ vis ihl Violations under International Law, with a Special Focus on Common Article 1 to the 1949 Geneva Conventions” 17 –​19 accessed 2 October 2020.

220 Bradley as being itself erga omnes, as rendering erga omnes all other provisions contained in the Geneva Conventions, as having been a precursor of the concept of obligations erga omnes, and as a provision that simply has nothing to do with the conception of obligations erga omnes …166 In the Construction of the Wall Advisory Opinion the icj refers to Common Article 1,167 as does the icrc’s Customary International Humanitarian Law Study. Rule 144 of the icrc Study on Customary International Humanitarian Law168 can be summarized as misleading if interpreted as “Ensuring Respect for International Humanitarian Law Erga Omnes”.169 The substance of rule 144 does not expressly include the term erga omnes.170 It is true that this rule is the customary international law manifestation of Common Article 1 to the four Geneva Conventions.171 Common Article 1 stipulates that “[t]‌he High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.172 The rule of erga omnes in this context does not refer to erga omnes in the Barcelona Traction context but instead to obligations erga omnes partes.173 Erga omnes partes has a meaning different to erga omnes. Erga omnes partes or erga omnes contractantes concerns treaty obligations which are owed to member States to the same treaty.174 Erga omnes partes refers to the shared interest of the states to the same treaty with regard to respecting the rules included in the treaty to which they are party.175 The 2017 International Committee of the 166 See Robin Geiss “The Obligation to Respect and to Ensure Respect for the Conventions” in Clapham, Gaeta & Sassòli (eds.) (above note 156), 123. 167 See Legal Consequences of the Construction of a Wall (above note 136), at paras. 168 “Rule 144. Ensuring Respect for International Humanitarian Law Erga Omnes” accessed on 29 May 2020. 169 Ibid. Rule 144 states that “[s]‌tates may not encourage violations of international humanitarian law by parties to an armed conflict. They must exert their influence, to the degree possible, to stop violations of international humanitarian law”. This applies equally to both international and non-​international armed conflict. 170 Ibid. 171 Common Article 1 is common to all four the 1949 Geneva Conventions: Geneva Convention i for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the; Geneva Convention ii for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Geneva Convention iii Relative to the Treatment of Prisoners of War; Geneva Convention iv Relative to the Protection of Civilian Persons in Time of War. 172 For an elaboration of Common Article 1 of the 1949 Geneva Conventions, see De Chazournes and Codorelli (above note 153). 173 See Robin Geiss (above note 166), at 123. 174 Longobardo (above note 153), at 4. 175 Ibid.

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Red Cross (icrc) Commentaries to Article 1 of the Geneva Conventions confirms this assertion that Common Article 1 is erga omnes partes in nature.176 In the Construction of the Wall Advisory Opinion the icj highlights that Common Article 1 is erga omnes partes177 and did not say that Common Article 1 is erga omnes.178 It is the opinion of the author of this contribution that the conclusion that Common Article 1 is erga omnes cannot be based on the icj’s reasoning in the Construction of the Wall Advisory Opinion and the assertion that the norms inherent in Common Article 1 is erga omnes remains controversial. This section reveals that the icj made a valuable contribution in confirming the erga omnes nature of the basic rules of international humanitarian law. Unfortunately, the only examples of norms that are erga omnes in nature derive from the Nicaragua judgment. The Nicaragua judgment cements the erga omnes nature of the customary international humanitarian law norms initially codified in Common Article 3. Furthermore, the fact that the icj failed to provide examples of the rules it considered to be erga omnes in the Nuclear Weapons Advisory Opinion and the Advisory Opinion on the Construction of a Wall might be considered as an opportunity missed; alternatively it can be argued that in respect of international humanitarian law not listing the basic rules offers greater protection as the basic rules of international humanitarian law may be interpreted more broadly. The next section considers whether certain norms of international environmental law also have an erga omnes effect. Gabčikovo-​Nagymaros, International Environmental Law and Erga Omnes In the 50 years after the Barcelona Traction case the icj has been silent on whether international environmental law norms impose erga omnes obligations. Even though the court made a valuable contribution in the development 3.3

176 “[t]‌he proper functioning of the system of protection provided by the Conventions demands that States Parties not only apply the provisions themselves, but also do everything reasonably in their power to ensure that the provisions are respected universally. The Conventions thus create obligation erga omnes partes, i.e. obligations towards all of the other High Contracting Parties”: “Rule 144” (above note 168). 177 Legal Consequences of the Construction of a Wall (above note 136), at para. 158. For a discussion of the Court’s approach, see Andrea Breslin “A Reflection on the Legal Obligation for Third States to Ensure Respect for IHL” (2017) 22 Journal of Conflict and Security Law 19; Longobardo (above note 153) 12: Jean-​Marie Henckaerts Çommon “Article 1: A Lynchpin in the System to Ensure Respect for International Humanitarian Law” accessed 26 September 2020. 178 Wording used in Legal Consequences of the Construction of a Wall (above note 136), at para. 158.

222 Bradley of international environmental law, for example in the Pulp Mills case,179 Nicaragua v Costa Rica180 and the Whaling case,181 none of the parties to these disputes at the time of adjudication specifically raised the possible erga omnes nature of relevant international environmental law norms before the icj.182 The Court, however, had an opportunity to engage with the nature of at least one international environmental law norm in the Gabčikovo-​Nagymaros case,183 as a party to the dispute specifically brought up the possible erga omnes nature of the no-​harm rule pursuant to the precautionary principle.184 This section therefore focuses on the Gabčikovo-​Nagymaros case. The Gabčikovo-​Nagymaros case arose from a disagreement between Hungary and Slovakia.185 Hungary and Czechoslovakia concluded a treaty “which provided for joint investment aimed at the utilization of the natural resources 179 Case Concerning Pulp Mills on the River Uruguay, (Argentina v Uruguay) Judgment on the Merits, icj Reports 2010, p. 14; For an elaboration of the icj’s contribution to the development of international environmental law, see José Justa-​Ruiz “The International Court of Justice and International Environmental Law” in N. Boschiero et al (eds) International Courts and the Development of International Law (T.M.C. Asser, 2013) 383, at 395 –​398. 180 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Merits, icj Reports 2015, p. 665; For a discussion of the contribution of this case towards the development of international environmental law see Pierre-​Marie Dupuy, Ginevra Le Moli and Jorge E Viñuales “Customary International Law and the Environment” Cambridge Centre for Environment, Energy and Natural Resource Governance (University of Cambridge, 2018) Working Papers 2018 (2), at 12–​13. 181 Whaling in the Antarctic (Australia and New Zealand (intervening) v Japan), Judgment, icj Reports 2014, p.226. 182 Some authors continue to argue that though these cases did not expressly raise the issue of erga omnes, that the court still can contribute to the classification of certain norms of international environmental law as either erga omnes in nature or not. However, other authors argue that apart from the Gabčikovo-​Nagymaros Project, the icj had an opportunity to engage with the possible erga omnes nature of other rules of international environmental law; such missed opportunities include the Whaling case. Priya Urs, for example, comments that in the Whaling case the icj missed an opportunity to comment on the whether there exists an erga omnes norm against whaling. The icj’s decision not to comment on the erga omnes nature of this norm could be owing to the fact that Japan had not challenged Australia’s locus standi in the case and therefore the icj had no reason to engage in expanding the content of obligations erga omnes in this specific case. See Priya Urs, “Are States Injured by Whaling in the Antarctic?” 14 August 2014 (accessed on 26 September 2020). 183 Gabčikovo-​Nagymaros Project (above note 139), at para. 15. 184 Id., at para. 97. 185 Id., at para. 15.

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of certain parts of the Danube river”.186 The treaty specifically provided that the parties must ensure that the quality of the water in the Danube was not impaired.187 By 1989 the project was under the scrutiny of the Hungarian public and, consequently, the Hungarian government decided to suspend work on the project pending the results of certain studies.188 Hungary gave notice to Czechoslovakia of an intention to terminate the treaty and in response Czechoslovakia began a project to dam the water of the Danube for its own usage.189 In 1993 Czechoslovakia separated and Slovakia became an independent territory.190 Hungary and Slovakia were unable to resolve the dispute themselves and turned to the icj. The case for the most part concerned treaty law but raised environmental considerations.191 In particular, the possible erga omnes character of specific rules of international environmental law was raised by Hungary.192 Hungary argued that the nature of the environmental law norm at stake precluded it from performance in accordance with the treaty.193 It asserted that the no-​harm rule pursuant to the precautionary principle had evolved into a norm that imposes erga omnes obligations.194 The icj did not decide on this issue.

1 86 Ibid. 187 Ibid. 188 Gabčikovo-​Nagymaros Project (above note 139), at para. 22. 189 Id., at para. 23. 190 Id., at para. 25. 191 See id., e.g. questions concerning the legal grounds for the termination of a treaty (paras. 27, 43) and questions concerning the impossibility of performance of a treaty and the threshold to be met to qualify as a “state of necessity” in order to terminate a treaty (paras. 49-​58). 192 Id., at para. 97: (“Finally, Hungary argued that subsequently imposed requirements of international law in relation to the protection of the environment precluded performance of the Treaty. The previously existing obligation not to cause substantive damage to the territory of another state had, Hungary claimed, evolved into an erga omnes obligation of prevention of damage pursuant to the ‘precautionary principle’. On this basis, Hungary argued, its termination was ‘forced by the other party’s refusal to suspend work on Variant Cm’. Slovakia argued, in reply, that none of the intervening developments in environmental law gave rise to norms of jus cogens that would override the Treaty. Further, it contended that the claim by Hungary to be entitled to take action could not in any event serve as legal justification for termination of the Treaty under the law of treaties, but belonged rather ‘to the language of self-​help or reprisals’ ”.). 193 Ibid. 194 Ibid.

224 Bradley In a separate opinion Judge Weeramantry, questioning whether it was correct to ignore the erga omnes character of the no-​harm rule, made the following observation: We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation. When we enter the arena of obligations that operate erga omnes rather than inter partes, rules based on individual fairness and procedural compliance may be inadequate. The great ecological questions now surfacing will call for further thought on this matter. International environmental law will need to proceed beyond weighing the rights and obligations of parties within a closed compartment of individual state self-​interest, unrelated to the global concerns of humanity as a whole. The present case offers an opportunity for such reflection.195 The author of this contribution agrees with Judge Weeramantry that the icj’s silence on the erga omnes nature of the no-​harm rule pursuant to the precautionary principle is a missed opportunity. Arguably, no further express invitation has arisen since this decision for the icj to respond to the possibility of international environmental law norms imposing erga omnes obligations. In the view of the author of this contribution the Court’s hesitation in engaging with the question of whether environmental law norms impose erga omnes obligations should be considered a missed opportunity but should not detract from the fact that the icj has made a valuable contribution to the development of international environmental law.196 195 Separate Opinion of Judge Weeramantry in the Gabčikovo-​Nagymaros Project (Hungary v Slovakia) (above note 139), at 115. 196 See for example Jorge E Viñuales “The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment” (2008–​2009) 32 Fordham International Law Journal 232, at 248–​258; Hsashi Owadda “International Environmental Law and the International Court of Justice” (2006) 2 Instum Aequum Salutare 5, at 5; Alessandra Lehmen “The Case for the Creation of an International Environmental Court: Non-​State Actors and International Environmental Dispute Resolution” (2015) 26 Colorado Natural Resources, Energy & Environmental Law Review 181, at 188 –​190; Christopher Greenwood “The Role of the International Court of Justice in the Global Community” (2011) 17 University of California, Davis 233, at

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3.4 Identification of Erga Omnes and Missed Opportunities Part three of this chapter illustrates that in the Barcelona Traction case the icj contributed significantly to clarifying the concept of erga omnes obligations by providing examples. Additional examples of erga omnes obligations such as torture, self-​determination and certain rules of international humanitarian law have been provided by the icj since the Barcelona Traction judgment. However, it may be argued that the Court has missed opportunities to identify examples of erga omnes obligations in the field of international environmental law. Furthermore, the icj failed to clarify the nature of erga omnes by explaining the methodology underlying asserting the erga omnes status of the norms it identified only by providing examples. However, the contribution of the icj in providing examples of erga omnes is greater than it has added to jus cogens; seemingly erga omnes is the icj’s preferred sister. 4

Conclusion

The purpose in this chapter is to review the contribution of the icj in the development of the notion of erga omnes obligations first introduced by this very institution in what has come to be known as the Barcelona Traction dictum over five decades ago. To some extent there is a greater understanding of the notion as a consequence of the case law of the icj since the Barcelona Traction dictum. The Barcelona Traction dictum is seminal but over time the Court has offered additional examples of obligations erga omnes, and in the East Timor case distinguished the consequences of a rule being considered to have erga omnes effects and the rules of jurisdiction of the icj. Unfortunately, in the last half a century the Court has not entirely managed to answer its critics who suggest that erga omnes is merely a product of wishful thinking and is purely theoretical, neither has an icj case been decided only upon the erga omnes character of norms. The Chagos Advisory Opinion affords fertile ground in that it hints at a new era for obligations erga omnes as some authors interpret this advisory opinion to suggest that the icj considers that States not merely are entitled to invoke a legal interest in infractions of obligations erga omnes but must take action to ensure the correction of a breach of a rule that is of an erga omnes nature. The implementation of the Chagos Advisory Opinion and its reception will be telling. Only in time will it become

250 –​251; Eduardo Valencia-​Ospina “The International Court of Justice and International Environmental Law” (1994) 2 Asian Yearbook of International Law 1, 1–​10.

226 Bradley clear whether the concept of erga omnes obligations will mature under the direction of the icj and lead to firm case law by which a broader category of norms imposes erga omnes obligations. As yet there is uncertainty whether the breach of all norms that impose erga omnes obligations will be placed on a similar footing to breaches of jus cogens norms. The norms that result in erga omnes obligations necessarily protect fundamental rights. Therefore, a more expansive category of norms serves the interests of the international community as a whole.

Acknowledgement

I wish to express my gratitude to Prof Dire Tladi and Dr Aniel de Beer for comments on earlier drafts of this chapter.

Chapter 9

Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility

Observations in the Light of the Recent Work of the International Law Commission Helmut Philipp Aust 1

Introduction

Commenting on the recent work of the ilc on peremptory norms of general international law (jus cogens), the United States delegate to the Sixth Committee of the UN General Assembly claimed in October 2019 that the work of the Commission was “not grounded in legal authority, but rather reflected an effort to imagine, through deductive reasoning, ways in which certain principles could apply in hypothetical circumstances”.1 Although more acidic in tone than many other delegations, he was not entirely alone in his attitude towards a project that many governments frowned upon with a certain degree of scepticism. Which notion of international law is, after all, riddled with more mystique and uncertainty than the one of jus cogens?2 The concept of peremptory norms has, of course, a well-​consolidated core, i.e. its emanation in Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties (vclt). Notoriously controversial are the effects of jus cogens outside of the law of treaties, even though this is hardly a novel question, considering that Giorgio Gaja entitled his Hague Lectures from 1980 “Jus Cogens beyond the Vienna Convention”.3 The ilc seemed to have achieved

1 United States (A/​C.6/​73/​s r.29), at para. 31. 2 Andrea Bianchi “Human Rights and the Magic of Jus Cogens” (2008) 19 European Journal of International Law 491, at 493–​494; Dinah Shelton “Sherlock Holmes and the Mystery of Jus Cogens” (2015) 46 Netherlands Yearbook of International Law 23, at 48; Jean d’Aspremont “Jus Cogens as a Social Construct without Pedigree” (2015) 46 Netherlands Yearbook of International Law 85, at 94. 3 Giorgio Gaja “Jus Cogens beyond the Vienna Convention” (1981) 172 Collected Courses of the Hague Academy of International Law 271.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_010

228 Aust a certain consolidation in the law of State responsibility as the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility) contain a number of provisions and references to the concept of peremptory norms under general international law.4 In particular, the Articles on State Responsibility stipulate that reliance on a circumstance precluding wrongfulness is not available if a breach of a peremptory norm is at issue (Article 26). Articles 40 and 41 contain additional consequences for serious breaches of peremptory norms of general international law, in particular an obligation for third States to cooperate to bring such violations to an end. They also include a two-​pronged obligation not to recognize situations brought about by such serious breaches as lawful nor to render aid or assistance in their maintenance. As it is the case in many other instances in the law of State responsibility, there is considerable uncertainty lurking under apparently clear provisions. This holds true for all the jus cogens-​related aspects of the law of State responsibility just mentioned. For instance, in relation to a preclusion of wrongfulness, uncertainties about the scope of the jus cogens norm of the prohibition on the use of force impact on the reach of consent as a basis for the use of military forces upon invitation.5 With respect to the additional consequences of the serious breaches regime, the Commission itself considered that the obligation of cooperation might reflect the progressive development of international law in 2001.6 And what does the threshold of a serious breach mean for the

4 Articles on the Responsibility of States for Internationally Wrongful Acts Report of the International Law Commission, Fifty-​Third Session. General Assembly Official Records (A/​56/​ 10) (2001), Chapter iv. 5 See Georg Nolte Eingreifen auf Einladung –​Zur völkerrechtlichen Zulässigkeit des Einsatzes fremder Truppen im internen Konflikt auf Einladung der Regierung (Springer, 1999), at 137–​ 139; James Crawford State Responsibility –​The General Part (Cambridge, 2013), at 317; Daniel Costelloe Legal Consequences of Peremptory Norms in International Law (Cambridge, 2017), at 225–​226; Federica Paddeu Justification and Excuse in International Law –​Concept and Theory of General Defences (Cambridge, 2018), at 163–​165. Compare the different positions on the relevance of the jus cogens character in the related context of the right of self-​defense against attacks by non-​state actors: Dire Tladi “The Use of Force in Self-​Defence against Non-​State Actors: Decline of Collective Security and the Rise of Unilateralism: Whither International Law?” in Mary Ellen O’Connell, Christian J. Tams and Dire Tladi (eds.) Self-​Defense against Non-​State Actors (Cambridge, 2019), at 26–​27; Christian J. Tams “Self-​Defence against Non-​ State Actors: Making Sense of the ‘Armed Attack’ Requirement” in Ibid., at 110–​111; Mary Ellen O’Connell ”Self-​Defence, Pernicious Doctrines, Peremptory Norms” in Ibid., at 244–​253. 6 Para 3 of Commentary to Draft Article 41 of the Draft Articles on Responsibility of States (above note 4).

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obligations of non-​recognition and non-​assistance? Does this imply that “non-​ serious” breaches may be recognized as lawful or even be supported? Accordingly, the ilc project on peremptory norms of general international law (jus cogens), that the Commission embarked upon at its sixty-​seventh session in 2015, offered a welcome opportunity to revisit these and other questions pertaining to the relationship between jus cogens and State responsibility. After all, in addition to the points just mentioned, such a stock-​taking could help elucidate whether the saving clause of Article 41(3) of the Articles on State Responsibility had yielded any fruits. At the time of adoption of the Articles on State Responsibility, the Commission had intended to signal with this provision that the inclusion of certain additional consequences for serious breaches did not stand in the way of other special consequences attached to violations of jus cogens.7 Following the adoption of the Articles on State Responsibility in 2001, the topic of State responsibility for violations of the most important norms of the international community continued to receive significant scholarly attention.8 In particular, it was pointed out that the whole framework of State responsibility was not imaginative enough to allow for the adequate consideration of situations of “shared responsibility”.9 Especially in scenarios of large-​scale violations of peremptory norms, the involvement of multiple actors might not be atypical. The following considerations will turn towards the recent work of the ilc in its project on peremptory norms of general international law ( jus cogens). As a first step, the next part will offer a brief refresher on some aspects of the complex relationship between jus cogens and State responsibility (section 2). Subsequently, the contribution will assess the Draft Conclusions as they were adopted on First Reading (section 3).10 The chapter will then contextualise 7 8

9

10

Id., at paras. 13 and 14. Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2008), at 272–​ 287; Lisa Yarwood State Accountability under International Law: Holding States Accountable for a Breach of Jus Cogens Norms (Routledge, 2010); Helmut Philipp Aust Complicity and the Law of State Responsibility (Cambridge, 2011), at Chapter 7; Robert Kolb Peremptory International Law –​Jus Cogens. A General Inventory (Bloomsbury, 2015), at 104–​115; Thomas Weatherall Jus Cogens –​International Law and Social Contract (Cambridge, 2015), at Chapter 14 and 15; Costelloe (above note 5), at Chapter 6. See, for instance, Eric Wyler and Leon Castellanos-​ Jankiewicz “Serious Breaches of Peremptory Norms” in André Nollkaemper and Illias Plakokefalos (eds.) Principles of Shared Responsibility in International Law –​An Appraisal of the State of the Art (Cambridge, 2014), at 291; compare also André Nollkaemper and Dov Jacobs “Shared Responsibility in International Law: A Conceptual Framework” (2013) 34 Michigan Journal of International Law 359, at 400. Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​first Session, General Assembly Official Records (A/​74/​10) (2019), at Chapter v.

230 Aust these results in the light of the debates within the Commission as well as the reception the Draft Conclusions received in the debates in the Sixth Committee of the General Assembly (section 4). Following that, the contribution will discuss to what extent the Commission has offered the international community of States merely an “effort to imagine” hypothetical consequences of breaches of jus cogens –​or whether the special consequences for serious breaches of peremptory norms of general international law are now indeed firmly accepted in international law. In particular, this section will assess recent practice with respect to the three additional consequences that the ilc included in the Articles on State Responsibility in 2001 –​the obligation of cooperation as well as the obligations to refrain from recognizing situations brought about by serious breaches of peremptory norms as lawful and to render aid or assistance for maintaining such situations (section 5). A brief conclusion wraps up the chapter (section 6). 2

Jus Cogens and State Responsibility: A Refresher

The stakes are high when it comes to the relationship between jus cogens and the law of State responsibility. The latter is a key field for the whole discipline of public international law.11 As it has developed over the last seventy years, it has different functions. At its most basic level, it serves as a set of rules which come into play once an international obligation has been breached. It contains the applicable law for the following questions: attribution, the reliance upon circumstances precluding wrongfulness as well as the content of responsibility and its invocation and enforcement. As they have found expression in the Articles on State Responsibility adopted in 2001, these rules constitute a unitary set of provisions which apply to the most different kinds of breaches of international law, ranging from the bilateral treaty on friendship, commerce and navigation, to a multilateral convention for the protection of human rights or the environment and regardless of the source from which they originate. This design is the consequence of a decision adopted by the Commission in the early 1960s upon the suggestion of its second Special Rapporteur, Roberto

11

See Pierre-​Marie Dupuy “Le Fait Générateur de la Responsabilité Internationale des États” (1984) 188 Recueil des Cours de la Académie de Droit International 9, at 24; Martti Koskenniemi “Doctrines of State Responsibility” in James Crawford, Alain Pellet, Simon Olleson and Kate Parlett (eds.) The Law of International Responsibility (Oxford, 2010), at 45–​46.

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Ago, to focus on the so-​called “secondary rules” of responsibility.12 The decision to focus only on the secondary rules was meant to set the ilc project apart from a previous focus of the law of State responsibility which had been much more closely connected with substantive obligations and a concentration on the highly controversial question of injuries to aliens.13 The turn to general rules on responsibility which apply regardless of the substantive field in question, however, also triggered debates about necessary differentiation in terms of the gravity of the respective breach. In other words: could it make sense that the legal consequences of a breach of international law were the same for the violation of a bilateral treaty of commerce on the one hand and the customary prohibition of the commission of genocide on the other?14 This conundrum triggered the debate about the concept of “international crimes”, included in Draft Article 1915 as formulated in 1976 and adopted on first reading by the Commission together with the other Draft Articles in 1980/​1996. Although the concept of “international crimes” was not synonymous with the notion of jus cogens, the two concepts had significant overlap, both in terms of conceptual background and with respect to the norms which were widely held to fall within these categories.16 The inclusion of a provision on “international 12

13

14 15

16

Roberto Ago “Working Paper” Report of the International Law Commission, Fifteenth Session, General Assembly Official Records (A/​5509) (1963), at 253. On this distinction see Eric David “Primary and Secondary Rules” in James Crawford, Alain Pellet, Simon Olleson and Kate Parlett (above note 11); for a highly critical view on this decision of the ilc and the entire philosophy underlying it, see Philip Allott “State Responsibility and the Unmaking of International Law” (1988) 29 Harvard International Law Journal 1; also critical is Alexander Orakhelashvili (above note 8), at 80. See James Crawford (above note 5) at, 35–​36; for a re-​appraisal of the early work of the ilc see Helmut Philipp Aust and Prisca Feihle “Due Diligence in the History of the Codification of the Law of State Responsibility” in Heike Krieger, Anne Peters and Leonhard Kreuzer (eds.) Due Diligence in the International Legal Order (Oxford University Press, 2020). Alain Pellet “Can a State Commit a Crime? Definitely, Yes!” (1999) 10 European Journal of International Law 425, at 425–​26. See Draft Art 19 in Report of the International Law Commission, Twenty-​eighth Session, General Assembly Official Records (A/​31/​10) (1976), at 95. On the drafting history see Marina Spinedi “International Crimes of State: The Legislative History” in Joseph Weiler, Antonio Cassese and Marina Spinedi (eds.) International Crimes of State: A Critical Analysis of the ilc’s Draft Article 19 on State Responsibility (Walter de Gruyter, 1989); Marina Spinedi “From One Codification to Another: Bilateralism and Multilateralism in the Genesis of the Codification of the Law of Treaties and the Law of State Responsibility” (2002) 13 European Journal of International Law 1099. See further Stefan Kadelbach Zwingendes Völkerrecht (Duncker & Humblot, 1992), at 52–​58; Crawford (above note 5), at 390–​394; Mehrdad Payandeh Internationales Gemeinschaftsrecht –​Zur Herausbildung gemeinschaftsrechtlicher Strukturen im Völkerrecht der Globalisierung (Springer, 2010), at 408; Christian Tomuschat “The Security

232 Aust crimes” was, however, never uncontroversial within the Commission. Apart from the criminal law connotations it evoked and which alienated some members of the Commission,17 it was not entirely clear how the legal consequences of international crimes should be set apart from the residual category of “international delicts”, which was conceived to be the “ordinary” form of responsibility.18 Very close to the end of the State responsibility saga in the ilc, the concept of international crimes hence disappeared.19 It was replaced by the more neutral-​sounding category of “serious breaches of peremptory norms of general international law” in what today are Articles 40 and 41 of the Articles on State Responsibility. Jus cogens was inserted where previously the concept of international crimes dominated the debate on the necessary consideration of public order values or goods in the law of State responsibility. This was not a foregone conclusion.20 If one sticks to the traditional function of jus cogens in the law of treaties, it was a conceptual leap to transfer that concept to the law of State responsibility. This field of the law has nothing to do with derogation, which is the defining feature of the jus cogens regime as set forth by the vclt.21 The debate around the concept of international crimes as well as the notion of peremptory norms of general international law are indicative of the general trajectory that the law of State responsibility has taken: it may not have followed a simple path “from bilateralism to community interest”,22 as there

17 18 19 20 21 22

Council and Jus Cogens“ in Enzo Cannizaro (ed.) The Present and Future of Jus Cogens (Sapienza, 2015), at 25. Eric Wyler “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’ ” (2002) 13 European Journal of International Law 1147, at 1148. Cf. Andreas Paulus Die internationale Gemeinschaft im Völkerrecht. Eine Untersuchung zur Entwicklung des Völkerrechts im Zeitalter der Globalisierung (C.H. Beck, 2001), at 390 et seq. Costelloe (above note 5), at 184–​185. For critical remarks in this regard see Andreas Paulus “Jus Cogens in a Time of Hegemony and Fragmentation –​An Attempt at a Re-​ appraisal” (2005) 74 Nordic Journal of International Law 297, at 316; Alexander Orakhelashvili (above note 8), at 287. Thomas Kleinlein Konstitutionalisierung im Völkerrecht –​Konstruktion und Elemente einer idealistischen Völkerrechtslehre (Springer, 2012), at 372–​373; Costelloe (above note 5), at 185. Bruno Simma “Bilateralism and Community Interest in the Law of State Responsibility” in Yoram Dinstein and Mala Tabory (eds.) International Law at a Time of Perplexity –​ Essays in Honour of Shabtai Rosenne (Martinus Nijhoff, 1989), at 821; Bruno Simma “From Bilateralism to Community Interest in International Law” 1994 250 Recueil des Cours de la Académie de Droit International 217, at 301–​321; for the most recent and cross-​cutting assessment of the notion of community interest see the contributions in Eyal Benvenisti, and Georg Nolte (eds.) Community Interests Across International Law (Oxford, 2018).

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is a good level of resilience of the traditional bilateral concepts in this field of the law.23 However, the relationship between community values and a more “transactionalist” mindset of reparation has been under constant negotiation and renegotiation across the entire history of the law of State responsibility. In fact, the early forms of foreign interventions for the purpose of enforcing international law in colonial and imperial contexts were not merely attempts at obtaining compensation or satisfaction. Rather, they also sought to define acceptable standards of behaviour in an international context.24 Accordingly, the determination of the relationship between jus cogens and State responsibility is not just a dry doctrinal question –​it can have significant real-​world implications as it relates to the distribution of responsibilities to uphold core values of the international community. 3

Jus Cogens and State Responsibility in the ilc Draft Conclusions as Adopted on First Reading (2019)

The general ambit and reach as well as the background to the recent ilc work on peremptory norms of general international law (jus cogens) are well explored in other contributions to this volume. For questions on State responsibility, the following Draft Conclusions (dc) are relevant:



23 24

Conclusion 17 Peremptory norms of general international law (jus cogens) as obligations owed to the international community as a whole (obligations erga omnes) 1. Peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest. Georg Nolte “From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of Inter-​State Relations” (2002) 13 European Journal of International Law 1083. For contemporaneous statements pertaining to the “minimum standard of civilization” see Elihu Root “The Basis of Protection to Citizens Residing Abroad” (1910) 4 American Journal of International Law 517, at 519–​520; Frederick Sherwood Dunn “International Law and Private Property Rights” (1928) 28 Columbia Law Review 166, at 175–​176; for a discussion on this, see Helmut Philipp Aust and Georg Nolte “International Law and the Rule of Law at the National Level” in Michael Zürn, André Nollkaemper and Randall Peerenboom (eds.) Rule of Law Dynamics in an Era of International and Transnational Governance (Cambridge, 2012), at 60–​62.

234 Aust

2. Any State is entitled to invoke the responsibility of another State for a breach of a peremptory norm of general international law (jus cogens), in accordance with the rules on the responsibility of States for internationally wrongful acts. Conclusion 18 Peremptory norms of general international law (jus cogens) and circumstances precluding wrongfulness No circumstance precluding wrongfulness under the rules on the responsibility of States for internationally wrongful acts may be invoked with regard to any act of a State that is not in conformity with an obligation arising under a peremptory norm of general international law (jus cogens). Conclusion 19 Particular consequences of serious breaches of peremptory norms of general international law (jus cogens)





1. States shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens). 2. No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens), nor render aid or assistance in maintaining that situation. 3. A breach of an obligation arising under a peremptory norm of general international law (jus cogens) is serious if it involves a gross or systematic failure by the responsible State to fulfil that obligation. 4. This draft conclusion is without prejudice to the other consequences that a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens) may entail under international law.

These Draft Conclusions follow the Articles on State Responsibility closely. Draft Conclusion 17 clarifies the relationship between peremptory norms and obligations erga omnes. Although the conceptual relationship had been so far not explicitly fleshed out in the Articles of State Responsibility, Draft Conclusion 17(2) encapsulates the essence of the standing regime that the ilc had set forth in Article 48(1) (b) of the Articles on State Responsibility.25 25

See further Christian J. Tams Enforcing Obligations Erga Omnes in International Law (Cambridge, 2005).

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Draft Conclusion 18 replicates Article 26 of the Articles on State Responsibility whereas paragraphs 1, 2 and 4 of the Draft Conclusion 19 embody the essence of Article 41 of the Articles on State Responsibility. Draft Conclusion 19(3) takes up the general definition of serious breaches of peremptory norms of general international law from Article 40 of the Articles on State Responsibility. So much is also acknowledged by the Commentary to these two Draft Conclusions.26 In the Commentary, the Commission does not set out any ways in which Draft Conclusion 18 –​on the relationship between jus cogens and the circumstances precluding wrongfulness –​differs in any significant way from Article 26 of the Articles on State Responsibility. In comparison, the Commentary to Draft Conclusion 19 is richer and merits close attention. This is particularly the case for the observations pertaining to the obligation of cooperation. The Commentary differs in significant respects from the previous position of the ilc in its Commentary to Article 41(1) of the Articles on State Responsibility: First, in 2001, the ilc was unsure “whether general international law at present prescribes a positive duty of cooperation”.27 In comparison, the 2019 Commentary to Draft Conclusion 19 dryly notes that dc 19(1) “builds upon the general obligation to cooperate under international law”.28 For support for this position, the Commentary relies on the 1970 Friendly Relations Declaration where indeed a general obligation of cooperation is included.29 However, it is noteworthy that in 2019, the ilc did seem to read the connection between the Friendly Relations Declaration and general international law somewhat differently than in 2001. Second, the Commentary to Draft Conclusion 19 now also posits confidently that as compared with the State of the law in 2001, the obligation of cooperation to bring to an end a serious breach of a peremptory norm of general international law (jus cogens) is now recognized under international law.30 In 26 27 28 29

30

Para 2 of the Commentary to Draft Conclusion 18 and para 1 of the Commentary to Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 10). Para 3 of the Commentary to Article 41 of the Articles on State Responsibility (above note 4). Para 2 of the Commentary to Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 10). Declaration on Principles of International Law Concerning Friendly Relations and Co-​ operation among States in accordance with the Charter of the United Nations, United Nations General Assembly Resolution 2625 (xxv), Twenty-​ fifth Session, General Assembly Official Records (A/​r es/​2625(xxv)) (24 October 1970). On the Declaration on Friendly Relations in this volume see Jorge Viñuales “The Friendly Relations Declaration and Peremptory Norms” (Chapter 23). See Para 2 of the Commentary to Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 10), at 194.

236 Aust order to substantiate this finding, the Commentary relies on a domestic court decision from the United Kingdom, two advisory opinions by the icj as well as a decision by the Inter-​American Court of Human Rights.31 In addition, Draft Article 7 of the ilc Articles on the Protection of Persons in the Event of Disasters is taken into account.32 Third, the Commentary goes into more detail when it comes to the appropriate forms of cooperation than the ilc did in 2001. It notes that international law would not prohibit unilateral measures to bring to an end a serious breach of a peremptory norm of general international law as long as such measures are “lawful”, which can be read as a cautious reference to the debate about the extent to which countermeasures in the collective interest are allowed under Article 54 of the Articles on State Responsibility. Yet, the focus would be on collective measures which could be understood as “the essence of ‘cooperation’ ”.33 The United Nations is identified as “the preferred framework for cooperation action”, while noting that also other organizations such as the African Union could be relevant here. Where the Commentary adds something significantly new to the 2001 Commentary is the mention that “not only measures under institutionalized cooperation mechanisms” may be adopted: the obligation to cooperate “may also be implemented through non-​institutionalized cooperation, including through ad hoc arrangements by a group of States acting together to bring to an end a breach of a peremptory norm”.34 In order to ground that position in positive international law, the Commentary mentions the Wall opinion of the icj with its call on individual States to make efforts to bring situations created by a breach of the right of self-​determination to an end.35

31

32 33 34 35

A, Amnesty International (intervening) and Commonwealth Lawyers Association (intervening) v. Secretary of State for the Home Department, Judgment of the House of Lords, 8 December 2005, at para. 34; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2004, p. 136, at para. 155; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, 95 para. 182; Case of La Cantuta v. Peru, Judgment of the Inter-​American Court of Human Rights, 29 November 2006, at para. 160. Draft Articles on the Protection of Persons in the Event of Disasters, Report of the International Law Commission, Sixty-​Eighth Session, General Assembly Official Records, (A/​71/​10) (2016). Commentary to Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 10), at para. 3. Commentary to Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 10), at para. 4. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (above note 31), at para. 159.

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A fourth noteworthy point which goes beyond the 2001 framework is the clarification that the obligation to cooperate also has a meaning for voting in the UN organs: “… where an international organization has the discretion to act, the obligation to cooperate imposes a duty on the members of that international organization to act with a view to the organization exercising that discretion in a manner to bring to an end the breach of a peremptory norm of general international law (jus cogens)”.36 In comparison, the Commentary on the obligations of non-​recognition and non-​assistance do not depart significantly from the 2001 acquis. To a certain extent, some of the relevant content is hanging in the air as it reflects suggestions the Special Rapporteur made in his reports for draft conclusions, but which were ultimately not retained. This is particularly obvious when the obligations of non-​recognition and non-​assistance are conceived with a negative character as compared to the obligation of cooperation, which would render them “less onerous”.37 This language dates back to a suggestion by the Special Rapporteur not to retain the qualifier of a “serious breach” as the requirement to trigger the special consequences of non-​recognition and non-​assistance.38 4

Criticism and Debate in the ilc and the Sixth Committee of the UN General Assembly

The State responsibility-​related parts of the 2019 Draft Conclusions on peremptory norms of general international law (jus cogens) indeed show a significant amount of continuity with the 2001 of the Articles on State Responsibility. Yet, the Commentary also indicates where there were areas of disagreement within the Commission. Part of this disagreement was, later on, also reflected in the statements of governmental representatives in the Sixth Committee of the UN General Assembly.

36 37 38

Para 5 of the Commentary to Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 10). Commentary to Draft Conclusion 19 of the Draft Conclusions (above note 10), at para. 6. Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​714) (2018), at para. 101 and proposed Draft Conclusion 21, at para. 160.

238 Aust 4.1 The Debate in the Commission All in all, it is noteworthy that the jus cogens project seems to continue a series of projects in which some form of soul searching occurred among the members of the Commission.39 This is reflected in repeated statements of ilc members which indicate that more seems to have been at stake than “just” the project itself. This found expression in comments pertaining to the adequate balance between a more theoretical approach and the “rigorous” assessment of practice, the question of how to balance codification and progressive development as well as numerous comments on working methods, in particular the speed at which the Commission tackled the jus cogens project and the timing of the drafting of commentaries. The State responsibility-​related issues received significant attention in the debates of the Commission but on balance did not prove to be highly controversial, which goes to show that the Special Rapporteur was able to rely on a good measure of support for his suggested Draft Conclusions in this area. It was also helped by the general tendency among the members of the Commission to ensure as much consistency of the Draft Conclusions with the Articles on State Responsibility as possible.40 This was particularly clear when the suggestion by the Special Rapporteur not to retain the qualifier “serious breach” for the obligations of non-​recognition and non-​assistance was discussed. For instance, Concepción Escobar Hernández pleaded that Draft conclusions 20 and 21 as they stood at the time and which later became Draft conclusions 19 and 20 respectively should be harmonized with article 41 of the articles on State responsibility. (…) Omitting the word “serious” would suggest that the Commission had decided to follow a new course and would need to be justified appropriately, but the third report provided no such justification for departing from article 41 in that respect.41 39 Dire Tladi “The International Law Commission’s Recent Work on Exceptions to Immunity: Charting the Course for a Brave New World in International Law?” (2019) 32 Leiden Journal of International Law 169, at 170–​172; see also on the substantive issues in this context Janina Barkholdt and Julian Kulaga “Analytical Presentation of the Comments and Observations by States on Draft Article 7, paragraph 1, of the ilc Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction, United Nations General Assembly, Sixth Committee, 2017” (2018) kfg Working Paper Series No. 14, Berlin Postdam Research Group, The International Rule of Law-​Rise or Decline. 40 See, for instance, the statements of members: Murphy (A/​c n.4/​s r.3416), at 12; Nolte (A/​ cn.4/​s r.3417), at 13; Rajput (A/​c n.4/​s r.3418), at 5. 41 Hernandez (A/​c n.4/​s r.3421), at 9.

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This was refuted by the Special Rapporteur who remarked that by insisting on the inclusion of these words, the Commission would appear to be suggesting that it was lawful for States to recognize or even assist in breaches of jus cogens that were not serious. If a single case of torture was deemed not to be serious, that would imply that one State could assist another State in torturing an individual. If the Commission insisted on retaining the word “serious”, the commentary would need expressly to state that in 2018 the Commission took the view that a State was free to recognize or even assist in breaches of jus cogens that were not serious.42 This overlooks that States also incur responsibility for aiding and assisting violations of international law on the basis of Article 16 of the Articles on State Responsibility.43 Yet, the Special Rapporteur has a point. With the inclusion of “serious breach” in both Article 41(2) of the Articles on State Responsibility and Draft Conclusion 19(2) as it was ultimately adopted, the law might be understood as sending out a questionable signal: that it may indeed be lawful to recognize a non-​serious breach of a peremptory norm of general international law, as there is no obligation of non-​recognition beyond the serious breaches regime. As we will see, this was also a question taken up by some governmental representatives in the Sixth Committee. In the Commission, fundamental questions about the relationship between jus cogens and State responsibility were only seldom asked. Shinya Murase, for instance, mentioned that State responsibility should be considered “also from the perspective of the overall categorization of jus cogens”.44 In his view, the possible functions of jus cogens in the law of State responsibility would be different than in the law of treaties: “The effect of a violation of a jus cogens norm under the law of treaties was simply to nullify any agreement that conflicted with the higher norm of jus cogens. Under the law of State responsibility, the effects of such a violation went much further”.45 State responsibility would concern the “actual conduct of States”.46 What could be read as an impulse to rethink the relationship between jus cogens and the law of State responsibility and go beyond the 2001 acquis 42 43 44 45 46

Tladi (A/​c n.4/​s r.3425), at 12. Compare also Robert Kolb (above note 8), at 107. Murase (A/​c n.4/​s r.3418), at 14. Ibid. Ibid.

240 Aust went unheeded, however. The prevailing mood was caution. As Georg Nolte observed: “The Commission needed to deal with such questions in a particularly careful way”.47 Other members did not try to conceal a general scepticism towards the category of jus cogens as such. Particularly outspoken was Sir Michael Wood who noted that “[j]us cogens was, by its nature, potentially disruptive to international law”.48 This general scepticism also translated into restrictive views on the few changes –​progressive or not –​that the Special Rapporteur intended to set forth with his suggested Draft Conclusions. Omitting the word “serious” from the companion to Article 41(2) of the Articles on State Responsibility in the Draft Conclusions should be avoided not merely for the sake of consistency in drafting, but, as remarked by Sir Michael Wood, “so as to avoid greatly expanding the principle contained in the articles”.49 Here, two fundamentally different philosophies of jus cogens come to the fore: whereas Sir Michael Wood emphasizes the potential disruption that an expansive understanding of jus cogens and its effects in the field of State responsibility might have, the Special Rapporteur took a different starting point, as elaborated on in a journal article. To him, jus cogens was about controlling the exercise of power by States.50 This juxtaposition invites for further reflection on different philosophies behind the usage of the concept of jus cogens, an endeavour which is, however, beyond the scope of this chapter. 4.2 The Reception by States in the Sixth Committee The general reception of the Draft Conclusions by States in the Sixth Committee to a certain extent replicated the discussion within the Commission. It is noteworthy that many States took issue with the working method of the Commission which, they felt, deprived them of meaningful ways to comment on the ilc drafts as the Commission, upon the request by the Special Rapporteur, had held off drafting the commentary to the Draft Conclusions until the very end of the project.51 This debate about procedure overshadowed 47 48 49 50

51

Nolte (A/​c n.4/​s r.3417), at 10. Wood (A/​c n.4/​s r.3421), at 4. Id., at 6. Dire Tladi “Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal Reflections of the Special Rapporteur” (2019) 13 Florida International University Law Review 1137, at 1141. See, for instance France (A/​C.6/​73/​s r.20), at para. 71 and (A/​C.6/​73/​s r.26), at para. 6; Finland (also on behalf of the Nordic countries) (A/​C.6/​73/​s r.24), at para. 123; Germany (A/​C.6/​73/​s r.26), at para. 30 and (A/​C.6/​74/​s r.25), at para. 7; United States (A/​C.6/​73/​ sr.29), at para. 28; United Kingdom (A/​C.6/​74/​s r.23), at para. 98; Poland (A/​C.6/​74/​ sr.23), para. 116; Israel (A/​C.6/​74/​s r.24), at para. 16.

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some of the substantive points in the Draft Conclusions, among them the State responsibility-​related issues. Hence, they did not receive the echo they might have otherwise created. A number of governmental representatives in the Sixth Committee urged for a cautious approach with respect to the topic of peremptory norms of general international law. As the delegate for China remarked, “[t]‌he determination of the elements, criteria and consequences of jus cogens must be based on the relevant provisions of the Vienna Convention on the Law of Treaties and be supported by adequate State practice”.52 Cameroon went so far as to emphasize that the Commission should, in its dealings with jus cogens, “stay true to the Westphalian principle of international law, whereby that law was one made by States for States”.53 Some States, however, also urged the Commission to be bolder. A couple of States pleaded for an extension of the duty of cooperation also to non-​serious breaches of peremptory norms.54 Other representatives wondered whether a “non-​serious” breach of a norm of jus cogens would be possible in the first place.55 Portugal also seemed to militate for going beyond the 2001 acquis by emphasizing that “States were not merely required to refrain from acting in a way that violated jus cogens, but had a duty to actively cooperate to disseminate and uphold these norms”.56 Micronesia welcomed the strengthening of the obligation of cooperation and pointed to the potential that this might have in triggering responses for the safeguarding and preserving of the human environment.57 Interestingly, Italy in turn identified a lack of theoretical sophistication in the work of the Commission; a criticism which seems to be rather unusual in the context of the Sixth Committee.58

52

53 54 55 56 57 58

China (A/​C.6/​73/​s r.25), at para. 14; Czech Republic (A/​C.6/​73/​s r.25), at para. 63; Slovakia (A/​C.6/​73/​s r.26), at para. 21; New Zealand (A/​C.6/​73/​s r.26), at para. 99; Romania (A/​ C.6/​73/​s r.26, at para. 109); United States (A/​C.6/​73/​s r.29), at para. 31; Norway (A/​C.6/​ 74/​s r.23), at para. 48; United Kingdom (A/​C.6/​74/​s r.23), at para. 109; Turkey (A/​C.6/​74/​ sr.26), at para. 73. UN Doc. A/​C.6/​74/​s r.27, at para. 56; this did not preclude the state of Cameroon from welcoming the progressive development of the law in some instances, see for instance ibid., para. 57 with a positive reaction to Draft Conclusion 7. See, for instance, Egypt (A/​C.6/​73/​s r.25), at para. 37 and (A/​C.6/​74/​s r.26), at para. 4. Brazil (A/​C.6/​73/​s r.25), at para. 40; Sudan (A/​C.6/​73/​s r.28), at para. 13; Poland (A/​C.6/​74/​ sr.23), at para. 124; Togo (A/​C.6/​74/​s r.26), at para. 28; South Africa in (A/​C.6/​74/​s r.27), at para. 47. UN Doc. A/​C.6/​73/​s r.26, at para. 117. UN Doc. A/​C.6/​74/​s r.24, at paras. 99-​100. UN Doc. A/​C.6/​74/​s r.24, at para. 52.

242 Aust Still others commended the Commission for sticking close to the Articles on State Responsibility.59 Only in isolated cases did a governmental representative question the value of the additional consequences established in Article 41 of the Articles on State Responsibility in the cases of serious breaches of peremptory norms of general international law. In particular, Israel questioned the status of these provisions as reflective of customary international law.60 Apart from isolated comments, it hence appears that most States did not question the general direction that the ilc followed with respect to the relationship between jus cogens and State responsibility while some concerns that were voiced focused more on atmospheric aspects, working methods and the general trajectory of the work of the Commission. For the present purposes, the most salient questions concern the direction that the regime of additional consequences for serious breaches of peremptory norms will be taking, especially as the Commentary to Draft Conclusion 19(1) indicates some movement on the part of the Commission. 5

The Legal Consequences of Serious Breaches of Peremptory Norms: Recent Practice

In this section, the chapter will accordingly take a closer look at the relevant international practice which might help to determine where international law stands today as far as the additional consequences of serious breaches of peremptory norms of general international law (jus cogens) are concerned. The obligations of cooperation, non-​recognition and non-​assistance will be examined in turn. Certainly, these remarks do not purport to be a complete examination of international practice. Rather, they focus on the practice that the ilc itself relied on in its Commentary to Draft Conclusion 19 as well as to some particularly noteworthy elements of international practice as it has developed between the adoption of the Articles on State Responsibility in 2001 and the adoption of the draft conclusions on first reading in 2019. 5.1 The Obligation of Cooperation The comments by States to the Draft Conclusions remain somewhat inconclusive when it comes to the obligation of cooperation. As it was mentioned above, the ilc shifted course from the cautious assessment in 2001 that Article 59 60

See, for instance, Mexico (A/​C.6/​73/​s r.25), at para. 57; Greece (A/​C.6/​74/​s r.24), at para. 35; Spain (A/​C.6/​74/​s r.26), at para. 15. UN Doc A/​C.6/​74/​s r.24, at para. 19.

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41(1) of the Articles on State Responsibility represented a form of progressive development to the more confident assessment that this obligation of cooperation now has a firm basis in positive international law. This was openly challenged only by Israel in the Sixth Committee but also did not meet with much explicit endorsement. Accordingly, it is warranted to take a closer look at the basis for this assessment by the ilc. As it was mentioned above, the commentary points to basically five instances of practice: one domestic court case, a decision by a regional human rights court, two advisory opinions by the icj and another project of the ilc. In the following remarks, I wish to take a closer look at the two icj opinions as well as the relevant ilc work. The import of the two icj advisory opinions for “hardening” Article 41(1) of the Articles on State Responsibility into a generally applicable obligation to cooperate to bring to an end serious breaches of peremptory norms of general international law is indeed questionable. In both the Wall advisory opinion and the Chagos opinion, the Court did indeed mention an obligation of cooperation to bring to an end what it had previously identified as a breach of the principle of self-​determination.61 However, these findings do not necessarily strengthen the principle embodied in Article 41(1) of the Articles on State Responsibility and Draft Conclusion 19(1). In both advisory opinions, the Court does not make use of the concept of jus cogens in order to ground this obligation of cooperation. Rather, in both cases it appears to flow from the obligation to ensure compliance of international humanitarian law under Common Article 1 of the Geneva Conventions and the right of self-​determination respectively. Both obligations are characterized by the Court as erga omnes. Accordingly, the Court makes use of the regulatory idea behind Article 41(1) of the Articles on State Responsibility, but does neither refer to this provision explicitly nor base its findings on the alleged normative effects of peremptory norms.62 Draft Conclusion 17(1) of course makes a close connection between peremptory 61

62

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (above note 31), at para. 159; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (above note 31), at para. 180; note however that there is no direct reference to an obligation of co-​operation in the Wall opinion, but rather, language which bears a connection to such a duty (“to see to it that any impediment … is brought to an end”). See, however, Martin Dawidowicz Third-​Party Countermeasures in International Law (Cambridge, 2017), at 61 (icj ‘effectively endorsed’ what later became Article 41(2) of the Articles on State Responsibility in the Wall opinion); see also Christian J. Tams (above note 25), at 150–​151 on the evolution of the discussion in the ilc at the time where indeed the additional consequences for violations of jus cogens were first introduced with a view to the violations of obligations erga omnes.

244 Aust norms and obligations erga omnes. But the Commentary of the ilc also refers to the widely held view that jus cogens is the narrower category of the too.63 Accordingly, there can be no logical inference from a reference to obligations erga omnes to the effects of peremptory norms in terms of cooperation. The reasons for the Court’s reticence to connect its findings to jus cogens are not entirely obvious. They may well have been different in the two cases.64 In the Wall opinion, it can be noted that the Court had not yet formally embraced the concept of jus cogens as such, apart from a passing reference in the Nicaragua decision.65 Only beginning with the decision on jurisdiction in the Armed Activities on the Territory of the Congo case between the Democratic Republic of the Congo and Rwanda did the Court cautiously refer to the concept of peremptory norms as such.66 For the Chagos case, other considerations may have played a role. For one, it was already a noteworthy step to affirm that the principle of self-​determination constituted customary international law at the time of the separation of the Chagos Island from Mauritius in 1965. Affirming also its jus cogens character –​a prerequisite for triggering the direct applicability of Article 41 of the Articles on State Responsibility –​for that moment in time might have been a step too far.67 One can also wonder whether some judges might have had second thoughts on the legal consequences that such a finding might have entailed for existing treaty relations between the United Kingdom and third States with respect to the Chagos Island.68 Yet, just as it may be doubtful whether self-​determination was indeed a jus cogens norm in 63 64 65

66 67

68

Commentary to Draft Conclusion 17 of the Draft Conclusions (above note 10). With respect to the formulation in the Wall opinion see Daniel Costelloe (above note 5), at 223. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, icj Reports 1986, p. 14, at para. 190 (the reference was part of a quotation of the work of the ilc on the peremptory nature of the prohibition of the use of force, cf. para 1 of the Commentary to Article 50 of its Draft Articles on the Law of Treaties); on this reluctance of the Court see also Simon Olleson The Impact of the ilc’s Articles on Responsibility of States for Internationally Wrongful Acts (British Institute of International and Comparative Law, 2009), at 239. Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, icj Reports 2006, p. 6, at para. 64. But, see Separate Opinion of Judge Robinson Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (above note 31), at para. 48 et seq.; see further Fernando Lusa Bordin “Reckoning with British Colonialism: The Chagos Advisory Opinion” (2019) 78 The Cambridge Law Journal 253, at 256–​257; Stephen Allen “Self-​Determination, The Chagos Advisory Opinion and the Chagossians” (2020) 69 International and Comparative Law Quarterly 203, at 213. See also Stephen Allen (above note 67), at 214.

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1965, the question whether it triggered obligations erga omnes is also on the table. The Court accordingly primarily emphasized the important role of the UN General Assembly for the process of decolonization. Its finding regarding an obligation of cooperation to bring to an end the administration of the United Kingdom of the Chagos Island focuses on “all Member States” of the UN.69 This was rightly taken note of by the ilc in connection with the effects that the obligation of cooperation might have regarding voting in the organs of the UN. However, it also casts some doubts on the question of whether the Chagos opinion makes a strong case for identifying an obligation of cooperation in international law. A similar question arises when it comes to the Draft Articles on the Protection of Persons in the Event of Natural Disasters.70 It is true that Draft Article 7 as adopted by the Commission recognizes a general obligation of cooperation. Apart from the fact that this obligation is subject to a number of qualifications in the text itself as well as in other Draft Articles of the same project and the related commentaries, it is quite another question whether it refers to the same obligation of cooperation that is envisaged in Article 41(1) of the Articles on State Responsibility.71 At the same time, not too much emphasis should be put on this distinction as it is indeed possible that a general obligation of cooperation might help to consolidate the more specific obligation to cooperate in the face of a serious breach of a peremptory norm of general international law. The picture is hence quite mixed. Neither the icj advisory opinions nor the recent ilc work on the Protection of Persons strongly bolster the finding that the obligation of cooperation has matured into binding law. The two advisory opinions are somewhat inconclusive in this regard. The affirmation of such an obligation by one domestic court and a regional human rights court would not normally suffice to establish the customary international law character of a rule. There may be more available court practice, such as a 2004 decision of 69 70 71

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (above note 31), at para. 180. Draft articles on the protection of persons in the event of disasters (above note 32). For previous skeptical positions in the literature on the relationship between a general obligation of cooperation and one pertaining to serious breaches of peremptory norms see Georg Nolte “Zusammenarbeit der Staaten bei der Friedenssicherung –​Steuerung durch Haftungsrecht” in Breuer et al. (eds.) Im Dienste des Menschen: Recht, Staat und Staatengemeinschaft. Forschungskolloquium anlässlich der Emeritierung von Eckart Klein (Duncker & Humblot, 2009), at 20–​21; Alain Pellet “Les articles de la CDI sur la responsabilité de l’etat pour fait internationalement illicite suite –​et fin? ” (2002) 48 Annuare français de droit international 1, at 17; for a different view Andrea Gattini “A return ticket to ‘Communitarisme’, Please” (2002) 13 European Journal of International Law 1181, at 1186.

246 Aust the German Constitutional Court that the ilc did not refer to.72 Also, in the case law of the European Court of Human Rights, one finds isolated references to an obligation of cooperation to ensure the protection of the rights set forth in the Convention.73 However, there also seems to be a lack of practice otherwise. The last almost twenty years were not short of situations which involved serious breaches of peremptory norms of general international law. The ongoing conflict in Syria is just the most scathing example where an abundance of instances where such serious violations have occurred. This state of affairs relates to a more general dilemma regarding the development of the law of State responsibility: it is not always in the interest of States –​as perceived by them –​to bind themselves to stricter rules, especially if such rules might demand proactive action from their part.74 While this is not a reason to depart from general standards for the establishment of customary international law, it points to the difficulties to go beyond a well-​accepted acquis. Further entrenching an obligation of cooperation to react to serious breaches of peremptory norms of general international law might also be at a crossroads with the prevailing Zeitgeist. Moreover, the question of whether the international rule of law is on the rise or in decline is firmly on the table. Although this question can be answered in many different ways, it is hard to disagree with the statement that “the role of international law as a necessary or useful tool for international relations and cooperation” is being called into question.75 The cooperation taken into account in this quotation is not the obligation of cooperation as set forth by Article 41(1) of the Articles on State Responsibility and dc 19(1) of the 2019 72

BVerfGE 112, 1, 35 –​Alteigentümer, even though it is unclear whether the brief reference of the Court to Article 41(1) of the Articles on State Responsibility was based on a thorough assessment of whether international law had indeed moved beyond the 2001 acquis. 73 See Güzelyurtlu and others v. Cyprus and Turkey, Judgment of the European Court of Human Rights (ECtHR), 29 January 2019, at para. 232-​233. 74 While it may be argued that this is a general problem for international law which seeks to restrain States, the connection with wrongful conduct in the law of State responsibility might explain why this is especially acute in this context, see already in this regard Bruno Simma “Grundfragen der Staatenverantwortlichkeit in der Arbeit der International Law Commission” (1986) 24 Archiv des Völkerrechts 357, at 358; see also Christian Dominicé “ ‘Responsabilité des etats et responsabilité international’: commentaires sur l’approche de la Commission” in United Nations (ed.) The International Law Commission Fifty Years After: An Evaluation (United Nations, 2000), at 31. 75 Heike Krieger and Georg Nolte “The International Rule of Law –​Rise or Decline? Approaching Current Foundational Challenges” in Heike Krieger, Georg Nolte and Andreas Zimmermann (eds.) The International Rule of Law –​Rise or Decline? (Oxford University Press, 2019), at 11.

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Draft Conclusions. Yet, it is not far-​fetched to assume that the fulfilment of the latter will not be easier in an international environment in which isolationism, nationalism and nativist populism have begun to thrive, although the establishment of causal relations between these different aspects might of course be difficult.76 5.2 The Obligation of Non-​Recognition If the positive obligation of cooperation might not be the most auspicious context to look for progress in the development of the law, the “negative” obligations of non-​recognition and non-​assistance might be more promising. Of the additional consequences set forth in Article 41(2) of the Articles on State Responsibility and integrated into Draft Conclusion 19, the obligation of non-​ recognition has the longest pedigree in international law.77 Dating back to the Stimson doctrine of 1932,78 it requires States not to recognize as lawful the outcome of certain violations of peremptory norms of general international law.79 The Commentary to Draft Conclusion 19 characterizes the obligation of non-​ recognition as “settled”.80 Yet, also here questions persist. For one, it is still fairly unclear how this obligation applies to non-​territorial and non-​status-​based violations of jus cogens.81 As regards the prohibition of the use of force it is indeed settled law that no forcible acquisition of territory 76

77 78

79

80 81

On the changing environment for international cooperation see further Helmut Philipp Aust “The Democratic Challenge to Foreign Relations Law in Transatlantic Perspective” in Jacco Bomhoff, David Dyzenhaus and Thomas Poole (eds.) The Double-​Facing Constitution. Legal Externalities and the Reshaping of the Constitutional Order (Cambridge University Press, 2020), at 350–​352; Heike Krieger “Populist Governments and International Law” (2019) 30 European Journal of International Law 971. See Hersch Lauterpacht Recognition in International Law (Cambridge University Press, 1947), at 409 et seq. David Turns “The Stimson Doctrine of Non-​Recognition: Its Historical Genesis and Influence on Contemporary International Law” (2003) 2 Chinese Journal of International Law 105; Stefan Talmon Kollektive Nichtanerkennung illegaler Staaten (Mohr Siebeck, 2006), at 90 et seq. Stefan Talmon “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breach of a Jus Cogens Obligation: An Obligation without Real Substance?” in Christian Tomuschat and Jean-​Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order (Martinus Nijhoff, 2006). Para 8 of the Commentary to Draft Art 19 of the Draft Conclusions (above note 10). Critical in this regard already Christian Tomuschat “International Crimes by States: An Endangered Species?” in Karel Wellens (ed.), International Law: Theory and Practice. Essays in Honour of Eric Suy (Martinus Nijhoff, 1998), at 258–​259; Martin Dawidowicz “The Obligation of Non-​Recognition of an Unlawful Situation” in James Crawford, Alain Pellet, and Simon Olleson and Kate Parlett (above note 11), at 683.

248 Aust is allowed under international law. It is much more uncertain how the obligation of non-​recognition plays out in other contexts. One fairly popular theory is still to argue that the granting of State immunity as well as immunity for State officials in the case of serious breaches of peremptory norms would amount to a form of recognition of these acts as lawful.82 This argument is already questionable insofar as respecting the immunity of a State or a State official was never understood in international law to imply that the immunity-​ granting State would consider the underlying conduct to be lawful. Apart from that, the icj has quite forcefully blocked off the route to such an argument in its Jurisdictional Immunities case.83 The ilc eventually, and perhaps wisely, refrained from considering the relationship between peremptory norms and immunities in the context of the jus cogens project as such consequences would not be “general consequences” of peremptory norms but would rather relate to specific peremptory norms of general international law.84 But even for the consolidated core of the territorial aspects of non-​ recognition, the situation appears to be more unsettled than a couple of years ago. At least, international practice has been lacking in terms of consistency in recent years. Two examples stand out in this regard. Consider first the reaction of the international community of States to the illegal annexation of Crimea by Russia in 2014.85 For obvious reasons the UN Security Council was not available to take action against this violation of Article 2(4) of the UN Charter.86 The General Assembly did adopt a resolution which did not clearly condemn Russia for violating this cornerstone of the UN Charter. Nevertheless, it did affirm the territorial integrity of Ukraine. It also called upon States and International Organisations alike “not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-​mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status”.87 What 82 83 84 85 86 87

Italian Court of Cassation, Ferrini v. Germany, Cass no 5044/​04, ildc 19 (it 2004), at para. 9.1; Alexander Orakhelashvili (above note 8), at 283–​284. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), icj Reports 2012, p. 99, at para. 93. Para 4 of the Commentary to Draft Conclusion 22 of the Draft Conclusions (above note 10). For a general overview see Christian Marxsen “International Law in Crisis: Russia’s Struggle for Recognition” (2015) 58 German Yearbook of International Law 11. As Costelloe points out, “Security Council practice is haphazard and is not primarily judicial, but rather political (…)”. See Costelloe (above note 5), at 203. See Territorial integrity of Ukraine, General Assembly Resolution, Sixty-​eighth Session, General Assembly Official Records (A/​r es/​68/​262) (1 April 2014), at para. 6.

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is noteworthy, however, is that the resolution was adopted with a mere 100 votes in favour and 11 against.88 58 States abstained from the vote on a resolution which was already formulated in a way so as not to maximize the political conflict over Ukraine; a conflict involving a relatively straightforward violation of the prohibition of the use of force. Also in the accompanying debate in the ga before and after the vote, only relatively few States and International Organisations made express mention to non-​recognition –​and not even the statements by those States convey a clear sense that they considered themselves to be under an obligation not to recognize. Their statements can also be read in a factual way, i.e. signalling that they simply do not recognize a territorial change for whatever reasons.89 Another context in which the obligation of non-​recognition may be under pressure pertains to the occupation of the Palestinian territories and East Jerusalem by Israel. This situation is of course quite distinct from the Crimean crisis, as it pertains to the highly complex and very context-​specific situation of the Middle East. The long-​lasting occupation of the Palestinian territories also makes it difficult to apply the principle of non-​recognition without considering the need of the local population.90 As far as Jerusalem is concerned, the basis for an obligation of non-​recognition is clearly formulated in the Security Council Resolution 478.91 Notwithstanding this binding resolution, the United States has officially recognized Jerusalem as Israel’s capital on 6th December

88

89 90

91

See UN Doc. A/​68/​p v.80 (2014), at 17; for a more positive assessment stressing that only very few States recognized the Russian annexation, see Christian Marxsen “The Crimea Crisis –​An International Law Perspective” (2014) 74 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 367, at 391; see also Enrico Milano “The Non-​Recognition of Russia’s Annexation of Crimea: three Different Legal Approaches and one Unanswered Question” (2014) 1 Questions of International Law 35, at 53, who points out that the annexation of Crimea has “met the firm protest of significant parts of the international community”. For direct references to non-​recognition see the European Union (A/​68/​p v.80), at 4; Liechtenstein (A/​68/​p v.80). at 77; Canada (A/​68/​p v.80), at 9; Georgia (A/​68/​p v.80), at 11; Norway (A/​68/​p v.80), at 14. So much is recognized in the almost proverbial ‘Namibia exception’, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, 16, at para. 125. Security Council Resolution 478 (UN sc/​r es/​478) (1980), at para. 5 (a); see further James Crawford The Creation of States in International Law (2nd Edition., Oxford University Press, 2006), at 161.

250 Aust 2017.92 Although this declaration met with fierce criticism by a significant number of States and International Organisations,93 there seem to be further tests for the obligation of non-​recognition ahead with both the “Middle East Peace Plan” presented by the United States and the proposals of the Israeli government pushing for the extension of Israeli sovereignty over significant parts of the occupied Palestinian territories. In this context, the US Secretary of State Pompeo qualified Israeli settlements in the West Bank as “not per se inconsistent with international law”.94 This declaration, as well, met with considerable protest.95 Accordingly, not all is well with respect to the obligation of non-​ recognition. However, not every disregard for this obligation will undermine its normative status. As it is the case in other contexts in international law, violations of a rule do not automatically lead to a change of that rule.96 In particular, it is important to mention that in both the Crimea situation and the Middle East conflict –​all the differences between the two situations notwithstanding –​a significant number of States remain supportive of the obligation of non-​recognition and have also protested against the illegal annexation of Crimea, the declaration of Jerusalem as the Israel capital and the US and Israeli plans for an extension of Israeli sovereignty over the occupied Palestinian territories. Yet the variegated practice of recent years shows that the “compliance pull”97 of the obligation of non-​recognition is not to be taken for granted.

92 93 94 95

96 97

See further documentation by Jean Galbraith “Contemporary Practice of the United States Relating to International Law” (2018) 112 American Journal of International Law 296, at 306. Id., at 308. For documentation see Jean Galbraith “Contemporary Practice of the United States Relating to International Law” (2020) 114 American Journal of International Law 288, at 296. See, for instance, the statement by UK Foreign Minister Raab of 31 January 2020, available at https://​www.gov.uk/​government/​news/​possible-​israeli-​annexation-​of-​the-​west-​ bank-​foreign-​secretary-​statement (accessed on 4 May 2020); the statement by EU High Representative Josep Borrell of 23 April 2020, available at https://​eeas.europa.eu/​headquarters/​headquarters-​homepage/​77856/​israel-​statement-​high-​representative-​josep-​ borrell_​en (accessed on 4 May 2020). See para 8 Commentary to Conclusion 8 of the Draft conclusions on identification of customary international law, Report of the International Law, Seventieth Session, General Assembly Official Records (A/​73/​10), Chapter v. The expression was famously coined by Thomas M. Franck “Legitimacy in the International System” (1988) 82 American Journal of International Law 705, at 712.

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5.3 The Obligation of Non-​Assistance In comparison, things look calmer with respect to the third additional consequence that Article 41 of the Articles on State Responsibility and Draft Conclusion 19 spell out for serious breaches of peremptory norms of general international law, the obligation not to render aid or assistance for the maintenance of a situation brought about by such a breach. Here, the normative development takes place in a different environment. Article 41(2) of the Articles on State Responsibility is but a special emanation of a general rule on inter-​State complicity which is embodied in Article 16 of the Articles on State Responsibility. When the Articles on State Responsibility were adopted in 2001, the status of this latter provision as representing customary international law was still considered to be in doubt by some.98 Yet, the unequivocal assertion by the icj that Article 16 of the Articles on State Responsibility indeed represented customary international law settled that question for good.99 The general provision on complicity has also been the subject of an ever-​expanding field of scholarly contributions.100 In that sense, in comparison to the two other obligations set forth in the serious breaches regime, the obligation of non-​assistance is more deeply embedded in the structure of international law. There is also an emerging scholarly consensus that the obligation of non-​assistance under Article 41(2) of the Articles on State Responsibility can be distinguished from its counterpart in Article 16 of the Articles on State Responsibility not only 98

For an overview of the positions in the debate and more references see Aust (above note 8), at 97–​100; Compare also Jean d’Aspremont “Rebellion and State Responsibility: Wrongdoing by Democratically Elected Insurgents” (2009) 58 The International and Comparative Law Quarterly 427, at 432 with note 32 (holding that Article 16 of the Articles on State Responsibility in all likelihood lacked the quality of being representative of customary international law in 2001, but had since acquired it). 99 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj Reports 2007, 43, at para. 420. 100 See Andreas Felder Die Beihilfe im Recht der völkerrechtlichen Staatenverantwortlichkeit (Schulthess, 2007); Georg Nolte and Helmut Philipp Aust “Equivocal Helpers –​Complicit States, Mixed Messages and International Law” (2009) 58 International and Comparative Law Quarterly 1; Aust (above note 8); Miles Jackson Complicity in International Law (Oxford, 2015); Vladyslav Lanovoy, Complicity and its Limits in the Law of International Responsibility (Bloomsbury, 2016); Erika de Wet “Complicity in Violations of Human Rights and Humanitarian Law by Incumbent Governments through Direct Military Assistance on Request” (2018) 67 International and Comparative Law Quarterly 287; Harriet Moynihan “Aiding and Assisting: The Mental Element under Article 16 of the International Law Commission’s Articles on State Responsibility” (2018) 67 International and Comparative Law Quarterly 455; Magdalena Pacholska Complicity and the Law of International Organizations: Responsibility for Human Rights and Humanitarian Law Violations in UN Peace Operations (Edward Elgar, 2020).

252 Aust on the basis of its temporal applicability (after the fact), but also insofar as it is further-​reaching and demands more of States in order to avoid becoming complicit.101 At the same time, it is certainly not the case that the mere existence of provisions on non-​aid or assistance have led to a world in which complicity in violations of international law no longer occurs. Similar considerations to those applicable for the obligation of non-​recognition apply here as well: non-​ adherence to the rule does not diminish its status as binding international law. Hence, the persistent violations of international law in the Syria conflict play out differently here as compared to the alleged obligation of cooperation: whereas the flagrant disrespect for international law and non-​cooperation among States to bring serious breaches of peremptory norms in this conflict to an end makes it difficult to argue that the obligation of cooperation has risen to the status of a positive rule of international law, the frequent violations do not suffice to shatter the normative status of an already existing rule.102 In fact, in some respects, international law has further consolidated with respect to the prohibition to render aid or assistance to the commission of internationally wrongful acts. Consider, for instance, the by now well-​entrenched case law of the ECtHR which holds States parties to the echr directly responsible for their role in the US programme of “extraordinary renditions”.103 The ECtHR regularly refers to Article 16 of the Articles on State Responsibility as relevant law in these cases, but decides them on the basis of the violation of positive obligations of Articles 3 and 5 echr.104 This has mainly jurisdictional reasons and can be seen as a specific translation of the idea of responsibility for complicity into the doctrinal categories of the echr.105 Yet, it is important 101 Aust (above note 8), at 340–​342; Lanovoy (above note 100), at 106–​110; Moynihan (above note 100), at 470; Pacholska (above note 100), at 128. 102 On instances of complicity in the Syrian conflict, in particular with respect to Russian support to the Syrian government see de Wet (above note 100), at 294–​295. 103 This case law started with El-​Masri v. ‘The Former Yugoslav Republic of Macedonia’, Judgment of the European Court of Huma Rights, 13 December 2012; further decisions: Al-​Nashiri v. Poland, Judgment of the ECtHR, 24 July 2014 and Husayn (Abu Zubaydah) v. Poland, Judgment of the European Court of Human Rights, 24 July 2014; Nasr and Ghali v. Italy, Judgment of the European Court of Human Rights, 6 August 2009; Abu Zubaydah v. Lithuania, Judgment of the European Court of Human Rights, 31 May 2018; Al Nashiri v. Romania, Judgment of the ECtHR, 31 May 2018. 104 See, for instance el-​Masri (above note 103), at para. 97. 105 For an assessment of this case law see André Nollkaemper “Complicity in International Law: Some Lessons from the U.S. Rendition Program” (2015) 109 Proceedings of the Annual Meeting of the American Society of International Law 177; Miles Jackson “Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction” (2016) 27 European Journal of International Law 817; James Crawford and Amelia Keene “The Structure of

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to notice that, strictly speaking, this line of case-​law only counts as “supportive” practice for Article 16 of the Articles on State Responsibility and for Article 41(2) of arsiwa and dc 19(2) of the 2019 Draft Conclusions given their focus on aid or assistance “after the fact”. But the ECtHR decisions certainly point to the direction that arguably serious breaches of peremptory norms –​given that the prohibition of torture, enforced disappearances and incommunicado detentions have been at stake –​will trigger the responsibility of assisting States in ways beyond the conceptualisation of both Article 16 of the Articles on State Responsibility and direct responsibility under the echr. 6

Concluding Remarks

Recent international practice is hence mixed. It is fair to say that recent developments have not propelled the serious breaches regime much further beyond the State of the law that the ilc identified when it concluded its work in the field of State responsibility in 2001. While some may consider the results of the ilc in its project on peremptory norms of general international law (jus cogens) to be too timid, the Commission was arguably correct in not broadening the legal consequences of violations of peremptory norms any further. In this context, it is revealing to note that an academic project which very much started out with challenging the narrow focus of the ilc work in the field of State responsibility did not arrive at significantly different legal consequences where breaches of jus cogens are at stake.106 At the same time, the Commission’s work is certainly not a mere “effort to imagine” which deductively identified new legal consequences of jus cogens violations out of touch with the realities of international practice. In the specific context of State responsibility, the Commission has been pushing the envelope only in terms of the obligation of cooperation where it now sees evidence for a recognition of this obligation in positive international law. As it was demonstrated above, this conclusion does not impose itself automatically in the light of international practice which continues to be scarce in this respect. In the light of current political developments on the world stage, it State Responsibility under the European Convention on Human Rights” in Anne van Aaken and Iulia Motoc (eds.) The European Convention on Human Rights and General International Law (Oxford, 2018) 178. 106 André Nollkaemper, Jean d’Aspremont, Christiane Ahlborn, Berenice Boutin, Nataša Nedeski and Ilias Plakokefalos “Guiding Principles on Shared Responsibility in International Law” (2020) 31 European Journal of International Law 15, at Principle 13.

254 Aust may hence be no surprise that the obligations of abstention that Article 41(2) of the Articles on State Responsibility and dc 19(2) of the Draft Conclusions foresee seem to rest on a more solid grounding in international practice. And even here, as the discussion of the obligation of non-​recognition has shown, not everything is well and support for this crucial obligation which is meant to safeguard the cornerstone provision of the UN Charter, its prohibition on the use of force in Article 2(4). This state of affairs invites reflections on how this (non-​)development of the law of State responsibility is connected to broader trends in international law. Does the stronger position of the negative duties of abstention as compared to the positive obligation of cooperation tell us something about structural shifts in the international legal order? Does this mean that we may move back from an international law of cooperation to one of coexistence?107 The material assessed in this contribution is certainly too narrow to warrant sweeping conclusions. Yet, it seems to be clear that the law of State responsibility is continually torn between an emphasis of its bilateral structures and attempts to integrate community interests. Shortly after the ilc finished its work on the law of State responsibility in 2001, Georg Nolte wrote that as the international community ha[d]‌become somewhat less antagonistic than during the time of the Cold War, it appears more legitimate again for international lawyers to wait for states to agree on how differentiated the regime of state responsibility should be.108 For the time being, much movement in the direction of a more differentiated regime of State responsibility is not to be expected. This also has institutional repercussions for the ilc. One can have different views about the merits of projects which do not seem to add much to the existing acquis of international law at first sight. But maybe current times show that a consolidation of the existing law can be as useful as an “effort to imagine”. This was certainly the spirit in the Commission when it discussed the reports of the Special Rapporteur on jus cogens. It was also mirrored in the debates in the Sixth Committee where most States urged the Commission to be careful in its dealing with the topic on peremptory norms. One can be cynical about this and lament that States will never push for the big jump forward, especially not when it comes to rules which might come back to bind them and require of 107 Cf. Wolfgang Friedmann, The Changing Structure of International Law (Stevens, 1964), at 60–​74. 108 Georg Nolte (above note 23), at 1098.

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them to offer reparation for their wrongs. Yet, this might be hardly surprising. The law of State responsibility is certainly part of the general infrastructure of international law. It may hence not be an ideal candidate for experimentation, certainly not in the times we are living through.

Acknowledgements

I wish to thank Prisca Feihle, Thomas Kleinlein and Sophie Schuberth for comments and criticism of an earlier draft as well my student assistant Felix Schott for valuable research support. All errors and mistakes my own.

pa rt 2 Institutions and Peremptory Norms

∵

Chapter 10

African State Practice and the Formation of Some Peremptory Norms of General International Law Tiyanjana Maluwa 1

Introduction

At its seventy-​ first session in 2019, the International Law Commission (Commission) considered the fourth report of the Special Rapporteur on peremptory norms of general international law (jus cogens) and adopted a set of twenty-​three draft conclusions with commentaries on first reading.1 The Commission also adopted an illustrative list, in an annex to the report, of norms that it considered “candidates” for jus cogens.2 All the listed norms are relevant and consequential to African States, which arguably have generally accepted and recognized them as such. As a non-​exhaustive list, it does not exclude other norms that may also qualify as peremptory norms of general international law or jus cogens. Earlier in its work, the Commission had addressed the possibility of regional jus cogens and its universal applicability. It decided not to include such a discussion within the scope of the present topic, without prejudice to the question of the possible existence or not of regional jus cogens.3 The Commission’s acceptance of the widely accepted view that peremptory norms of general international law reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable,4 would, on the face of it, make the notion of regional jus cogens seem logically untenable. However, this does not preclude

1 See Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​first Session, General Assembly Official Records(A/​74/​10) (2019), at Chapter v. 2 Id., annex to the Draft Conclusions listing (a) the prohibition of aggression; (b) the prohibition of genocide; (c) the prohibition of crimes against humanity; (d) the basic rules of international humanitarian law; (e) the prohibition of racial discrimination and apartheid; (f) the prohibition of slavery; (g) the prohibition of torture; and (h) the right of self-​determination. 3 See, id., Commentary to Draft Conclusion 1. 4 Id., Commentary to Draft Conclusion 3.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_011

260 Maluwa the possibility that regional systems might contribute towards the making of universally applicable peremptory norms of general international law. In this chapter, I discuss selected examples of areas in which African States, through their practice, including regional multilateral treaties, have made such contributions. The selected cases are not the only areas in which African States have signified their acceptance and recognition of peremptory norms of general international law. They, however, illustrate the acceptance and recognition of such norms through treaty provisions, which may serve as bases for peremptory norms of general international law, apart from customary international law and general principles of law. This contribution focuses on three issues. The first issue relates to the right of self-​determination. The second is the application of the principle of non-​refoulement in international refugee law. The third issue concerns the right of intervention; more specifically, the right of the African Union (au) to intervene in a State to enforce the prohibitions of genocide, war crimes and crimes against humanity, or to prevent widespread death or suffering amongst the population. The Organization of African Unity (oau) was the first continental organization established by newly independent African States when they adopted the Organization of African Unity Charter (oau Charter) on 25 May 1963.5 One of the purposes set out in Article ii of the oau Charter was the eradication of all forms of colonialism from the continent.6 This objective was underpinned by one of the principles enshrined in Article iii, affirming and declaring the adherence of the Member States to “[absolute] dedication to the total emancipation of the African territories which are still dependent.”7 Subsequently, oau Member States adopted the African Charter on Human and Peoples’ Rights in 1981 (African Charter). Article 20(1) of the African Charter guarantees to all people the unquestionable and inalienable right of self-​ determination.8 The African Charter, which has been ratified or acceded to by 54 of the 55 au Member States (with the exception of Morocco), provides the second treaty basis for the right of self-​determination. The pursuit of the right 5 The Organization of African Unity Charter (oau Charter) establishing the oau was adopted by the Conference of Independent African States in Addis Ababa, Ethiopia, on 25 May 1963. The oau Charter was initially signed by 32 Heads of State and Government. It entered into force on 13 September 1963. 6 oau Charter, at art ii(1)(d). 7 Id., at art. iii(6). 8 1981 African Charter on Human Peoples’ Rights. Article 20(1) provides: “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-​ determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.”

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of self-​determination for colonized African peoples and territories was thus at the centre of the organization’s concerns from the start. Another early concern was the protection of refugees, most of whom fled their countries of origin due to the ongoing anti-​colonial struggles in those countries. Consequently, one of the earliest treaties adopted under the auspices of the newly established organization was the oau Convention Governing Specific Aspects of the Refugee Problem in Africa (oau Refugee Convention)9 which, inter alia, articulates the principle of non-​refoulement.10 African States have had many other concerns besides. On 11 July 2000, the oau Member States adopted the Constitutive Act of the African Union (au Constitutive Act), which established a new organization to replace the oau.11 One of the principles set out in the au Constitutive Act is “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.”12 The non-​exhaustive list of “candidates” for peremptory norms of international law referred to above includes norms that have been a concern of both the oau and au: the right of self-​determination; prohibitions of crimes against humanity and genocide; and the basic rules of international humanitarian law, a category that includes war crimes. Some scholars argue that the principle of non-​refoulement, which is not in the list of candidates identified by the Commission, is also a peremptory norm of general international law.13 The International Criminal Court (icc) has reached the same conclusion.14 The aim of this chapter is to address the following question: how, and to what extent, has the African system contributed to the emergence of these norms as having peremptory character? The case for the specific peremptory norms mentioned above lies in treaties and resolutions adopted by the oau and au over the years. This is consistent with the Commission’s view that 9 1969 oau Convention Governing Specific Aspects of the Refugee Problem in Africa. 10 Id., Art. ii(3). 11 2000 Constitutive Act of the African Union. The African Union was established by the Constitutive Act of the African Union (au Constitutive Act), adopted by the oau Assembly on 11 July 2000 in Lomé, Togo, to replace the oau. The Constitutive Act entered into force on 26 May 2001 but, under the terms of its Article 33, the oau continued in existence for a transitional period until the formal inauguration of the au on 9 July 2002 in Durban, South Africa. 12 au Constitutive Act, Art. 4(h). 13 See below footnotes 114 and 115; see also Fourth Report of Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019), at paras. 131–​133. 14 See further discussion in Section 3 below.

262 Maluwa forms of evidence of the acceptance and recognition of peremptory norms include treaty provisions and resolutions adopted by an international organization or at an intergovernmental conference.15 The Assembly of Heads of State and Government (Assembly) is the supreme policy-​making organ of the au, as it was under the oau. One of its cardinal functions is that of discussing matters of common concern to the African continent with a view to coordinating and harmonizing the general policy of the organization or adopting African common positions on specific matters of international concern. The Assembly, therefore, possesses the supreme authority to take decisions for the general good of the Member States. It does so through the adoption of resolutions.16 Some of these resolutions concern the adoption of treaties negotiated by the Member States under the auspices of the organization, such as the oau Refugee Convention and the au Constitutive Act. In its 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, the Commission stated that the peremptory norms “clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-​determination.”17 Yet almost two decades later, while replicating the foregoing list in the annex to the Special Rapporteur’s report, as mentioned above, the Commission recognized that it was neither possible nor desirable to draw up an exhaustive list of norms. The non-​exhaustive list in the annex is “without prejudice to the existence or subsequent emergence of other peremptory norms.”18 Thus, this discussion must start with the acknowledgement that while there is a settled consensus on the jus cogens status of some norms, there is no agreed consensus on the range and identification of specific norms that have a peremptory character. In the discussion that follows, I do not examine the nature and content of the selected norms as peremptory norms of general international law or, indeed, whether there is a consensus on each of them. There is a copious amount of literature—​including some of the contributions in this volume—​examining and affirming the jus cogens nature of the right of self-​determination, the 15 16 17 18

See, Commentary to Draft Conclusion 8 of the Draft Conclusions on Peremptory Norms (above note 1). Under both the oau and the au, the Assembly’s resolutions are categorized as either “decisions” or “declarations”. Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​third Session, General Assembly Official Records(A/​ 56/​10) (2001). See Commentary to Draft Conclusion 23 of the Draft Conclusions on Peremptory Norms (above note 1).

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principle of non-​refoulement, the prohibitions of genocide, war crimes and crimes against humanity, as well as terrorism and some human rights norms. Given the limited objective of this chapter—​the examination of African state practice—​I will not rehearse these conceptual debates. 2

The Principle of Self-​Determination in oau and au Practice

The principle of self-​determination illustrates the challenge of reaching uncontested consensus on some of the norms that are generally accepted and recognized as peremptory norms of general international law. Although widely regarded as a jus cogens norm, disagreement remains as to its precise definition or the circumstances to which it applies. As John Dugard observed a little over three decades ago, “[much] of the support for the principle of self-​ determination as a legal right and as a peremptory norm is couched in generalisations and little attempt is made to define the content of the right with any precision.”19 This remains true today. In Africa, the imprecisely defined right of self-​determination has largely been realized through the political process of decolonization, which Jean Allain has described as the source of the concepts of jus cogens and obligations erga omnes.20 When Ethiopia and Liberia instituted proceedings against the Union of South Africa in the South West Africa Cases on 4 November 1960, they did so against the background of the ongoing anti-​colonial campaigns and nascent national liberation struggles across the continent. This was, of course, before the establishment of the oau, and the commitment of the newly emergent African States, through the oau Charter, to eradicate of all forms of colonialism and emancipate still dependent African territories. There has been much discussion of the symbolic significance of the South West Africa Cases as the first attempt by independent African countries before and following the establishment of the oau to push for the realization of the right of self-​determination and emancipation of colonized people in another African territory. While the cases ended in disappointment for the applicants

19 20

John Dugard Recognition and the United Nations (Grotius, 1987), at 160. See generally Jean Allain “Decolonisation as the Source of the Concepts of Jus Cogens and Obligations Erga Omnes” (2016) 1 Ethiopian Yearbook of International Law 35, at 57 (describing decolonization as the engine that pushed the International Law Commission to develop the conception of jus cogens within the law of treaties and the International Court of Justice to establish obligations erga omnes).

264 Maluwa and supporters of decolonization in Africa with the controversial 1966 icj judgment,21 it did not blunt the rising tide of the decolonization process. On the contrary, the severe and deserved fallout from the judgment spurred the un General Assembly into action, when on 27 October 1966 it reaffirmed the “inalienable right of the people of South West Africa to freedom and independence”, including the “inalienable right of self-​determination”.22 The General Assembly also “condemned the policies of apartheid and racial discrimination practised by the Government of South Africa in South West Africa as constituting a crime against humanity” and terminated South Africa’s Mandate over South West Africa.23 2.1 Decolonization and the Right of Self-​Determination As former colonies of European powers, with the two notable exceptions of Ethiopia and Liberia, the newly independent African States that established the oau, or joined as members later, placed decolonization and the total emancipation of the continent at the top of the organization’s agenda. The singular focus on this objective continued through the decades with collective support extended to the peoples and territories under colonial occupation or foreign domination. South West Africa eventually achieved independence as Namibia on 21 March 1990, and became a member of the oau on 1 June 1990.24 After Namibia, Eritrea (24 May 1993) and South Africa (6 June 1994) joined the oau. Eritrea became an independent State after 99.83% of Eritreans voted in favour of independence in an UN-​sponsored, Ethiopia-​supported, referendum in April 1993. South Africa joined the oau after the demise of the apartheid regime and its replacement by a democratic, non-​racial majority government. Neither was a case of classical decolonization from erstwhile European powers. They were, respectively, outcomes of liberation struggles against external domination and a racist minority regime, and assertion of the right of self-​determination.25 21 22 23 24

25

South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) Second Phase, icj Reports 1966, at p. 6. UN General Assembly Resolution 2145 (A/​Res/​21/​2145) (1966). Id. The termination of South Africa’s Mandate was followed by a protracted liberation war waged by the South West Africa Peoples’ Organization (swapo). In 1988, the South African government, under a UN-​brokered peace initiative, agreed to give up control of South West Africa. Namibia gained independence after an 11-​month transitional period during which it was administered by the United Nations Transition Assistance Group led by Finnish diplomat Martti Ahtissari. In 2011, South Sudan became Africa’s newest State. It joined the African Union on 27 July 2011. Like Eritrea, its independence followed the outcome of a referendum held, on 9–​15

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African state practice since independence in the late 1950s and early 1960s has demonstrated an unequivocal commitment to the right of self-​ determination. The very first resolution adopted by the Summit Conference of Independent African States, which adopted the oau Charter on 25 May 1963, was on self-​determination. Under the resolution, the Summit Conference, inter alia, invited: [the] colonial powers to take the necessary measures for the immediate application of the declaration of the Granting of Independence to Colonial Countries and Peoples; and insists that their determination to maintain colonies or semi-​colonies in Africa constitutes a menace to the peace of the continent.26 The summit also established a nine-​member committee, the Coordinating Committee for the Liberation of Africa (more commonly known as the oau Liberation Committee), responsible for harmonizing assistance from African States and for managing the Special Fund for liberation movements fighting for the independence of colonized territories.27 Over the subsequent years, the oau Assembly adopted multiple resolutions calling for the decolonization and self-​determination of specific territories still under colonial rule or foreign occupation and affirming the organization’s support for the various national liberation movements in those territories. For three decades, the oau Liberation Committee coordinated the organization’s activities in pursuit of the objective of eradicating all forms of colonialism from Africa until its dissolution by a decision of the oau Assembly in June 1994.28 As an aspect of its functions, the oau Liberation Committee, which operated from its headquarters in the Tanzanian capital of Dar-​es-​Salaam, also provided guidance to the oau’s policy-​making organs (the Assembly of Heads of State and Government

26 27 28

January 2011, to secede from Sudan. The vote in favour was near-​unanimous, at 99%. See Josh Kron and Jeffrey Gettleman, “South Sudanese Vote Overwhelmingly for Secession”, The New York Times, 21 January 2011 available at https://​www.nytimes.com/​2011/​01/​22/​ world/​africa/​22sudan.html (accessed 14 October 2020). Resolution of the oau Conference of Independent African States (cias/​Plen.2/​Rev.2/​A) (1963), at para. 2 on decolonization. The initial membership of the committee consisted of Algeria, Ethiopia, Guinea, Congo (Leopoldville), Nigeria, Senegal, Tanganyika, United Arab Republic and Uganda. Resolution of oau Assembly of Heads of States (ahg/​Res.228(xxx)) (1994) on the dissolution of the oau Liberation Committee. For a comprehensive account of the history and work of the oau Liberation Committee, see Mononi Ngongo The oau Liberation Committee (University Microfilms, 1975); C. Amate Inside the oau: Pan-​Africanism in Practice (Palgrave Macmillan, 1986), at 211–​240.

266 Maluwa and the Council of Ministers). It coordinated policy and made recommendations on the situation of colonial and dependent territories and the ongoing struggles for the right of self-​determination in those territories. At its first ordinary Session held in Cairo, Egypt, in 1964, the Assembly adopted resolutions reaffirming the dual objectives of the oau Member States: eradicating colonialism and supporting the various struggles for the independence of territories under foreign domination. These resolutions singled out Southern Rhodesia29 and the Portuguese colonies.30 Subsequent resolutions adopted by the oau Assembly continued to reaffirm the commitment of oau Member States to the principle of self-​determination.31 The oau remained seized of the anti-​colonial struggles in these and all other remaining colonial territories, including the Comoro Islands (Union of the Comoros),32 French Somaliland (Djibouti),33 and South West Africa (Namibia),34 until they all achieved independent statehood and became members of the oau. Another territory on the oau’s agenda was Spanish Sahara (Western Sahara), which Spain left in a messy decolonization process in February 1976 that opened the way for neighbours Mauritania and Morocco to stake rival claims over the territory.35 2.2 The Western Sahara: Deferred Self-​Determination The statehood of Western Sahara and its claim to independence remain contested. It is a disputed territory, only partially controlled by the Sahrawi Arab Democratic Republic (sadr). The Polisario Front, the national liberation movement, declared sadr’s independence on 27 February 1976. Mauritania 29 30 31

32

33 34 35

oau Assembly Resolution (ahg/​Res.8(i)) (1964) on Southern Rhodesia. oau Assembly Resolution (ahg/​Res.9(i)) (1964) on Territories under Portuguese Domination. oau Assembly Resolution (ahg/​Res.34(ii)) (1965) on Apartheid and Racial discrimination in the Republic of South Africa; oau Assembly Resolution (ahg/​Res.35(ii)) (1965) on Territories under Portuguese Domination; oau Assembly Resolution (ahg/​Res.89(xv)) (1978) special resolution on Sanctions against the Smith Regime. The Union of Comoros, a member of the oau since 18 July 1975, became independent on 6 July 1975 but without the Island of Mayotte, which France continues to maintain as its “overseas department”, despite Comoro’s claims of sovereingty over it, backed by resolutions of the oau and UN. See, e.g., Resolution of oau Council of Ministers (cm/​ Res.1005(xlii)) (1985) and UN General Assembly (A/​r es/​32/​7) (1977) both on the Question of the Comorian Island of Mayotte. Djibouti became independent on 27 June 1977 and joined the oau on 27 July 1977. See earlier discussion on Namibia’s independence (above note 24). See generally Thomas M. Franck “The Stealing of the Sahara” (1976) 70 American Journal International Law 694.

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and Morocco had invaded the territory on 31 October 1975, as Spain was preparing to leave the colony. Mauritania withdrew its claim in 1979. Morocco still occupies the greater part of Western Sahara, estimated at between 75% and 80% of the territory.36 Recognized by a bare majority of oau Member States at the time, 26 out of 50, sadr was admitted to the organization in February 1982.37 Morocco opposed the move on procedural and legal grounds. First, Morocco alleged that the oau Assembly had agreed at a previous meeting to delegate the question of Western Sahara to an extraordinary session of the Assembly, while the session at which sadr was admitted was an ordinary session. Second, it contended that sadr did not satisfy the criteria for statehood. Morocco based its argument that sadr did not satisfy the criteria for statehood partly on the premise that it did not administer and control its territory. But this was a self-​ serving argument since sadr’s inability to control the territory and assert itself as an independent State was solely due to the actions of Morocco itself, namely its presence in the territory and construction of defence walls, and its claim over Western Sahara as an integral part of its own territory.38 This is a claim it had made since its own independence from France on 7 April 1956, but was rejected by the icj in the Western Sahara Advisory Opinion (Western Sahara Case).39 sadr’s admission to the oau led to Morocco’s withdrawal from the organization in 1984.40 Morocco’s refusal to relinquish its territorial claim over Western Sahara saw it stay out of the oau and au for the next 33 years. On 31 January 2017, Morocco joined the au, without abandoning its claim over Western Sahara but at the same time unable to obtain enough support for its desire to see the sadr expelled from the organization.41 In terms of Article

36

See Pamela Epstein “Behind Closed Doors: ‘Autonomous Colonization’ in Post United Nations Era—​The Case of Western Sahara” (2009) 15 Annual Survey of International and Comparative Law 107. 37 See Gino J. Naldi “The Organization of African Unity and the Saharan Arab Democratic Republic” (1982) 26 Journal of African Law 152, at 153, 157–​158. See also Anthony G. Pazzanita “Legal Aspects of Membership in the Organization of African Unity: The Case of Western Sahara” (1984) 17 Case Western Reserve Journal of International Law 123, at 134–​135. 38 Pazzanita, id., at 136, 145–​146. 39 Western Sahara Advisory Opinion (Western Sahara Case), icj Reports 1975, at 12 para. 68. 40 See Amate (above note 28), at 358; Clifford D. May “Morocco Quits O.A.U. Over Polisario”, The New York Times, 13 November 1984, available at https://​www.nytimes.com/​1984/​11/​13/​ world/​morocco-​quits-​oau-​over-​polisario.html (accessed 14 October 2020). 41 au Assembly Decision, (Assembly/​a u/​Dec.639 (xxviii)) (2020), Decision on the Admission of the Kingdom of Morocco to the African Union.

268 Maluwa 3(b) of the au Constitutive Act, the au is obliged to “defend the sovereignty, territorial integrity and independence of its Member States.”42 sadr cannot be compelled to abandon its membership nor is it likely to surrender it voluntarily. Moreover, there is no legal basis in the au Constitutive Act for expulsion from membership. On its part, now that it is a mutual member of the au with sadr, all obligations under the au Constitutive Act are applicable to Morocco in its relations with each of the existing members, including sadr, independent of their mutual recognition as States in international law.43 Among the principles enshrined in Article 4 of the au Constitutive Act binding upon Morocco are sovereign equality and interdependence among Member States,44 respect for borders existing on achievement of independence,45 peaceful resolution of conflicts amongst Member States,46 prohibition of the use of force or threat of force,47 peaceful co-​existence of Member States and their right to live in peace and security,48 and respect for democratic principles and human rights, the rule of law and good governance.49 Consequently, the au continues to uphold the position it reiterated in its Solemn Declaration in 2013, namely to reaffirm the right to self-​determination of the people of Western Sahara, with a view to enable them to effectively exercise sovereignty over their territory.50 Thus, the au’s stance is that Western Sahara remains unfinished business as far as decolonization is concerned, and that supporting this goal is a matter of upholding international law. At the same time, however, the au continues to engage with the un on appropriate mechanisms to ensure that the long-​stalled referendum under the auspices of the United Nations Mission for a Referendum in Western Sahara (minurso) takes place as part of the search for a lasting solution to the problem.51 The decision to admit Morocco to the au while simultaneously maintaining sadr’s membership and continuing to support the right of the people of

42 43 44 45 46 47 48 49 50 51

au Constitutive Act, at art. 3(b). See Arpan Banerjee, “Moroccan Entry to the African Union and the Revival of the Western Sahara Dispute” (2017) 59 Harvard International Law Journal 33, at 36. au Constitutive Act, at Art. 4(a). Id., at Art. 4(b). Id., at Art. 4(e). Id., at Art. 4(f). Id., at Art. 4(i). Id., at Art. 4(m). Solemn Declaration on the 50th Anniversary of the oau/​a u, au Assembly Declaration (au/​Decl.3(xxi)) (2013), at para. B on the struggle against colonialism and the right to self-​determination of people still under colonial rule. See Epstein (above note 36), at 29–​38.

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Western Sahara to self-​determination presented the organization with a legal paradox and a political dilemma. Legally, Morocco’s continued occupation of Western Sahara violates the territorial integrity and sovereignty of sadr, a fellow au Member State. Without a doubt, this constitutes a violation of some of the principles of the au Constitutive Act mentioned above, and should have been reason enough to disqualify Morocco from membership. Politically, the au’s admission of Morocco would seem to cast doubt on the peremptory character of the right of self-​determination. For if the au Member States “accept and recognize” the jus cogens status of self-​determination, as I argue, they should be duty bound to take collective action to address the situation caused by Morocco’s breach of this jus cogens norm, and not aid and abet the perpetration of that breach by admitting it to the organization. I raise these questions not to discuss them fully here, but simply to highlight the paradox and dilemma that confronted African countries when they dealt with Morocco’s application for au membership. The political desire to have the Kingdom of Morocco, a not an insignificant player on the continent, back in the bosom of the African family of nations was widely shared. In the result, the minority of countries that opposed Morocco’s admission contented themselves with the compromise that this would not happen at the cost of sadr’s expulsion from the au, which Morocco would have preferred. The Chagos Archipelago: Contestation over Unfinished Decolonization In 1980, at Mauritius’s urging, the oau Assembly for the first time adopted a resolution on Diego Garcia, the Indian Ocean territory occupied and used for military purposes by the United Kingdom. The resolution cited one of the fundamental principles of the organization, respect for the sovereignty and territorial integrity of each State, and accepted that Diego Garcia had always been an integral part of Mauritius. It consequently demanded the unconditional return of Diego Garcia to Mauritius.52 Diego Garcia is the largest of the 60 islands comprising the Chagos Archipelago, which Mauritius has accused the United Kingdom of illegally detaching from it for inclusion in the newly created British Indian Ocean Territory in 1965, three years before Mauritius’s independence. Twenty years later, at its thirty-​sixth ordinary session in Lomé, Togo, in July 2000, the oau Assembly adopted a resolution on the Chagos Archipelago.53 In it, the oau Assembly expressed concern “that the Chagos 2.3

52 53

Resolution on Diego Garcia, oau Assembly (ahg/​Res.99(xvii)) (1980). Resolution on the Chagos Archipelago, oau Assembly (ahg/​Dec.159(xxxvi)) (2000).

270 Maluwa Archipelago was unilaterally and illegally excised by the colonial power from Mauritius prior to its independence in violation of UN Resolution 1514”,54 and urged the United Kingdom Government to “immediately enter into direct and constructive dialogue with Mauritius so as to enable the early return of sovereignty of Mauritius.”55 The au Assembly returned to the question of the Chagos Archipelago several times in subsequent years: 2011,56 2015,57 2017,58 201859 and 2019.60 More recently, the au manifested its support for Mauritius’s demand for the restoration of the Chagos Archipelago to Mauritian sovereignty when the issue came before the UN General Assembly for consideration at the request of the Republic of Congo on behalf of the members of the Group of African States at the UN. Consistent with their position within the au, the Group of African States supported the General Assembly’s request for an Advisory Opinion of the icj on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965,61 and the au’s participation in the legal proceedings at the Court as an interested party. In its “Decision on Decolonisation of Mauritius”,62 adopted on 10 February 2020, the au Assembly welcomed the icj’s Advisory Opinion of 25 February 2019.63 It also welcomed UN General

54

Id., at para. 1 (emphasis added). This is a reference to the General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514(xv) (1514(xv)) (1960). 55 Id., para. 3. 56 Resolution on Chagos Archipelago, au Assembly Resolution (au/​Res.1(xvi)) (2011). 57 Resolution on Chagos Archipelago, au Assembly Resolution (au/​Res.1(xxv)) (2015). 58 Resolution on Chagos Archipelago, au Assembly Resolution (au/​Res.1(xxviii)) (2017). 59 Decision on Decolonisation of Chagos Archipelago, au Assembly Decision (au/​ Dec.684(xxx)) (2018). 60 Decision on Decolonisation of Chagos Archipelago, au Assembly Decision (au/​ Dec.747(xxxii) (2019). 61 See Request for an Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, UN General Assembly Resolution (A/​r es/​71/​292) (2017)), requesting, in accordance with Article 96 of the UN Charter and pursuant to Article 65 of the Statute of the International Court of Justice, an advisory opinion of the Court on “whether the process of decolonization of Mauritius was lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius, [and] what are the consequences under international law arising from the continuing administration by the United Kingdom of the Chagos Archipelago?”. 62 Decision on Decolonisation of Mauritius, au Assembly Decision (au/​Dec.788 (xxxiii)) (2020). 63 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, icj Reports 2019, p. 1.

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Assembly Resolution 73/​295,64 which affirms, in accordance with the Advisory Opinion of the Court, that:







(a) Because the detachment of the Chagos Archipelago was not based on the free and genuine expression of the will of the people of Mauritius, the decolonization of Mauritius was not lawfully completed; (b) The Chagos Archipelago forms an integral part of the territory of Mauritius; (c) Since the decolonization of Mauritius was not conducted in a manner consistent with the right of people to self-​determination, it follows that the continued administration of the Chagos Archipelago by the United Kingdom of Great Britain and Northern Ireland constitutes a wrongful act entailing the international responsibility of that State; (d) The United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as soon as possible; (e) Since respect for the right of self-​determination is an obligation erga omnes, all States have a legal interest in protecting that right and all Member States are under an obligation to cooperate with the United Nations in order to complete the decolonization of Mauritius; (f) The resettlement of Mauritian nationals, including those of Chagossian origin, must be addressed as a matter of urgency during the completion of the decolonization process.65

Resolution 73/​295, introduced by Senegal on behalf of the Group of African States, went on to demand that the United Kingdom withdraw its colonial administration from the Chagos Archipelago unconditionally within a period of no more than six months, which the United Kingdom has not complied with to date. It is, however, worth noting that previously, in May 2013, the au Assembly had adopted a Solemn Declaration to mark the 50th anniversary of the oau/​a u. The au Assembly declared its commitment to, inter alia: 64

65

Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, UN General Assembly Resolution 73/​295 (A/​r es/​73/​295) (2019). See Chapter 15 in this volume, Julia Sebutinde “Is the Right to Self-​Determination Jus Cogens: Reflections on the Chagos Advisory Opinion”. UN General Assembly Resolution 73/​295 (above note 64), at para. 5.

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(i) The completion of the decolonization process in Africa; to protect the right to self-​determination of African peoples still under colonial rule; solidarity with people of African descent and in the Diaspora in their struggles against racial discrimination; and resist all forms of influences contrary to the interests of the continent; (ii) The reaffirmation of our call to end expeditiously the unlawful occupation of the Chagos Archipelago, the Comorian Island of Mayotte and also reaffirm the right to self-​determination of the people of Western Sahara, with a view to enable these countries and peoples to effectively exercise sovereignty over their respective territories.66

The Palestine Question: Reaffirming the Right to Self-​Determination Outside Africa Alongside their preoccupation with the decolonization of Africa, African States have also addressed other situations outside Africa involving struggles for self-​determination. In particular, starting in 1975,67 the oau put the question of Palestine on its agenda from time to time and adopted resolutions affirming its support for the people of Palestine to exercise their right to self-​ determination, including their right to return to their homeland. This question is also a matter of concern for the au and has featured more recently on the agenda of the au Assembly’s summits under the topic “The Situation in Palestine and the Middle East”. Forty years after the oau adopted its first resolution, the au adopted a declaration at its June 2015 summit in Johannesburg, South Africa, calling upon all Member States and other States to recognize the State of Palestine, thereby reaffirming its support for the self-​determination of Palestinians.68 The following year, the au Assembly adopted a declaration in which, among other things, the Member States: 2.4

Reaffirm the right of the Palestinian people to establish their own Palestinian Independent State with East Jerusalem as its capital on its borders [of 1967], and support the Palestinian approach to obtain full membership of the State of Palestine at the United Nations.69 66 67 68 69

Solemn Declaration on the 50th Anniversary of the oau/​a u (above note 50). Resolution on the Question of Palestine, oau Assembly Resolution (ahg/​Res.77(xii)) (1975). Declaration on the Situation in Palestine and the Middle East, au Assembly Declaration (Decl.4(xxv)) (2015). Declaration on the Situation in Palestine and the Middle East, au Assembly Declaration (au/​Decl.2(xxvii)) (2016).

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In fact, the au Assembly has adopted consecutive declarations on Palestine over the last four years since the above declaration, in 2017,70 2018,71 2019,72 and 2020.73 Through these declarations, au Member States have renewed their support for the right of Palestinians to self-​determination and the establishment of the State of Palestine based on the 1967 borders in Gaza and the West Bank, with East Jerusalem as its capital. The au Assembly restated this support in the latest (February 2020) declaration, which reads in part: [Affirm] that a just solution to the Palestinian cause and the achievement of comprehensive peace and an end to the Israeli conflict can only be achieved through the establishment of a sovereign Palestinian state on the borders of June 4 [1967] in the West Bank and Gaza Strip, with East Jerusalem as its capital and not as a capital on the outskirts of [East Jerusalem].74 The declaration also reaffirms the solidarity of the au with the Palestinian people in rejecting US President Trump’s “[so-​called] deal of the century, which was announced without consulting the Palestinian leadership” and “[transcends] the basic rights of the Palestinian people, including all relevant resolutions of international legitimacy and African Union declarations.”75 2.5 Overall Significance of oau/​a u Resolutions and Declarations The point of recalling the various oau and au resolutions and declarations—​ and these are only illustrative examples—​is to demonstrate the acceptance and recognition of African States of the right of self-​determination as a fundamental principle of international law.76 Moreover, although initially they were 70 71 72 73 74 75 76

Declaration on the Situation in Palestine and the Middle East, au Assembly Declaration (au/​Decl.2(xxix)) (2017). Declaration on the Situation in Palestine and the Middle East, au Assembly Declaration (au/​Decl.2(xxxi)) (2018). Declaration on the Situation in Palestine and the Middle East, au Assembly Declaration (au/​Decl.7(xxxii)) (2019). Declaration on the Situation in Palestine and the Middle East, au Assembly Declaration (au/​Decl.5(xxxiii)) (2020). Id., at para. 16. Id., at para. 19. In his analysis of the norms previously recognized by the Commission as possessing a peremptory character, the Special Rapporteur makes a connection between jus cogens and intransgressible norms, which is relevant here. See Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens), (above note 13) at para. 117.

274 Maluwa primarily concerned with the decolonization of the African continent and the emancipation of its people from all forms of colonialism and foreign domination, it is clear that since the inception of the oau in 1963, African States have collectively advocated the right of colonized peoples and territories everywhere to exercise their right of self-​determination. Despite the remaining unresolved issues of Western Sahara and the Chagos Archipelago, either of which is variously considered by some commentators as Africa’s last colony,77 there is widespread agreement that by the time of its dissolution on 9 July 2002 and its replacement by the au, the oau’s most notable success lay in its near total achievement of the objective of the complete decolonization of the African continent. Indeed, it is because of the sense that the oau had largely achieved its objective of eradicating colonialism that the Member States saw no need to include it as one of the objectives of the au. Shortly after the entry into force of the au Constitutive Act, I wrote that: [The] principle provided for in Article III(6) of the OAU Charter, relating to the absolute dedication to the total emancipation of the African colonies which are still dependent, makes no appearance in the Constitutive Act. When the OAU was established, only thirty-​two African countries enjoyed independent [statehood]. Today, the political lexicon of the OAU does not include the notion of dependent territories in the colonial sense, although, interestingly enough, the Lomé summit in fact adopted a decision which recognizes and supports Mauritius’s claim of sovereignty over the Chagos Archipelago currently occupied by the United Kingdom and used as a military base by the United States.78 There can be no doubt that although decolonization does not feature as one of the objectives in the au Constitutive Act, African countries accept and 77

78

See generally Toby Shelley Endgame in the Western Sahara: What Future for Africa’s Lase Colony? (Zed Books, 2004); Laura E. Smith “The struggle for Western Sahara: What future for Africa’s last colony?” (2007) 10 Journal of North African Studies 545. For characterizations of Chagos Islands as Africa’s last colony, see Martina Schwikowski “Chagos Islands: The fight over Africa’s last colony”, dw, 22 November 2019, available at: https://​ p.dw.com/​p/​3TYHk (accessed 14 October 2020); Pauline Bax “Pressure Grows on Britain to Return Its Last Colony”, Bloomberg, 10 November 2019, available at http://​www. bloomberg.com/​news/​articles/​pressure-​grows-​on-​britain-​to-​return-​its-​last-​african-​ colony (accessed 14 October 2020). Tiyanjana Maluwa “Reimagining African Unity: Some Preliminary Reflections on the Constitutive Act of the African Union” (2001) 9 African Yearbook of International Law 3, at 26–​27.

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recognize the norm of self-​determination as a fundamental value in their state practice. The continuing engagement by the au with the remaining issues of Western Sahara and the Chagos Archipelago is evidence of the enduring commitment of its Member States to this norm. So, too, is the fact that in 2019 the au supported the UN General Assembly’s request for an Advisory Opinion of the icj in the Chagos Archipelago case (as the oau had done in 1975 in respect of the Western Sahara Case) and presented arguments in support of self-​determination.79 In addition to decolonization and the right of self-​determination and the two other issues that I examine in more detail below, African States have also contributed to the emergence or affirmation of other peremptory norms. These include the prohibitions of apartheid, racial discrimination, and terrorism. Furthermore, the human rights norms established under the African Charter and the national and international jurisprudence that has evolved under it include prohibitions of slavery and torture. The African regional human rights system, together with the European and American regional human rights systems, complements the universal UN human rights system to form the global normative human rights framework. Some of the principles of this global human rights framework undergird the universal fundamental values relevant for the identification of peremptory norms of general international law. The oau’s preoccupation with the prohibition of racial discrimination and apartheid went hand in hand with its fight against colonialism and for the right of self-​determination of colonized African territories and peoples. Thus, after the resolution on colonialism, the second resolution adopted by the Conference of Independent African States in 1963 concerned racial discrimination and apartheid. After appealing to all States (i.e. worldwide, and not only African States) to apply strictly UN General Assembly resolution 1761 (xvii) of 6 November 1962 concerning apartheid, the resolution condemned “racial discrimination in all its forms in Africa and all over the world.”80 At its first summit in 1964, following up on the resolutions adopted by the Conference of Independent African States in 1963, the oau Assembly adopted

79

80

Chagos Archipelago Case (above note 63). The African Union submitted written comments on 15 May 2018 and made an oral intervention at the hearing on 6 September 2018, in support of Mauritius. In addition, apart from Mauritius itself, the following au Member States intervened in their individual capacities with written submissions and/​ or oral statements: Botswana, Djibouti, Kenya, Lesotho, Madagascar, Namibia, Niger, Nigeria, Seychelles, South Africa, and Zambia. Resolution on Racial Discrimination and Apartheid, Summit Conference of Independent African States, (cias/​Plen.2/​Rev.2/​B) (1963).

276 Maluwa resolutions on apartheid in South Africa81 and, separately, apartheid and racial discrimination generally.82 The resolution on South Africa called for a boycott and the imposition of sanctions on the country for its failure to comply with the resolutions of the UN Security Council and General Assembly. Prior to this, the General Assembly had adopted a Declaration on the Elimination of All Forms of Racial Discrimination,83 on 23 November 1963, barely two months after the entry into force of the oau Charter. The declaration condemned racial discrimination, particularly apartheid, and affirmed the necessity of ending it speedily. During the debates that led to the adoption of the declaration, African States, led by the Central African Republic, Chad, Dahomey (Benin), Guinea, Côte d’Ivoire, Mali, Mauritania, and Upper Volta (Burkina Faso) had decided to ask the Commission on Human Rights to prepare both a draft declaration and a draft convention on the elimination of all forms discrimination.84 The General Assembly eventually adopted the International Convention on the Elimination of All Forms of Racial Discrimination on 21 December 1965.85 Today, all the 55 au Member States, except two—​s adr86 and South Sudan—​are States Parties to the Convention on Racial Discrimination. As with the right of self-​determination, from the earliest days African States have regarded the prohibition of racial discrimination as a fundamental value for the benefit of the international community of States. Right of Self-​Determination, Respect for Borders and Territorial Integrity, and Secession At the outset, I noted that while the Commission has not included a discussion of regional jus cogens in its current work, its decision was without prejudice to the question whether regional jus cogens did exist. Arguments supporting the existence of regional jus cogens are not new. Georg Schwarzenberger acknowledged this possibility more than half a century ago.87 More recently, Dirdeiry 2.6

81 82 83 84 85 86 87

Resolution on Apartheid in South Africa, oau Assembly Resolution (ahg/​Res.5(i)) (1964). Resolution on Apartheid and Racial Discrimination, oau Assembly Resolution (ahg/​ Res.6(i)) (1964). Declaration on the Elimination of All Forms of Racial Discrimination, UN General Assembly Resolution 18/​1904 (A/​r es/​18/​1904) (1963). Obed Y. Asamoah The Legal Significance of the Declarations of the General Assembly of the United Nations (Martinus Nijhoff, 1966), at 192. Adopted by the General Assembly by UN General Assembly Resolution 2106(xx)(A/​r es/​ 2106(xx)) (1965). Although an au Member State, Sahrawi Arab Democratic Republic is not a member of the UN; hence, it is not eligible to join UN treaties. Georg Schwarzenberger “International Jus Cogens” (1964) 43 Texas Law Review 455, at 460.

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Ahmed has argued in favour of “elevating to regional jus cogens norms in which States of a particular region do not have any interest other than a profound commonly shared goal.”88 Although this discussion is about the contribution of the African region to the formation of peremptory norms of general international law, and not African jus cogens, a brief word on the two norms that Ahmed characterizes as African jus cogens is in order, since both have a bearing on the right of self-​determination norm. These are the prohibition against the redrawing of boundaries and the prohibition against secession.89 While identifying these norms as African jus cogens, Ahmed allows for the possibility of neighbouring States mutually agreeing to adjust their boundary by treaty and secession taking place with the agreement of the parent State. This raises the obvious question: how can these norms be jus cogens if States can derogate from them by mutual agreement? One of the criteria for the identification of peremptory norms of general international law (jus cogens) is that these are norms from which no derogation is permitted. This criterion should logically also apply to norms recognized as regional jus cogens. But even if one rejects Ahmed’s characterization of these norms as jus cogens, it is still possible to argue that these norms are without question part of an African regional international law that has evolved since the 1960s. Not all norms of this regional African international law are jus cogens norms. One of the purposes enshrined in the oau Charter was “[to] defend their sovereignty, their territorial integrity and independence.”90 Correspondingly, one of the principles in the oau Charter was “[respect] for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.”91 This principle was reaffirmed in a resolution adopted by the first oau summit in Cairo in July 1964 (Cairo Resolution). After noting that “the borders of African States, at independence, constituted a tangible reality, the oau Assembly went on solemnly to “declare that all Member States pledge themselves to respect the borders existing on their achievement of national independence.”92 The resolution, described as “simple in statement and 88 89 90 91 92

Dirdeiry A.M. Ahmed Boundaries and Secession: Challenging Uti Possidetis (Cambridge, 2015), at 127. Id., at 128–​136. oau Charter, at art. ii(1)(c). Id., at art. iii(3). Resolution on Border Disputes Among African States, oau Assembly Resolution (ahg/​ Res.16(i)) (1964). See Tiyanjana Maluwa “Oil Under Troubled Waters: Some Legal Aspects of the Boundary Dispute Between Malawi and Tanzania Over Lake Malawi” (2016) 37 Michigan Journal of International Law 351, at 380–​384; see also Ahmed (above note 88), at 85–​87.

278 Maluwa dispositive in effect”,93 proclaimed that all borders existing on independence were to be invariably respected in perpetuum. Substantively, the resolution is analogous to the principle of uti possidetis juris, but was not purposefully based on that principle, as suggested by the icj in the Frontier Dispute (Burkina Faso v. Mali) case.94 Earlier, some scholarly commentators had variously posited that the Cairo Resolution “had no binding effect in terms of international law”,95 and was “[at best] a code of conduct of boundaries of the New States of Africa. Nothing more”.96 It was said to be “a political statement of the highest order [with] important juridical associations”97 and “a statement of policy [that] has undoubtedly had a considerable impact but its legal effect is questionable.”98 Yet in light of the subsequent practice of oau and au Member States over almost six decades since its adoption, the norm-​creating character of the Cairo Resolution can no longer be doubted.99 In this respect, Ahmed has described the Cairo Resolution as giving rise to African customary law.100 Over the intervening period, the official position of the oau and au has been to reaffirm the principle whether in relation to boundary disputes between Members States or in response to secessionist claims within existing States. The principle is replicated in Article 4(b) of the au Constitutive Act, which provides as one of its principles, “[respect] for the borders existing on achievement of independence.”101 The prohibitions against redrawing boundaries inherited at independence and secession from independent States have been tested several times in the 93 94

Ahmed (above note 88), at 87. Frontier Dispute (Burkina Faso v. Mali), icj Reports 1986, p.554, at para. 20 et seq. The icj expressed the view that the principle has been given implied recognition in Article iii (3) of the oau Charter and the Cairo Resolution. Yet there is no reference to the principle in the travaux préparatoires of the oau Charter nor in the resolution. See Saadia Touval “The Organization of African Unity” (1967) 21 International Organization 102. 95 Ian Brownlie African Boundaries: A Legal and Diplomatic Encyclopedia (C. Hurst and Co., 1979), at 11. 96 A.O. Chukwurah “The Organization of African Unity and the African Territorial and Boundary Problems: 1963–​1973” (1973) 13 Indian Journal of International Law 176, at 182. 97 Malcom Shaw “The Heritage of States: The Principle of Uti Possidetis Juris Today” (1996) 67 British Yearbook of International Law 75, at 103. 98 S. Lalonde Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (McGill-​ Queen’s, 2002), at 136. 99 Ahmed (above note 88), at 97–​ 100: see also Malcom Shaw Title to Territory in Africa: International Legal Issues (Clarendon, 1986), 186; see Shaw (above note 97), at 103–​4. 1 00 Ahmed (above note 88), at 259–​60. 101 au Constitutive Act, at Art. 4(b).

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context of secessionist claims. From the attempted secessions of Biafra from Nigeria (1967–​71) and Anjouan from the Comoros (1997–​2001) to the current secessionist claim by Somaliland (in Somalia), the oau maintained a consistent position, namely that the principle of self-​determination does not entitle sub-​national groups within existing African States to secede and form new States. In other words, the oau consistently denied the application of the norm of self-​determination to claims beyond the colonial context—​a position maintained by the au. Confronted with the attempted secession of Biafra from Nigeria in 1967, the oau Assembly, meeting in its fourth ordinary session in Kinshasa, Zaire, adopted a resolution in which it reaffirmed the Assembly’s “adherence to the principle of respect for the sovereignty and territorial integrity of Member States”, and expressed its “condemnation of secession in any Member States.”102 The Assembly reiterated its commitment to Nigeria’s unity and condemnation of Biafra’s attempted secession in another resolution two years later.103 Scholars who argue that the Cairo Resolution and the principle of respect for borders existing at the achievement of independence enshrined in the au Constitutive Act have relegated self-​determination to an inferior place might point at the oau’s refusal to recognize these secessionist claims as a validation of that viewpoint. Commenting on the approach that the icj took in its judgment in the Frontier Dispute case, Christian Tomuschat observed that uti possidetis “has thus become the leading maxim for the territorial delimitation of Africa, relegating self-​determination in that respect to an insignificant, inferior place.”104 This conclusion is too sweeping and wrong. The emergence of Eritrea and South Sudan as independent States show that secessionist claims in limited and exceptional circumstances are accepted as consistent with the self-​ determination norm. To understand the success of these secessions we must take into account their historical specificities. And we do well to recall that these territories were annexed to the parent States in 1947 and 1950, respectively, less than a decade before the first wave of African independence. Eritrea and South Sudan are exceptional examples of the exercise of self-​ determination by peoples who were incorporated into another independent State (Ethiopia) or colonial territory (Sudan) at precisely the moment that other colonized African peoples and territories were embarking upon their decolonization campaigns. To the extent that these secessions were outcomes 1 02 oau Assembly Resolution (ahg/​Res.51(iv)) (1967). 103 Resolution on Nigeria, oau Assembly Resolution (ahg/​Res.58(v)) (1969). 104 Christian Tomuschat “Secession and Self-​determination” in Marcelo G. Cohen (ed.) Secession: International Law Perspectives (Cambridge, 2006), at 27 (Emphasis added).

280 Maluwa of referenda conducted under UN supervision and based on mutual agreements between the claimants and the parent States, they were cases of a limited, treaty-​based (as opposed to a general, custom-​based) entitlement to secede from an already decolonized State. In a sense, these were cases of “deferred decolonization”, and not ordinary secessions by sub-​national groups. The permissible limits of claims of self-​determination by a sub-​national group within an existing, de-​colonized State were considered by the African Commission on Human and Peoples’ Rights in the Katangese Peoples’ Congress v Zaire case.105 The applicant requested the African Commission to recognize it as a liberation movement entitled to profess its secessionist agenda and exercise its right of self-​determination, consistent with Article 20(1) of the African Charter. It further requested the African Commission to issue a finding in favour of the recognition of Katanga and confirming Katanga’s entitlement to support and help from the oau to separate from Zaire. The applicant did not make any allegations of specific breaches of human rights on the part of the Zairean State apart from the denial of the right of self-​determination. Dismissing the claim, the African Commission concluded that “Katanga is obligated to exercise a variant of self-​determination that is compatible with the sovereignty and territorial integrity of Zaire.”106 The African Commission affirmed the existence, in two non-​colonial contexts, of a limited international legal entitlement to secede. First, in the case of an oppressed people (“serious human rights violations”); secondly, in the case of people who have been denied meaningful participation in the governance of their country (“denial of the rights guaranteed under Article 13(1) of the African Charter). However, it came to the conclusion that neither of these two contexts applied.107 In Katangese Peoples’ Congress v Zaire, the African Commission, therefore, reinforced the status quo approach of the oau to self-​determination as a norm invoked only in the context of the decolonization process in which the claimants have an international legal entitlement to be decolonized from a colonial State, and not as justification for secession. The practice of African States has 105 Katangese Peoples’ Congress v Zaire, Comm. No. 75/​92, African Commission on Human and Peoples’ Rights, ACHPR/RPT/8th, Annex VI (1995). 106 Id., at para. 6. 107 The African Commission has been criticized for basing its reasoning on Article 13(1), which deals with the right of every citizen to participate freely in the government of his or her country, directly or indirectly, instead of using Article 20 (1), which guarantees the right of self-​determination, the basis of the applicants’ complaint. See, e.g., Ahmed (above note 88), at 202–​204; But see Obiara C. Okafor “Entitlement, Process, and Legitimacy in the Emergent International Law of Secession” (2002) 9 International Journal on Minority and Group Rights 41, at 50–​55.

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repeatedly confirmed their acceptance and recognition of the right of self-​ determination as a fundamental norm of general international law. Yet African States have also repeatedly reaffirmed their opposition to the invocation of that norm in secessionist claims that violate other African regional norms: the prohibition of secession and the prohibition of violation of the sanctity of boundaries and the sovereignty and territorial integrity of States. 3

The Principle of Non-​Refoulement in Refugee Law in Africa

The principle of non-​refoulement, which is central to refugee protection, is articulated in Article 33 of the UN Convention Relating to the Status of Refugees (UN Refugee Convention).108 It prohibits States from returning refugees to territories where the life or freedom of the refugee may be threatened on account of race, religion, nationality, or membership of a particular social group or political opinion.109 Article ii(3) of the oau Refugee Convention110 strengthens the principle, which is widely recognized as the cornerstone of international refugee protection.111 Beyond refugee protection, the principle of non-​refoulement protects fundamental human rights in different contexts. Hence, its incorporation into various international human rights treaties.112

1 08 1954 Convention Relating to the Status of Refugees. 109 The principle is framed in Article 33 as follows: “(1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (2) The benefit of the provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 110 oau Refugee Convention (above note 9). 111 See generally Elihu Lauterpacht and Daniel Bethlehem “The Scope and Content of the Principle of Non-​Refoulement” in Erika Feller, Volker Türk and Frances Nicholson (eds.) Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge, 2003), at 87. 112 E.g. Art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Art. 22(8) of the American Convention on Human Rights, Arts 5, 12(3) of the African Charter on Human and Peoples’ Rights; Art. 6 of the International Covenant on Civil and Political Rights; and Art. 3 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

282 Maluwa The icc has concluded that the principle of non-​refoulement is a peremptory norm of general international law.113 Some scholars also regard the principle of non-​refoulement as either an established norm of jus cogens,114 or an emerging one.115 Whether one accepts the argument that the principle has become a peremptory norm of general international law or that it is still in the process of crystallizing into such a norm, the question for this discussion is whether and how the practice of African States has contributed, or is contributing, to this process. In addition to its incorporation in the oau Refugee Convention, the principle of non-​refoulement is protected under the African Charter and has been incorporated in the national legislation of many African countries. It has also been affirmed in the decisions of some national courts, albeit in a limited number of cases. The Principle of Non-​Refoulement as a Fundamental Norm in African Treaty Practice The formulation of the principle in Article ii(3) of the oau Refugee Convention draws on Article 3(1) of the UN Declaration on Territorial Asylum. The latter provides that “[n]‌o person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any state 3.1

113 See Prosecutor v Katanga, Decision on the Application of the Interim Release of Detained Witness, Judgement of the Trial Chamber ii of the International Criminal Court, 1 October 2013, at para. 30 (noting that “peremptoriness [of the principle of non-​refoulement] finds increasing recognition among States”). The Court relied on, inter alia, the 2007 Advisory Opinion on the Extraterritorial Application of Non-​Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol of the Office of the United Nations High Commissioner for Refugees (unhcr) and several unhcr Executive Committee Conclusions. 114 See Jean Allain “The Jus Cogens Nature of Non-​Refoulement” (2001) 13 International Journal of Refugee Law 533, at 533–​ 38; Alice Farmer “Non-​ Refoulement and Jus Cogens: Limiting Anti-​Terror Measures that Threaten Refugee Protection” (2008) 23 Georgetown Immigration Law Journal 1, at 22; Alexander Orakhelashvili Peremptory Norms of General International Law (Oxford, 2006), at 56. See also generally Cathryn Costello and Michelle Foster “Non-​refoulement as custom and jus cogens? Putting the prohibition to the test” (2015) 46 Netherlands Yearbook of International Law 273–​323. 115 See Antonio Cassese “The Enhanced Role of Jus Cogens” in Antonio Cassese (ed.) Realizing Utopia: The Future of International Law (Oxford, 2012), 158–​171, at 162–​163. But see Guy Goodwin-​Gill and Jane McAdam The Refugee in International Law (3rd ed., Oxford, 2007), at 218 noting: “[comments have] ranged from support for the idea that non-​refoulement is a long-​standing rule of customary international law and even a rule of jus cogens, to regret at reported instances of its [non-​observance]”.

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where he may be subjected to persecution.”116 The oau Refugee Convention provides: No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for reasons set out in Article I, paragraphs 1 and 2.117 There is agreement among most refugee law scholars and commentators that the oau Refugee Convention strengthens the principle of non-​refoulement. Although the oau Refugee Convention, like its UN counterpart, still allows expulsion, or refoulement, in limited circumstances,118 there are four main reasons that scholars believe the oau Refugee Convention strengthens the principle of non-​refoulement. First, the oau Refugee Convention describes the people to whom non-​refoulement applies as “persons” and not “refugees” thus expanding the scope of the right.119 Unlike under Article 33(1) of the UN Refugee Convention, refugee status is not required to be protected from non-​ refoulement under the oau Refugee Convention.120 Second, the oau Refugee Convention expands non-​refoulement because it does not provide States with a national security exception to its application, as Article 33(2) of the UN Refugee Convention does.121 This may be because its humanitarian object 116 Declaration on Territorial Asylum, UN General Assembly Resolution 2312(xxii)(A/​R es/​ 2312(xxii)) (1967), at art. 3(1). 117 oau Refugee Convention, at Art. ii(3). A combined reading of Articles 5 and 12(3) of the African Charter can be interpreted as forbidding refoulement of persons at risk of torture or other human rights violations under the African Charter. See David Weissbrodt and Isabel Hörtreiter “The Principle of Non-​Refoulement: Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non-​Refoulement Provisions of Other International Human Rights Treaties” (1999) 5 Buffalo Human Rights Law Review 1, at 48. 118 oau Refugee Convention, at art. i(4)(e), (f), and (g). 119 W.J.E.M. van Hövell tot Westerflier “Africa and Refugees: The oau Refugee Convention in Theory and Practice” (1989) 7 Netherlands Quarterly of Human Rights 172, at 176. 120 Marina Sharpe “African Union Refugee Definition” in Refugee Legal Aid: Rights in Exile Programme available at http://​www.refugeelegalaidinformation.org/​african-​union-​ refugee-​definition#sthash.vVieaCap.pdf (accessed on 15 October 2020). 121 Art 33(2) of the 1951 UN Refugee Convention provides: “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”

284 Maluwa militates in favour of progressive interpretation.122 A third, somewhat subtle, difference is that Article 33(1) of the UN Refugee Convention prohibits return to territories where life or freedom would be threatened, while Article ii(3) of the oau Refugee Convention prohibits return to territories where life, physical integrity, and liberty would be threatened. Arguably, a prohibition on return in the face of threats to physical integrity provides a wider ambit of protection than a prohibition on return in the face of threats to life alone.123 Additionally, Georges Abi-​Saab has argued that the oau Refugee Convention is the only binding international instrument that explicitly extends the principle of non-​refoulement to rejection at the frontier, following the General Assembly Declaration on Territorial Asylum.124 As defined in both the UN Refugee Convention and the oau Refugee Convention, as well as in international human rights instruments including the African Charter, non-​refoulement provides protection for a broad range of underlying norms. In the refugee context, these include “life and freedom” (under the UN Refugee Convention) and “life, physical integrity, and liberty” (under the oau Refugee Convention). Taken together, the protections offered thus range from the right to life and freedom from non-​discrimination, to the right not to have one’s physical integrity violated, which encompasses the right not to be tortured or to be subjected to cruel, inhuman or degrading treatment. Therefore, not only can one argue that non-​refoulement in itself is now (or is emerging as) a rule of jus cogens, but that the norms—​or at least some of them—​that it protects are themselves peremptory norms of general international law. There is one other remarkable feature of the oau Refugee Convention to which commentators have not generally drawn attention: the use of non-​ exclusive language. For example, the provisions enshrining the principle of non-​refoulement (along with the principles of asylum, burden-​sharing, and non-​discrimination) are broadly addressed to “oau Member States,” and not specifically or restrictively to “Signatory States,” although the latter term is used

122 See Georges Abi-​Saab “The Admission and Expulsion of Refugees with Special Reference to Africa” (2000) 8 African. Yearbook of International Law 71, at 89–​91; Eduardo Arboleda “Refugee Definition in Africa and Latin America: The Lessons of Pragmatism” (1991) 3 International Journal of Refugee Law 195, at 185. 123 Adetola Onayemi and Olufemi Elias “Aspects of Africa’s Contribution to the Development of International Law” in Charles C. Jalloh and Olufemi Elias (eds.) Shielding Humanity: Essays in International Law in Honour of Judge Abdul G. Koroma (Martinus Nijhoff, 2015), at 597. 124 Abi-​Saab (above note 122), at 89.

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in other provisions of the Convention.125 The usage of these different terms was not accidental, but a deliberate choice by the drafters. The optimistic belief at the time that all oau Member States would, in time, sign up as parties to the oau Refugee Convention as a regional instrument dealing with a problem of critical significance for the African continent likely drove this choice. The fact that today the oau Refugee Convention has one of the highest numbers of parties among oau/​a u treaties is a validation of the early desire of African States to expand certain aspects of existing international law to address their specific needs and problems. It also provides evidence of their collective commitment to embrace certain fundamental values of international law, such as the principle of non-​refoulement.126 Besides, the African Charter incorporates the principle indirectly through its Articles 5 and 12(3).127 The Principle of Non-​Refoulement in National Legislation and Judicial Decisions In addition to their treaty obligations as parties to the oau Refugee Convention, UN Refugee Convention and the African Charter, provisions of national legislation, official government statements, and decisions of national courts of African States may provide further evidence of the acceptance and recognition of the principle of non-​refoulement as a cornerstone of refugee protection and potentially a norm of jus cogens. A survey of national legislations in Africa shows that many countries provide for the principle of non-​refoulement in their refugee laws. These include countries from all across the continent that have enacted specific legislation to domesticate the UN Refugee Convention or the oau Refugee Convention or both.128 But even for those countries that 3.2

125 Undoubtedly, the drafters of the oau Refugee Convention would have been aware that the obligations set out in the treaty would only bind the parties to it. However, given the political context in which the treaty evolved, there was probably a desire that all members of the organization, including non-​signatory States, embrace the new principles set out in it as a shared consensus on the protection of refugees in the new, postcolonial Africa. 126 The oau Refugee Convention currently has 46 States Parties out of 55 au Member States compared to the au Constitutive Act (55 ratifications) and the African Charter on Human and Peoples’ Rights (54 ratifications). 127 See Weissbrodt and Hörtreiter (above note 117). 128 The majority of au Member States have refugee legislation of one form or another enacted after the entry into force of the oau Refugee Convention (with the exception of Botswana and Zambia). These include (with year of adoption of the legislation): Angola (1990), Benin (1975), Botswana (1968), Burkina Faso (1997), Burundi (2009), Cameroon (2005), Democratic Republic of Congo (2002), Djibouti (2001), Eswatini (1978), Gabon (1996), Gambia (2008), Ghana (1993), Guinea (2000), Kenya (2006), Lesotho (1985),

286 Maluwa are parties to these treaties but have not specifically enacted domesticating legislation, the principle of non-​refoulement is still applicable within their national legal systems to the extent that it has morphed into customary international law, which is regarded as part of the law of the land in all these countries. Externally in their relations with other States, the principle is binding on them as a treaty obligation. Yet the practical reality is that States do violate the principle of non-​refoulement from time to time. Regarding this, Cristiano d’Orsi has argued that many of these national legislations use the concepts of expulsion and refoulement interchangeably, and seemingly misconstrue them. Another reason is the resource argument: that in some cases, States are unable to respect their non-​refoulement and voluntary repatriation obligations in the oau Refugee Convention due to lack of funding to host increasing numbers of refugees.129 While there is some truth in this claim, which reflects a declining commitment toward asylum protection in some countries, compliance with the obligations set out in the oau Refugee Convention remains the rule rather than the exception. One way of assessing the practical application of the policy commitments of African States to the principle of non-​refoulement is through the prism of adjudication of cases arising from appeals against adverse decisions on asylum applications and alleged violations of refugee rights in specific instances. Most of the literature examining compliance with the principle of non-​refoulement in African countries has tended to focus on an analysis of the policy commitments of governments to the treaty obligations and existence or absence of relevant national legislation. There is not much scholarship analysing the decisions of administrative bodies charged with asylum application and refugee status determination processes and the jurisprudence surrounding these matters. Part of the problem is the paucity of refugee or asylum litigation. In most countries in Africa and elsewhere in the world asylum applications are dealt with routinely by administrative agencies and only a few cases go for judicial review. Thus, few cases of failed asylum applications or denial of refugee status involving violations of the principle of non-​refoulement are properly adjudicated. Case law on this issue in Africa is, therefore, necessarily limited and

Liberia (1994), Malawi (1989), Mali (1998), Mauritania (2005), Mozambique (1991), Namibia (1999), Niger (1997), Nigeria (1989), Rwanda (2006), Senegal (1976), Sierra Leone (1984), South Africa (1998), Sudan (1974), Tanzania (1999), Togo (2000), Uganda (2006), Zambia (1970), and Zimbabwe (1983). 129 See generally Cristiano d’Orsi “Sub-​Saharan Africa: Is a New Special Regional Refugee Law Regime Emerging?” (2008) 68 Heidelberg Journal of International Law 1057.

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isolated.130 The exception is South Africa, where the courts have developed a respectable amount of refugee jurisprudence over the past 25 years.131 Two recent decisions from the Constitutional Court will illustrate the approach of the South African judiciary on the principle of non-​refoulement.132 South Africa acknowledges the obligation to allow asylum seekers entry into its territory in terms of the Refugees Act 130 of 1998, which expressly states that no person seeking asylum may be refused entry.133 Furthermore, South Africa makes two concessions for asylum seekers, which exempts them from its ordinarily applicable standards for immigration. These concessions are immunity from prosecution for unlawful entry into or presence within the country, and protection from treatment as illegal immigrants.134 First, under the Refugees Act, asylum seekers are permitted to enter South Africa without the need for a passport or a valid visa.135 Second, the Refugees Act protects asylum seekers who enter South Africa irregularly.136 Section 2 incorporates the principle of non-​refoulement. Under the provisions of this section, no person may be “expelled, extradited or returned to any other country” if that person may be subjected to persecution on account of their race, religion, nationality, political opinion or membership of a particular social group, or if such person’s physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination, or other events that seriously disturb public order.137 130 See, for example, Botswana: Sefu and Others v. Attorney-​General of Botswana, Judgement of the High Court of Botswana, 10 June 2005; Kenya: Kituo Cha Sheria and 8 Others v. Attorney-​General of Kenya, Judgement of the High Court of Kenya, 26 July 2013; Lesotho: Molefi v Principal Legal Adviser, Judgement of the Judicial Committee of the Privy Council, 17 June 1970. 131 For analyses of some of the South African cases relating to the principle of non-​ refoulement and other aspects of refugee law in South Africa, see John Dugard, Max du Plessis, Tiyanjana Maluwa and Dire Tladi Dugard’s International Law: A South African Perspective (5th Edition., Juta Academic, 2018), at 507–​533. 132 Gavrić v. Refugee Status Determination Officer, Cape Town and Others, Judgement of the Constitutional Court of South Africa, 28 September 2018, and Ruta v. Minister of Home Affairs, Judgement of the Constitutional Court of South Africa, 20 December 2018. 133 Sec 2 of the Refugees Act 1998,; see Abdi v. Minister of Home Affairs, Judgement of the Constitutional Court of South Africa, 20 December 2018, at para. 22. 134 Sec 21(4) of the Refugees Act. 135 This is the logical implication of the express prohibition of denial of entry to persons arriving at the port of entry and seeking asylum; in most cases, especially in situations of mass flight, refugees do not travel with visas. 136 Sec 21(4) of the Refugees Act, sec. 21(4). 137 Id., Sec. 2.

288 Maluwa The Constitutional Court—​not for the first time—​dealt with the principle of non-​refoulement in Gavrić v. Refugee Status Determination Officer.138 Briefly, the facts of the case as set out in the judgment are that Dobrosav Gavrić fled his native country of Serbia because he feared for his life following the assassination in 2000 of Zeljo Ražnatović, commonly known as Arkan. Ražnatović was a commander of a paramilitary unit closely aligned with the government of Slobodan Milošević during the conflict in the former Yugoslavia in the 1990s. Gavrić was present at Ražnatović’s assassination and became the main suspect for the murder. He fled illegally to South Africa in 2007 under a false name and passport. In the meantime, on 9 October 2008, he was convicted in absentia of the murders of Ražnatović and his two bodyguards. He was initially sentenced to a term of 30 years’ imprisonment, but this was later increased on appeal to 35 years’ imprisonment by the Serbian Supreme Court. In 2012, Gavrić applied for refugee status in South Africa on the grounds that he was falsely believed to be a member of the political group responsible for the commander’s death, and had a well-​founded fear of being killed by the deceased’s supporters. The Refugee Status Determination Officer (rsdo) refused to grant refugee status under section 4(1)(b) of the Refugees Act, which provides that a person does not qualify for refugee status if there is reason to believe that he or she committed a crime which is not of a political nature and which, if committed in South Africa, would be punishable by imprisonment. Gavrić applied to the High Court (Western Cape Division) for a review of the rsdo’s decision rejecting his application for asylum. The presiding judge dismissed the application and also denied him leave to appeal to the full bench of the High Court. The Supreme Court of Appeal also refused him leave to appeal, after which he sought leave to appeal from the Constitutional Court. The Constitutional Court held, inter alia, that non-​refoulement applies even to those who have been excluded from refugee status under section 4(1)(b) of the Refugees Act. The Constitutional Court recalled that in two previous cases, it had concluded that: The State, or any official in the employ of the State, does not have the power to extradite or deport or in any way remove a person from South Africa to a retentionist State, who, to its knowledge, if deported or extradited to such a State, will face the real risk of the imposition and execution of the death penalty.139 138 Gavrić v. Refugee Status Determination Officer, Cape Town and Others (above note 132), at paras. 26-​27, 38. 139 Id., at paras. 26-​27 nn. 17, 22 (recalling Minister of Home Affairs v. Tsebe, Judgement of the Constitutional Court of South Africa, 27 July 2012, and Mohamed v. President of the

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In Gavrić, the Constitutional Court addressed the possibility that an excluded applicant could be returned to a country where there was a risk that they may be killed or persecuted.140 The Constitutional Court dealt in some depth with the nature of a political crime for purposes of the exclusion clause under section 4(1)(b) of the Refugees Act. The Court stated that “egregious acts of violence, such as acts commonly considered to be of a ‘terrorist’ nature that are wholly disproportionate to any political objective, will be unlikely to pass the test for political crimes.”141 However, the Court also expressed “the concern that one nation’s terrorist may be another’s freedom fighter … [and that] this is particularly true where an organization advances the values of human rights, freedom and tolerance against a despotic or intolerant government … [and concluded] that a content-​neutral test is helpful in outlining relevant factors, but fails to take these important contextual considerations into account.”142 The court also concluded that “the approach to establishing whether a crime is political should be flexible, not overly inclusive or exclusive, and should also take into account our own historical context.”143 The Court was referring to the context in which South African courts during the apartheid era were almost always inclined, if not politically expected, to dismiss alleged political crimes as terrorist acts. While Gavrić was successful in challenging the rsdo’s decision on the basis of procedural unfairness,144 the Court found that he did not meet the requirements for refugee status according to the Refugees Act. In addition, the Court recognized the imperative behind the principle of non-​refoulement. It took the view that while Gavrić had not committed a political crime for which he would be persecuted should he be extradited to Serbia, he was nevertheless entitled to have his application considered fairly in accordance with the prevailing procedures, even if it was the Court’s view that he did not satisfy the substantive criteria for the recognition of refugee status. The Gavrić judgment speaks to the duty of South Africa to abide by its obligations under the oau Refugee Convention, as well as customary international

140

1 41 142 143 144

Republic of South Africa (Society for the Abolition of the Death Penalty in South Africa and Another Intervening), Judgement of the Constitutional Court, 28 May 2001. Since Gavrić had been sentenced to a term of imprisonment, and not the death penalty, he claimed that he feared being killed or persecuted by supporters of Arkan, the commander for whose murder he had been convicted. See Gavrić v. Refugee Status Determination Officer, Cape Town (above note 132), at para. 2. Id., at para. 94. Id., at para. 105. Id., at para. 106. Id., at paras. 78-​81.

290 Maluwa law obligations, in particular with respect to the principle of non-​refoulement. It is reasonable to speculate that courts in the jurisdictions of other au Member States that are parties to the oau Refugee Convention or the UN Refugee Convention would adopt a similar approach, thereby strengthening the evidence for the acceptance and recognition of the principle of non-​refoulement as a fundamental norm. The Constitutional Court has reaffirmed the principle of non-​refoulement even more strongly in another decision after Gavrić. In the more recent case of Ruta v. Minister of Home Affairs,145 the Court demonstrated a keen appreciation of the burden that refugees impose on the State, and the particular burdens the [South African] Department of Home Affairs and its officials are obliged to bear. But the Court was again unequivocal in upholding both the constitutional principles underlying the Refugees Act [and the Immigration Act], and the plain meaning of the language in those statutes. The ratio of the judgment is that “[all] asylum-​seekers are protected by the principle of non-​ refoulement, and the protection applies as long as the claim to refugee status has not been finally rejected after a proper procedure”146 Furthermore, the Court noted that section 2 of the Refugees Act “[goes] further than the 1951 Convention. Its more generous wording is derived from our own continent—​ the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Status [sic] in Africa.”147 After recalling the provision in section 2 of the Refugees Act, which encapsulates the principle of non-​refoulement, the Court states: This is a remarkable provision. Perhaps it is unprecedented in the history of our country’s enactments. It places the prohibition it enacts above any contrary provision of the Refugees Act itself—​but also places its provisions above anything in any other statute or legal provision. That is a powerful decree. Practically it does two things. It enacts a prohibition. But it also expresses a principle: that of non-​refoulement, the concept that one fleeing persecution or threats to “his or her life, physical safety or freedom” should not be made to return to the country inflicting it. [The] principle has been a cornerstone of the international law regime on refugees. It has also become a deeply-​lodged part of customary international law and [is] part of international human rights law.148 1 45 146 147 148

Ruta v. Minister of Home Affairs (above note 132), at para. 58. Id., at para. 29. Id., at para. 30. Id., at paras. 24-​26.

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This decision is the most recent judicial pronouncement on, and definitive interpretation of, the principle of non-​refoulement by the South African Constitutional Court. The Gavrić and Ruta decisions, and other cases mentioned in the references, exemplify forms of evidence of the acceptance and recognition of fundamental norms of general international law by States through the lens of decisions of their national courts. 4

The Right of Intervention in the au Constitutive Act: Preventing and Combatting Genocide, War Crimes, and Crimes Against Humanity

4.1 The au Constitutive Act: Codifying a New Regional Norm? Potentially the most consequential normative contribution to international law by African States in recent times finds its basis in the au Constitutive Act. Article 4(h) provides for “[the] right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.”149 I do not suggest that the right of intervention articulated in Article 4(h) is a peremptory norm of general international law (jus cogens). Rather, I argue that by adopting Article 4(h), African States aimed to strengthen a category of widely accepted and recognized peremptory norms of general international law, namely prohibitions of genocide and crimes against humanity, and respect for the basic rules of international humanitarian law. This is evidence of the contribution of African States to the formation of rules of jus cogens. Article 4(h) is a substantial legal innovation. It has crystallized into treaty norm from a diffuse set of legal ideas and concepts that are similar to, and form the basis for, the principle of the responsibility to protect (“R2P”). R2P was developed as an alternative to humanitarian intervention, allowing unilateral force by a State or a group of States to protect human rights in another State, where prevention and peaceful means fail, under authorization of the UN Security Council under existing rules of international law. While humanitarian intervention assumes a “right to intervene,” R2P is predicated on a “responsibility to protect.” Although Article 4(h) enshrines a “right to intervene”, in essence it is commonly construed as a “right of humanitarian intervention”. To this point, Dire Tladi and other scholars have rightly identified the difference between R2P and humanitarian intervention as mainly that the latter refers 149 au Constitutive Act, at art. 4(h).

292 Maluwa to the right to unilaterally intervene while the former is an application of the collective security system.150 Humanitarian intervention is a much-​contested principle, and the nature of the right to humanitarian intervention is not yet settled. Chris O’Meara, among other recent commentators on the subject, has noted that in modern times “[a right] of humanitarian intervention refers to an independent legal basis, absent State consent, United Nations Security Council (unsc) [authorization], or justifications of self-​defense, for a State to use unilateral military force to protect individuals from egregious breaches of human rights occurring in a third State.”151 Moreover, the status of the right as lex lata and as a binding norm of international law continues to be contested.152 I will not examine these debates in their detail here, as this requires a different, expansive discussion.153 In brief, although it might have appeared that the principle had crystallized over the last two decades, arguments over the relevance of humanitarian intervention in some of the long-​running conflicts of recent years—​for example in Syria and Yemen—​have revived the lingering divergence of opinion between policy-​makers and scholars.154 In fact, the reality is that the claim that humanitarian intervention was a recognized ground for using force under customary 150 See, for example, Dire Tladi, “The Intervention in Côte d’Ivoire—​2011” in Tom Ruys, Oliver Corten and Alexandra Hofer (eds.) The Use of Force in International Law: A Case-​Based Approach (Oxford University Press, 2018), at 793; Dire Tladi and Aniel de Beer “The Use of Force against Syria in Response to Alleged Use of Chemical Weapons by Syria: A Return to Humanitarian Intervention?” (2019) 79 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 205, at. 222–​226.. 151 Chris O’Meara “Should International Law Recognize a Right of Humanitarian Intervention?”(2017) 66 International and Comparative Law Quarterly 441. 152 The question of whether a right of humanitarian intervention exists in international law, or should exist, is a long-​standing and much-​debated issue. See e.g., O’Meara, id.; see also, Christopher Greenwood “Is There a Right of Humanitarian Intervention?” (1993) 49 The World Today 34; Ian Hurd “Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World” (2011) 25 Ethics and International Affairs 293. See generally Thomas G. Weiss Humanitarian Intervention (3rd ed., Polity, 2016). Most writers reject the argument that international law currently recognizes or should recognize a right of humanitarian intervention. See generally Daniel Wolf “Humanitarian Intervention” (1998) 9 Michigan Journal of International Law 333, at 363–​66; Barry M. Benjamin “Unilateral Humanitarian Intervention: Legalizing the Use of Force to Prevent Human Rights Atrocities” (1992) 16 Fordham International Law Journal 120. 153 See generally O’Meara (above note 151) (and the works cited therein). 154 See Harold Koh “Syria and the Law of Humanitarian Intervention (Part ii: International Law and the Way Forward)” (4 October 2013) ejil: Talk!, http://​www.ejiltalk.org/​ syria-​and-​the-​law-​of-​humanitarian-​intervention-​part-​ii-​international-​law-​and-​the-​ way-​forward; see also Anders Henriksen and Marc Schack “The Crisis in Syria and Humanitarian Intervention” (2014) 1 Journal on the Use of Force and International Law 122.

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international law had never been universally accepted. Significantly, at its seventeenth summit, the 120-​member Non-​Aligned Movement, representing by far the largest grouping of States after the UN, strongly rejected the doctrine of humanitarian intervention, seeing it as a pretext for intervention by powerful States that “has no basis either in the UN Charter or in international law.”155 In the aftermath of the 1994 Rwanda genocide, when the UN Security Council failed to take successful action to save lives, African States found themselves asking: If not us, then who? This question was not far from the minds of the drafters of Article 4(h) of the au Constitutive Act, and there is no doubt that the Rwanda genocide provided the backdrop for the incorporation of the right of intervention in the au Constitutive Act.156 As I have argued elsewhere: In an era in which [Africa] had witnessed the horrors of genocide and ethnic cleansing on its own soil and against its own kind, it would have been absolutely remiss for the Constitutive Act to remain silent on the question of the right to intervene in respect of grave circumstances such as genocide, war crimes and crimes against humanity.157 Consequently, when the oau Member States decided to incorporate this norm into the foundational instrument of the oau’s successor organization, some political and academic commentators were concerned that a regional instrument was attempting to usurp the authority of the UN Security Council.158

155 See Report of the Seventeenth Summit of Heads of State and Government of the Non-​ Aligned Movement, nam 2016/​CoB/​d oc.1 Corr.1. 18 September 2016, para. 777, available at http://​cns.miis.edu. 156 It is significant that the au Constitutive Act was adopted during the same oau summit when an international commission appointed by the oau to investigate the circumstances leading to and surrounding the Rwanda genocide presented in its report. See oau Rwanda: The Preventable Genocide—​The Report of the International Panel of Eminent Personalities to Investigate the 1994 Genocide in Rwanda and the Surrounding Events (2000). 157 See Maluwa (above note 78), at 28–​29; see also Ben Kioko “The Right of Intervention Under the African Union’s Constitutive Act: From Non-​Interference to Non-​Intervention” (2003) 85 International Review of the Red Cross 807. 158 See generally Jean Allain “The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq and the Emergence of the African Union” (2004) 8 Max Planck Yearbook of United Nations Law 237, at 264–​89. See also Suyash Paliwal “The Primacy of Regional Organizations in International Peacekeeping: The African Example” (2011) 51 Virginia Journal of International Law. 185; Martin Kunschak “The African Union and the Right to Intervention: Is There a Need for UN Security Council Authorization?” (2006) 31 South African Yearbook of International Law 195.

294 Maluwa To date the au has not actually intervened with military force in any situation under Article 4(h) authorization, and the fear that the au’s Peace and Security Council (psc) would usurp the primacy of the UN Security Council has not materialized. Since the adoption of the au Constitutive Act, there have been at least four situations in which the au could have claimed a right to intervene on humanitarian grounds based on Article 4(h): in Sudan (2004–​ 2005),159 Libya (2011),160 the Central African Republic (2013–​2015),161 and Burundi (2016). In the single instance in which the au did invoke Article 4(h), in relation to Burundi, it reversed course and did not carry out the intervention. For several months leading up to December 2015, a crisis raged in Burundi, with deadly incidents of fighting and carnage not seen since the end of the country’s intermittent civil war and political instability from 1993–​2005. The au feared the prospect of Burundi relapsing into another civil war. Consequently, on 17 December 2015, the psc, invoking Article 4(h), made the landmark decision to deploy a 5,000 strong force, the African Prevention and Protection Mission in Burundi (more commonly known by its French acronym maprobu). The invocation of Article 4(h) was unprecedented. The psc gave Burundi 96 hours in which to accept the deployment, failing which it would recommend that the au Assembly authorize a military intervention under Article 4(h), without the government’s consent. Due to a combination of factors—​including opposition to maprobu, threats by the Burundi government to repel any au intervention with force, and subsequent disagreement among members of the psc and, more crucially, the Burundi Government’s astute diplomacy—​when the au Assembly met during its Twenty-​Sixth Ordinary Session on 30–​31 January 2016, it decided not to support the proposed deployment. Some commentators have suggested 159 See Nsongurua J. Udombana “When Neutrality Is a Sin: The Darfur Crisis and the Crisis of Humanitarian Intervention in Sudan” (2005) 27 Human Rights Quarterly 1149. 160 The au first discussed the Libyan crisis of 2011 during its Peace and Security Council meeting on 23 February 2011. At the time, it decided that none of the crimes stipulated in Article 4(h) had been committed. Subsequently, even as the situation in Libya deteriorated, and Article 4(h) crimes were arguably being committed, the au adopted an approach aimed at encouraging the Gaddafi regime to cease attacks on its own people rather than invoking its right to intervene unilaterally on humanitarian grounds. The au’s attempts at resolving the Libyan crisis were, in any case, overtaken by the involvement of the UN in the matter, when the UN authorized intervention which, in the end, was in effect controversially outsourced to nato; see UN Security Council Resolution 1973, unsc/​R es/​1973 (2011). See Ademola Abass “The African Union’s Response to the Libyan Crisis: A Plea for Objectivity” (2014) 7 African Journal of Legal Studies 128, at 137–​38. 161 Tatiana Carayannis and Mignonne Fowlis “Lessons from African Union-​United Nations Cooperation in Peace Operations in the Central African Republic” (2017) 26 African Security Review 220.

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that a critical factor behind the rejection of the psc’s recommendation for military intervention was the resistance of several (unnamed) African leaders to set a precedent for future interventions where concerns about civilian protection might override State sovereignty.162 In the absence of documented verbatim records of the au Assembly’s deliberations on this issue, which took place in a closed session, this may be more conjecture than confirmed fact. The au had a limited presence in Darfur, but only as part of a combined un-​ au peacekeeping operation, the United Nations-​African Union Hybrid Mission in Darfur (unamid). The au’s presence in Darfur was not, therefore, an intervention force under the authority of Article 4(h).163 And although the au had an au-​led regional peacekeeping force in the Central African Republic, it was not an Article 4(h) intervention force, but was rather conceived as a peacekeeping force to support the implementation of the Libreville Peace Agreement negotiated between the country’s fragile transitional government and armed rebel groups.164 It was largely ineffective, leading the UN in 2014 to take over the peacekeeping operation.165 While it may be prudent not to draw a strong, generalized conclusion from these two situations, it is reasonable to say that they at least show how a combination of political, operational, and financial obstacles and a lack of political will and serious commitment on the part of au Member States pose an obstacle to the future implementation of an otherwise well-​intentioned principle. Realistically, with very limited financial and material resources to fund its humanitarian and peacekeeping activities—​and the possibility of continuing reticence among some Member States towards these activities—​the au will necessarily remain beholden to the goodwill of external partners and may not be able to act unilaterally without UN assistance and collaboration. Article 4(h) interventions are likely to be rare occurrences—​ which would be fine if this signified the absence of new genocides, war crimes, crimes against humanity and other gross violations of human rights in Africa. In fact, regarding the question of the au acting unilaterally to use force without the authorization of the UN Security Council, I argue that the intervening 162 See Nina Wilen and Paul D. Williams “The African Union and Coercive Diplomacy: The Case of Burundi” (2018) 56 Journal of Modern African Studies 673. 163 See Alex de Waal “Darfur and the Failure of the Responsibility to Protect” (2007) 83 International Affairs 1039, at 1054. unamid was established by UN Security Council Resolution 1769, unsc/​R es/​1769 (2007) on 31 July 2007; the deployment ended on 31 December 2020. 164 Nathaniel Olin “Pathologies of Peacekeeping and Peacebuilding in car” in Tatiana Carayannis and Louisa Lombard (eds.) Making Sense of the Central African Republic (Zed Books, 2015), at 211. 165 UN Security Council Resolution 2127, unsc/​Res/​2127 (2013).

296 Maluwa years since the adoption of the au Constitutive Act in 2000 have confirmed the view that the authorization of any intervention by the au based on Article 4(h) would not disregard the role and primacy of the UN Security Council altogether. The au itself clarified this matter in 2005 when the Executive Council adopted The Common African Position on the Proposed Reform of the United Nations: “The Ezulwini Consensus.”166 The “Ezulwini Consensus” is primarily a request for UN Security Council reform, as its title suggests. In this context, the au confirmed the primacy of the UN Security Council in matters of collective security, including with regard to the responsibility to protect and the legality of the use of force. The au Executive Council insisted that since the General Assembly and the Security Council are often far from the scenes of conflicts and may not be in a position to effectively appreciate the nature and development of conflict situations, regional organizations in proximity to conflicts must be empowered to take action.167 Yet it also agreed that intervention by regional organizations should take place only with approval by the UN Security Council in scrupulous compliance with the provisions of Article 51 of the UN Charter.168 4.2 Lessons from Pre-​AU Constitutive Act Sub-​Regional Interventions Before concluding this discussion of Article 4(h), it is worthwhile to recall that prior to the adoption of the au Constitutive Act, a sub-​regional African organization, the Economic Community of West African States (ecowas) had intervened in Liberia and Sierra Leone in 1990169 and 1998,170 respectively, ostensibly on humanitarian grounds, without authorization by the UN Security Council. Undoubtedly, this was a usurpation of Article 53 of the UN Charter, which expressly stipulates that no enforcement action shall be taken under regional agencies or by regional arrangements without authorization of the Security Council. Nevertheless, both interventions were subsequently praised, rather than condemned, by the Security Council.171 Commenting on 166 African Union Executive Council The Common African Position on the Proposed Reform of the United Nations: “The Ezulwini Consensus”, Doc. Ext/​e x.cl/​2 (vii) (8 March 2005). 167 Id., para. B(i). 168 Id., para. B(ii). 169 See generally Max A. Sesay “Civil War and Collective Intervention in Liberia”(1996) 23 Review of African Political Economy 35. 170 See generally L. F. Berger “State Practice Evidence of the Humanitarian Intervention Doctrine: The ecowas Intervention in Sierra Leone” (2001) 11 Indian International and Comparative Law Review 605. 171 See UN Security Council Resolution 788, unsc/​R es/​788 (1992); UN Security Council Resolution 1162, unsc/​R es/​1162 (1998).

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the ecowas interventions, Ben Kioko has aptly observed that “the UN Security Council has never complained about its powers being usurped,” apparently “because the interventions were in support of popular causes and were carried out partly because the UN Security Council had not taken action or was unlikely to do so at the time.”172 The Security Council’s post hoc validation of nato’s controversial intervention in Kosovo in 1999 followed the pattern of its response to African States, allowing a “regional” doctrine of intervention that overrides State sovereignty to protect human rights and democracy.173 Thus, the late Thomas Franck, a leading scholar on the subject, asserted that the ecowas interventions “seemed to signal that the Council, in appropriate circumstances, could retroactively sanitize an action that may have been of doubtful legality at the time it was taken.”174 In particular, it signalled to Franck that for “purely humanitarian” operations, regional organizations may “use force, even absent specific prior Security Council authorization, when that seem[s]‌the only way to respond to impending humanitarian disasters.”175 Jeremy Levitt has argued that the Liberia case may provide evidence that the jus ad bellum now has, or is developing, a standard that permits unilateral interventions.176 In essence, the right of collective intervention is now recognized within the context of African regional international conventional law through Article 4(h) of the au Constitutive Act. However, the majority view at the international level is that the behaviour of States does not evince such a standard. Monica Hakimi has noted that although States have periodically endorsed actions that can be characterized as unilateral humanitarian interventions, like the ecowas intervention in Liberia, most States have declined

172 See Kioko (above note 157), at 821. Other scholars agree with Kioko’s observation. See, e.g., Christian Walter “Article 53” in Bruno Simma, Daniel Erasmus-​Khan, Georg Nolte and Andreas Paulus (eds.) The United Nations Charter: A Commentary (3rd ed., Oxford, 2012), 1478 at 1501 (arguing that the Security Council had ample opportunity to authorize the intervention, but never did, and that it seemed disinterested in authorizing the intervention, at least during the early stages of the conflict). 173 See generally Sean Murphy Humanitarian Intervention: The United Nations in an Evolving World Order (University of Pennsylvania, 1996); Thomas M. Franck “Lessons of Kosovo” (1999) 93 American Journal of International Law 857, at 859; David Wippman “Kosovo and the Limits of International Law” (2001) 25 Fordham International Law Journal 129. 174 Thomas M. Franck Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge, 2002), at 156. 175 Id., at 162. 176 See, e.g., Jeremy Levitt “Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of ECOWAS in Liberia and Sierra Leone” (1998) 12 Temple International and Comparative Law Journal 333, at 347.

298 Maluwa to support a general standard to that effect.177 The view expressed by Hakimi on Liberia stands in stark contrast to Levitt’s position. After examining a number of pre-​and post-​AU Constitutive Act humanitarian interventions and “pro-​ democratic interventions” (“pdi”) in member countries by the au and two African sub-​regional groups, ecowas and the Southern African Development Community (sadc),178 Levitt concludes that: Africa’s new interventionism (backed by hard law) [has] not only influenced State behaviour inside and outside Africa; it has also added significant weight and shape to the development of the corpus of international law including the emerging norm of PDI and the doctrine of humanitarian intervention. Although it may be too early to claim that a right of PDI exists under customary international law, its recognition as a treaty-​based right and one firmly established in customary regional law in Africa and arguably Latin America is both timely and futuristic.179 Levitt’s conclusion, which I do not support, is not based exclusively on his reading of Article 4(h), but also on the pre-​AU Constitutive Act ecowas interventions in Liberia and Sierra Leone. However, while his point about Africa’s new interventionism may be valid within the context of the specific instances that he examines, the claim that it has influenced State behaviour outside Africa seems premature and exaggerated—​except perhaps to the extent that the unsc’s responses to Africa’s interventionism have laid the groundwork for its responses to other interventions around the world. Erika de Wet has also studied the various interventions and military operations undertaken by ecowas in Côte d’Ivoire, Guinea, Liberia and Sierra

177 Monica Hakimi “The Jus Ad Bellum’s Regulatory Form” (2018) 112 American Journal of International Law 151, at 163, 176–​78 (examining the ecowas intervention in Liberia, the role of the Security Council in the incident, and the arguments about the emergence of a standard permitting unilateral humanitarian intervention). 178 See Jeremy Levitt “Pro-​ Democratic Intervention in Africa” (2006) 24 Wisconsin International Law Journal 785, at 795–​803, 818–​823. sadc has intervened in two sadc member countries in Lesotho (in May 1998 to quell post-​election violence and political instability) and Democratic Republic of the Congo (first in 1998 when it invoked collective security to beat back a Rwandan and Ugandan invasion; and secondly in 2013, along with other institutions, including the UN, au and the International Conference of the Great Lakes Region to help the government to neutralize the M23 rebels in the eastern part of the country). 179 Levitt, id., at 833.

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Leone, and by sadc in Democratic Republic of the Congo and Lesotho.180 She concludes that it seems premature to suggest that the practice of African sub-​regional organizations amounts to the emergence of a new customary right to engage in “first-​instance enforcement action.”181 I agree with the view that these pre-​AU Constitutive Act interventions have not given rise to a new African sub-​regional customary norm. I thus find the claim by Suyash Paliwal that such a new regional customary norm now exists to be somewhat exaggerated, given the very limited instances of state practice on which the alleged customary rule is based.182 In sum, the au Constitutive Act can claim credit for being the first regional legal instrument to confirm and codify the norm of intervention by a regional organization, despite uncertainty over whether the au can, in practice, intervene unilaterally (i.e. without UN Security Council authorisation) for humanitarian ends. As already noted above, the right of intervention in the au Constitutive Act is based on the fundamental value of respect for and protection of human life and human security. The African Union has taken the lead in codifying it as a treaty norm in contemporary international law, at least for the African region. It is a treaty norm aimed at reinforcing and supporting the prohibitions of gross violations of human rights, including genocide, war crimes and crimes against humanity, all of which have been described as peremptory norms of general international law or jus cogens. To reiterate my earlier point, this is not to suggest that the right of intervention itself has attained the status of a peremptory norm, but that its incorporation in the au Constitutive Act offers treaty evidence of the acceptance and recognition by African States of the peremptory norms that Article 4(h) seeks to protect. 5

A Concluding Observation

This chapter has examined African state practice through the multiple lenses of multilateral treaty norms (the oau Charter, the oau Refugee Convention and the au Constitutive Act), resolutions of its regional organizations (the oau and au), national legislation and the decisions of national courts. On the three specific issues selected for examination—​decolonization and the right 180 See Erika de Wet “The Evolving Role of ECOWAS and the SADC in Peace Operations: A Challenge to the Primacy of the United Nations Security Council in Matters of Peace and Security?” (2014) 27 Leiden Journal of International Law 353. 181 Id., at 369. 182 Paliwal (above note 158), at 220–​21.

300 Maluwa of self-​determination, the principle of non-​refoulement in international refugee law,183 and humanitarian intervention to prevent or stop violations of the basic rules of international humanitarian law—​I conclude with the proposition that the African region has unmistakably contributed to the formation of certain peremptory norms of general international law or rules of jus cogens. As treaty obligations, the provisions of the oau Charter on the eradication of all forms of colonialism and adherence to the total emancipation of dependent African territories bound all its members. Those provisions articulated the principle of self-​determination. The number oau members committed to this objective and the principle increased from the original 32 in 1963 to 53 by the time it was replaced by the au in 2002. In time, therefore, the reach of the treaty provisions embraced every independent State on the continent. Moreover, the numerous resolutions on issues of decolonization and self-​determination, although not legally binding as such, were at all stages adopted unanimously by the Member States (including Morocco, at least until its withdrawal from the oau in 1984). Similarly, today the provisions of the au Constitutive Act, including Article 4(h), bind all the 55 Member States, who have also supported relevant resolutions and declarations adopted at various times by the new organization. As already noted, with its current 46 ratifications/​accessions, the number of States Parties that have accepted the principle of non-​refoulement as a treaty obligation under the oau Refugee Convention is also exceedingly high, by the standards of au/​o au treaties, surpassed only by five out of more than fifty instruments. Compliance with treaty obligations is the most obvious indicator of acceptance by States Parties of the principles encapsulated in a treaty. Such compliance assumes particular significance where the treaty is not only laying down mutual obligations among the parties but also setting out new norms of international law or reaffirming existing ones. Measuring compliance with treaty obligations requires empirical observation and assessment, especially for treaties establishing obligations on the part of the State for the benefit of individuals in its territory, such as the oau Refugee Convention and the African Charter. Statements by States, policy pronouncements, administrative and legislative acts, government legal opinions, and decisions of national courts are all empirical factors relevant for determining state conduct and practice. The evidence of the commitment of African States to the norms discussed above in 183 My discussion of the principle of non-​refoulement has been in the specific context of international refugee law. However, the South African cases examined to illustrate judicial evidence of its acceptance and recognition as a jus cogens norm suggest a broader notion of a principle that is relevant to other aspects of international human rights.

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the context of these treaty obligations and the decisions and acts adopted by their regional organizations—​the oau and the au—​is not in doubt. Equally, the contribution of African state practice to the formation of these particular peremptory norms of general international law, and their acceptance and recognition of these norms, cannot be in doubt. Whether there is acceptance and recognition by the international community of States as a whole of all, or only some, of these norms as peremptory norms of general international law or rules of jus cogens is a separate question altogether.

Chapter 11

Is There Any Regional Jus Cogens in Europe? The Case of the European Convention on Human Rights Pavel Šturma 1

Introduction

In 2019, that is 50 years from the adoption of the Vienna Convention on the Law of Treaties (vclt, 1969), the UN International Law Commission (ilc) adopted, on its first reading, an entire set of Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens).1 It is true that the draft conclusions, in accordance with the definition in Article 53 of the Vienna Convention, only deal with “peremptory norms of general international law”, thus leaving aside any hypothetical regional jus cogens. It appears not only from the scope (Conclusion 1) and the definition (Conclusion 2), which mirrors the definition in Article 53, but also from Conclusion 3 which explains very aptly the general nature of peremptory norms.2 All the draft conclusions as well as the general sense of the debate within the ilc support the decision to address only peremptory norms of general international law. The very title of our topic seems to justify this decision. Already in his first report in 2016, Prof. Tladi, Special Rapporteur, raised the issue of regional jus cogens, though he found this theory “somewhat obscure”.3 Most members of the ilc did not support the idea of regional jus cogens, which was seen as having the potential to contribute to the fragmentation of international law. At the same time, some members pointed out, that certain regional rules have the nature of public order or peremptory character. Therefore, some members of the Commission took the view that it could not exclude a priori

1 Draft Conclusions on Peremptory Norms of general international law (jus cogens), Report of the International Law Commission, Seventy-​first session, General Assembly Official Records (A/​74/​10)(2019). 2 Id., Draft Conclusion 3: “Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable”. 3 See First Report of Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693) (2016), at para. 68.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_012

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the existence of such rules.4 However, the question of a possible regional jus cogens was discussed again in the fourth report of the Special Rapporteur.5 Moreover, the interesting debate that the ilc had on this issue in 2019 warrants a brief description. This contribution will thus address first, in section 2, some theoretical issues of regional jus cogens and similar concepts that might support or question that theory. It will then, in section 3, focus on the European Convention on Human Rights (echr) as the most cited example of a European jus cogens or ordre public. Section 4 of this paper will explore the effects of this regional treaty regime (giving rise to the concept of the European ordre public) in the law of treaties, such as reservations and conflict of norms, and its effects beyond the law of treaties, in particular in the area of international responsibility. Finally, the conclusion will explain the legal nature of special features of the echr and compare it with the peremptory norms of general international law. 2

Theoretical and Historical Aspects of the Theory of Regional Jus Cogens

Academic debates on the issue of regional jus cogens are not of recent vintage. They started even before the adoption of the vclt and its Article 53 and continue after its adoption up to now. Nevertheless, various authors advocating or criticizing the existence of particular (e.g. regional) jus cogens put forward very different arguments. At the early stage, both prior and subsequent to the adoption of the vclt, most debates on particular peremptory norms were based on theoretical grounds rather than on the specific examples of norms aspiring to status of jus cogens. The views of some older authors advocating the existence of regional jus cogens bear on the argument that, on the basis of Article 53 of the vclt, norms of jus cogens belong to general international law only as far as that Convention is concerned.6 This opinion was shared by a Russian author Shestakov who, however, expressed the view that “international practice cannot bring an

4 Report of the International Law Commission, Sixty-​eighth session, General Assembly Official Records, (A/​71/​10) (2016), Chapter ix on Jus Cogens at paras. 119–​120. 5 See Fourth Report of Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019). 6 Christo L. Rozakis The Concept of Jus Cogens in the Law of Treaties (North-​Holland, 1976), at 56.

304 Šturma undisputable example of the existence of such norms”.7 Other authors, such as Virally, refuted, again on a theoretical basis, the existence of regional jus cogens. In his view “if certain rules in force within a particular group of States are considered particularly important and accordingly prevail over others, it does not necessarily follow that they take on the character of jus cogens”.8 The approach of Virally seems to be very sensible. It may help to understand the views of Kolb and other more recent authors who address the concept of jus cogens from a theoretical perspective, and who advance the peremptory status of certain substantive rules of international law. It also provides a methodological background for the case study of regional jus cogens, the European Convention on Human Rights. One of the contemporary authors who admit the existence of regional (or even bilateral) jus cogens is Kolb. He expresses his slightly nuanced views in several works.9 Notwithstanding certain theoretical fluctuations, his view on jus cogens seems to be different from the approach adopted by the ilc. According to the Special Rapporteur Tladi, “Kolb’s approach to jus cogens … which lacks the universalist, absolutist and hierarchical superiority ambition, may, in contrast to the approach adopted by the Commission, be fully consistent with the idea of regional jus cogens”.10 In other words, he views jus cogens as a mere “legal technique”, one that can apply and be employed in variety of ways.11 It is important to stress that for him there are “different types of jus cogens whose role and effects in international law are not the same”.12 Under this theory, any rule which cannot be altered can constitute “jus cogens”.13 Obviously, this opens a way to the doctrine of regional peremptory norms.

7 8 9

10 11 12 13

L.N. Shestakov Imperativnye normy v sisteme sovremennogo mezhdunarodnogo prava [Peremptory norms in the system of contemporary international law], (Izdatelstvo mgu /​Moscow State University Publ.,1981), at 35–​36. Michel Virally “Réflexions sur le ‘Jus Cogens’ ” (1966) xiii Annuaire Français de Droit International 5, at 14. See, in particular, Robert Kolb Peremptory International Law (Jus Cogens): A General Inventory (Hart, 2015), especially at 97; Robert Kolb “Formal Source of Jus Cogens in Public International Law” (1998) 53 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 69, at 99. See in this volume Robert Kolb “Peremptory Norms as a Legal Technique rather than Substantive Super-​Norms” (Chapter 2). Dire Tladi Fourth Report on Jus Cogens (above note 5), at para. 23. Compare Thomas Kleinlein “Jus Cogens Re-​examined: Value Formalism in International law” (2017) 28 European Journal of International Law 295, at 297. Robert Kolb Peremptory International Law (above note 9), at 45. Id., at 51–​54.

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There are a few other authors that admit (or at least do not exclude) a theoretical possibility of regional norms of jus cogens, such as Czapliński14 and Gaja. Giorgio Gaja does not seem to adopt the formalistic approach of Kolb. Instead, he points to values prevailing in regional groups.15 This approach seems to be a bridge to the third category of authors who join the theory of regional jus cogens with certain substantive norms, mostly regional systems of human rights protection. Among the advocates of that approach is Erika de Wet who suggests that obligations in the European Convention on Human Rights have become “regional customary law and arguably even … regional jus cogens”.16 Other authors concluded on peremptory nature of some human rights on the basis of certain cases in the European or Inter-​American system.17 Similarly, Villiger called the European Convention “a constitutional document of the European ordre public”.18 The author of this contribution is of the opinion, similar to that expressed by Virally, that it is not meaningful to characterize as jus cogens some other norms or normative techniques that serve similar but different purposes. The ilc Draft Conclusions on general characteristics and definition of jus cogens, provisionally adopted in 2019, also help to distinguish genuine peremptory norms, in the sense of Article 53 of the Vienna Convention, from other legal techniques that provide for the mandatory or non-​derogable nature of some rules, or the prioritization in the application of such rules. Such other cases include, inter alia, norms that are non-​derogable for public utility or logical 14 15

16 17

18

Wladyslaw Czapliński “Jus Cogens and the Law of Treaties” in Christian Tomuschat and Jean Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff, 2006) 83, at 92–​93. Giorgio Gaja “Jus Cogens beyond the Vienna Convention” (1981) 172 Collected Courses of the Hague Academy of International Law 279, at 284: “No convincing reason has ever been given for ruling out the possibility of the existence of non-​universal, or “regional” peremptory norms. Values prevailing in regional groups do not necessarily conflict with values operating in a larger framework. There may be norms which acquire a peremptory character only in a regional context”. Erika de Wet “The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order” (2006) 19 Leiden Journal of International Law 611, at 617. See Antonio Cançado Trindade “Enforced Disappearance of Persons as a Violation of Jus Cogens: The Contribution of the Jurisprudence of the Inter-​American Court of Human Rights” (2012) 81 Nordic Journal of International Law, 507; P. Tavernier “L’Identification des Règles Fondamentales, un Problème Résolu ?” in Christian Tomuschat and Jean Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (Martinus Nijhoff, 2006) 16. Mark Villiger Commentary on the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff, 2009), at 676.

306 Šturma reasons, to use the terms of Prof. Kolb. An example of these being the inviolability of diplomatic missions and representatives, as recognized also in the ilc Articles on State Responsibility. However, there are also other candidates for regional norms of jus cogens, identified for example by regional human rights courts, which themselves are based on special treaty regimes (such as the American Convention or European Convention on Human Rights). This idea is reflected in the concept of “European public order” used by the European Court of Human Rights.19 This term is useful because it captures the priority status of certain norms without calling them jus cogens. On the other hand, the discussion on regional jus cogens may also recall other concepts, such as the “socialist international law” (briefly but quite correctly addressed in the report of the Special Rapporteur Tladi)20 or the “Jus Publicum Europaeum”,21 burdened by well-​known historical connotations. It is worth mentioning that some Western authors even mentioned the so-​called Brezhnev doctrine as an example of a peremptory norm among the socialist States of Eastern Europe.22 These concepts, predominantly political in nature, are strange enough that it might be too easy to discredit (and eventually discard) any concept of regional jus cogens. Nevertheless, since the concept of “socialist international law”, which originated in Soviet doctrine, was echoed in writings outside this historical and geographical context, it may be useful to briefly comment on it. Most reflections and conclusions about that socialist or Soviet doctrine are based on the English translation of the well-​known book of Gregory Tunkin,23 the leading Soviet professor of international law, who was known abroad. In short, his views stem from the idea, shared also by some other international lawyers in Eastern Europe, of the parallel existence of three subsystems of international law: “bourgeois international law”, “socialist international law” and general international law which was of a compromise character. It is only in this context where the idea of Tunkin is situated. To him, it is “a higher type of international law –​a socialist international law” that is coming to replace 19 20 21 22 23

See, in particular the European Court of Human Rights’ case Loizidou v. Turkey, Judgement of the European Court of Human Rights, 23 March 1995, at para. 75. See Dire Tladi Fourth Report on Jus Cogens (above note 5), at paras. 41-​44. See Carl Schmitt The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, (translated by G.L. Ulmen) (Telos Press, 2003). Robert Kolb “Conflits entre Normes de Jus Cogens” in Nicolas Angelet (ed.) Droit du Pouvoir, Pouvoir du Droit: Mélanges Offertes à Jean Salmon. (Bruylant, 2007) 481, at 499. Gregory Tunkin Theory of International Law (translated by W.E. Butler) (Harvard University Press, 1974).

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contemporary general international law but only “among States of the socialist system”.24 However, this approach is quite different from the concept of jus cogens under Article 53 of the vclt. Even during the cold war (and the existence of socialist countries in Eastern Europe), some authors distinguished themselves from the Tunkin´s theory. In Czechoslovakia, for example, professors Čepelka and David took a different position to the concept of “socialist international law” and jus cogens.25 In particular, Čepelka pointed out that the influence of the Soviet Union and other socialist States contributed to the transformation of general international law from the traditional, fully dispositive law to the contemporary international legal order that include a certain minimum content of jus cogens norms. However, those are peremptory norms of general international law. Consequently, the notion of “socialist international law” could only denote the rules applicable among socialist States, which might only derogate from dispositive rules of general customary international law, and not from jus cogens. Moreover, even some authors in the former Soviet Union who wrote on the issue of peremptory norms in the era of Brezhnev and Tunkin viewed that concept as a part of general international law and did not defend any regional jus cogens.26 This is also the view of the recent Czech and Slovak publications on peremptory norms of international law,27 even if focused on human rights,28 as well as in the writings of other nations in Central and Eastern Europe which were parts of the so-​called “Eastern bloc” during the cold war.29 24 25

Id.,at 444–​446. Čestmir Čepelka and Vladislav David Úvod do mezinárodního práva [Introduction to International Law] (Brno, 1978), at 87–​88; Čestmir Čepelka “Pojem ‘socialistické mezinárodní právo’ a jus cogens [Concept “socialist international law” and jus cogens] (1977) 1 Acta Universitatis Carolinae Iuridica, at 22. 26 See Levan A. Alexidze Nekotorye voprosy teorii mezhdunarodnogo prava. Imperativnye normy. Jus cogens [Some Questions of the Theory of International Law. Peremptory Norms: Jus Cogens] (Tbilisi, 1982); Lev Nikitovich Shestakov Imperativnye normy v sisteme mezhdunarodnogo prava [Peremptory Norms in the System of Contemporary International Law] (Moscow, 1981). 27 See, e.g., Michaela Sýkorová, Jus Cogens v medzinárodnom práve [Jus Cogens in International Law] (CU Faculty of Law press, 2019), at 78–​80. 28 See Pavel Šturma “Human Rights as an Example of Peremptory Norms of General International Law” in Pavel Šturma, N.L.X. Baez (eds.) International and Internal Mechanisms of Fundamental Rights Effectiveness (rww, 2015), at 11–​21. 29 See, e.g., Cezary Mik “Jus Cogens in Contemporary International Law” (2013) 33 Polish Yearbook of International Law 27, at 38–​39; Danilo Türk Základy mezinárodního práva [Foundations of International Law] (Czech translation from Slovenian) (Praha, 2013), at 222–​223.

308 Šturma In sum, it seems that the decision of the ilc taken in 2019 that a draft conclusion on regional jus cogens is not necessary and this can be explained in the commentary is correct. This is, however, without precluding a future debate and the possibility that some regional norms may progressively evolve in peremptory norms of general international law. 3

Effects of Norms of the European Convention on Human Rights in the Law of Treaties

If there is any plausible candidate for regional norms of jus cogens, it will be probably the case of the European Convention on Human Rights. This is not just because of some doctrinal views (see above) but flows also from case law of the European Court of Human Rights (ECtHR) that called the Convention a document of “European public order”.30 Therefore, it is useful to analyse the nature and effects of the obligations flowing from the European public order in order to confirm or refute the possible peremptory character of the echr. This analysis will be done first from the point of view of the law of treaties. Even if the echr as a treaty can only bind its States parties, the question can still be asked, if and to what extent a particular provision applies to a certain State. In order to do so, it is necessary to consider the regime of reservations first. Prohibition of General Reservations and Legal Effects of Such Reservations The regime of reservations under the echr is linked to a more general problem of admissibility and the effect of reservations to certain treaties, namely treaties of humanitarian nature (largo sensu). Such conventions are, arguably, in some respects different from other multilateral treaties that contain obligations with the bilateral structure. Such multilateral instruments can be divided, when applied, into several bilateral relations governed by the principle of reciprocity. On the contrary, conventions of humanitarian character (including the echr) represent the instruments with an integral structure.31 Such treaty instruments do not provide for reciprocal rights and obligations of States (quid pro quo) but they set forth certain common goals that the States undertake to 3.1

30 31

See. e.g. Loizidou v. Turkey (above note 19). See Gérard Cohen-​Jonathan “Les Réserves à la Convention Européenne des Droits de l’Homme” (1989) 2 Revue Générale de Droit International Public 273, at 277–​278.

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follow, namely the protection of human rights. These rights are addressed to individuals, with States parties assuming only obligations. Such conventions do not usually include an express prohibition of reservations but the application of reservations risks being contrary to the object and purpose of human rights treaties.32 In this sense, the International Court of Justice concluded in its 1951 Advisory Opinion concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide:33 The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. … In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties. This very important and progressive opinion remains nonetheless in the classical scheme of “reservation –​acceptance –​objection”. This regime was incorporated into the 1969 Vienna Convention. The permissibility of reservations is governed by Article 19 of vclt, with the regime of acceptance and objection being set forth in Article 20. It is noteworthy that the ilc also discussed the issue of reservations to human rights treaties in the context of its work on the Guide to Practice on Reservations to Treaties (2011). However, it did not adopt a special guideline to this end, as the general rule of compatibility with the object and purpose of the treaty equally applies to human rights treaties. The echr has a special provision on the admissibility of reservations in Article 57, para. 1, of the echr that provides: Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. 32 33

See Jochen Abr. Frowein “Reservations to the European Convention on Human Rights” in Franz Matscher, Herbert Petzold (eds.) Protecting Human Rights: The European Dimension (Carl Heymanns, 1988) 193, at 193. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion, icj Reports 1951, p. 15, at 23–​24.

310 Šturma The key is the prohibition of “reservations of a general character”. However, the echr does not explain what it means under that term. According to some views, the Vienna system of reservations and objections is not suitable for treaties such as the echr that do not operate in the framework of reciprocity.34 The convention includes obligations erga omnes partes where beneficiaries of rights are individuals. The States parties have to ensure the rights in the echr to “everyone within their jurisdiction” (Article 1), irrespective of the nationality of such individuals. Therefore, States parties ought to have no interest in formulating objections. However, the (non)activity of States has been largely substituted by the interpretation of echr’s control bodies, in particular the European Court of Human Rights. The development of case-​law started from the decision of the (former) European Commission of Human Rights in Temeltach (1982)35 to the landmark decisions of the ECtHR in Belilos36 and later Loizidou.37 In particular, in Belilos case, the ECtHR, assessing a declaration of Switzerland, stated that the silence of the depositary and of contracting States did not deprive the organs of the Convention of their power of appreciation. Therefore, the ECtHR examined the validity of the declaration as a reservation from the perspective of Article 64 (now Article 57) of the echr and decided that the reservation was of a “too general character”. The case-​law of the ECtHR goes to the point that reservations of a general character were found not permissible and thus without any effect. The State party in question, therefore, remained bound by the entirety of the text of the echr without the benefit of the reservation. At first sight, this could be interpreted as having the same effect as the absence of effect of reservations to treaties on peremptory norms of general international law, according to draft conclusion 13.38 However, at closer examination, nothing supports that conclusion. The Court bears its rejection of the validity of the declaration/​reservation in question on the treaty provision that 34 35 36 37 38

Cohen-​Jonathan (above note 31), at 278. Temeltasch v. Switzerland, Report of the European Commission of Human Rights, 5 May 1982, at para. 84. Belilos v. Switzerland, Judgement of the European Court on Human Rights, 29 April 1988. Loizidou v. Turkey (above note 19). Draft Conlcusion 13 of the Draft Conclusions on Peremptory Norms (above note 1): “1. A reservation to a treaty provision that reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply as such”. 2. A reservation cannot exclude or modify the legal effect of a treaty in a manner contrary to a peremptory norm of general international law (jus cogens)”.

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prohibits “reservations of a general character”, not on the customary or even peremptory nature of the substantive human right. All in all, however progressive the case-​law of the ECtHR may be, concerning reservations, it remains in the realm of treaty law. This is in spite of the famous obiter dictum that the echr constitutes “a constitutional instrument of European public order”.39 The conclusions reached by the ECtHR in several instances of reservations also seem to be fully compatible with the ilc Guide to Practice on Reservations to Treaties (2011), as its guideline 4.5.1 provides for the nullity of an invalid reservation.40 It means that the nullity of certain reservations that are prohibited or not compatible with the object and purpose of the treaty does not necessarily reflect the nature of jus cogens of human rights or other substantive provisions. In this sense, the echr does not differ from other multilateral treaties. What is different, however, is the obligatory jurisdiction of the ECtHR that also assumes the power to control the permissibility and effects of reservations. 3.2 Priority of Certain Norms of the echr It seems to be evident that rules of the echr, being a multilateral treaty, have effect erga omnes partes, despite some exceptions arising from the limited possibility of reservations and from limitations of and temporary derogations from certain rights. However, the limitations and derogations concern only some human rights while others seem to be absolute. This brings the inquiry into a hypothetical peremptory nature of the echr to another question, namely that of the hierarchy and conflicts of norms. The answer to the question has to be affirmative because Article 15(2) of the echr establishes a certain kind of hierarchy of human rights. It makes a distinction between so-​ called absolute or non-​ derogable rights, which are enumerated in para. 2,41 and other rights

39 40

41

Loizidou v. Turkey (above note 19), at para. 75. See Guideline 4.5.1 of the Guide to Practice on Reservations, Report of the International Law Commission, Sixty-​Third Session, General Assembly Official Records (A/​66/​10/​ add.1): “A reservation that does not meet the conditions of formal validity and permissibility set out in Parts 2 and 3 of the Guide to Practice is null and void, and therefore devoid of any legal effect”. Art 15, para. 2: “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision”. These provisions guarantee the right to life, the prohibition of torture and other inhuman or degrading treatment or punishment, the prohibition of slavery or servitude, and the principle of no punishment without law (nullum crimen sine lege).

312 Šturma that may be suspended under the conditions in para. 1 of Article 15.42 These conditions need to be fulfilled cumulatively. Nevertheless, the last condition that “such measures are not inconsistent with its other obligations under international law” is not entirely clear. Such “other obligations” may denote three different situations: (1) obligations under general international law with the same content; (2) other obligations (of different content) concerning the terms of the restriction, such as the prohibition of discrimination;43 and (3) provisions enumerated in Article 15, para. 2, of the echr. The last option seems to be the simplest one but it has to be ruled out, because such interpretation would deprive the provision of paragraph 1 any meaning in view of the express prohibition of derogation of certain rights in paragraph 2. Therefore, other obligations should mean other obligations based in international customary or treaty law. From the point of view of this contribution, however, of greater interest is the interpretation of the term “derogation” and exceptions thereto in Article 15. In spite of the language used (measures derogating from, no derogation, etc.), the correct legal meaning is rather the suspension of application of treaty-​ based obligations.44 This interpretation is corroborated by the third paragraph of the article, which provides for any Contracting Party availing itself of this right the obligation to inform the Secretary General of the Council of Europe “when such measures have ceased to operate and the provisions of the Convention are again being fully executed”. It implies that “derogation” in the sense of temporary suspension of application of certain rights under the echr, as well as the exception thereto (para. 2) are treaty-​based possibilities for States parties to the echr. They do not have any impact on the rights under customary international law and even on the applicability of the same rights under another international treaty. It should be therefore distinguished from the strict sense of the term “derogation” in Article 53 of the vclt. The very concept of jus cogens implies the existence of peremptory norms of general international law from which no derogation is permitted 42

43 44

Art15, para. 1: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”. This condition appears, expressis verbis, in Article 4(1) of the 1966 International Covenant on Civil and Political Rights. In the European Charter on Human Rights, the obligation of non-​discrimination results from Article 14. See Frédéric Sudre La Convention Européenne des Droits de l’Homme (Presses Universitaires de France, 1990), at 29.

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and which can be modified only by a subsequent norm of international law having the same character. The reference to modification also suggests interpreting “derogation” as a replacement (the end of validity) rather than a mere temporary suspension of operation of the norm in question. Moreover, the list of non-​derogable rights in the echr differs from similar provisions in other major human rights treaties,45 such as the iccpr and the American Convention on Human Rights.46 The list of privileged (absolute) rights is longer in these two conventions. In addition to the rights enumerated in Article 15(2) of the echr, the iccpr adds the prohibition of imprisonment for contractual debts, the right to legal personality, and freedom of thought, conscience and religion. The American Convention includes all the above-​ mentioned rights and adds the family rights, the right to name, the rights of children, the right to nationality, and the right of participation in government. What is interesting, however, is that many of such rights, though declared non-​ derogable in time of war or other public emergency, are far from absolute, as they are subject to various limitations even in peace time. Another interesting fact is that many other human rights treaties do not include such provisions on derogation in the emergency situations.47 All in all, this supports the view that States are free to include or not into their human rights treaties such derogation clauses as well as clauses setting a priority status for certain human rights. Such provisions are a matter of treaty law, which is different from the possible status of certain rights under peremptory norms of general international law. 4

Effects of the echr beyond the Law of Treaties

One of the well-​known and recognized effects of jus cogens is that peremptory norms of general international law give rise to obligations owed to the international community as a whole, in which all States have a legal interest.48 However, the notion of obligations erga omnes is not a synonym but rather a 45 46 47 48

See, e.g., Rosalyn Higgins “Derogations under Human Rights Treaties” (1976–​1977) 48 British Yearbook of International Law 281; Jaime Oraá Human Rights in States of Emergency in International Law (Clarendon Press, 1992). See Article 4 of the iccpr; Article 27 of the 1969 American Convention on Human Rights. See Fatsah Ouguergouz “L’Absence de Clause de Dérogation dans Certains Traités Relatifs aux Droits de l’Homme : les Réponses du Droit International Général” (1994) 92 (2) Revue Générale de Droit International Public 289. See Draft Conclusion 17 of the Draft Conclusions on Peremptory Norms (above note 1), “1. Peremptory norms of general international law (jus cogens) give rise to obligations owned

314 Šturma consequence of the peremptory nature of a norm. In other words, “Erga omnes status is a consequence, not a cause, of a right’s fundamental character”.49 It should be recalled that the well-​known dictum of the icj in the Barcelona Traction case introduced the concept of obligations erga omnes in the context of general international law. Even though the Court did not expressly link that concept to the peremptory norms, the examples clearly show that it pointed to several norms of jus cogens.50 In particular, the character of obligations erga omnes is important for the purpose of the responsibility of States.51 The ilc draft conclusions on jus cogens reflect faithfully the content of Articles on Responsibility of States for Internationally Wrongful Acts (arsiwa, 2001).52 In this context, it is necessary to ask the question if and to what extent a breach of obligations in the echr entails legal consequences erga omnes. However, the responsibility consequences erga omnes can only follow the breach of obligations having the same character. In other words, the special legal consequences of the breach (secondary obligations) depend on the nature erga omnes of primary obligations. In fact, it is important to distinguish between the application (or not) of general rules of State responsibility to violations of the echr and a special regime of State responsibility under the Convention itself. On the one hand, when it comes to the first hypothesis, nothing prevents the legal consequences erga omnes for violations of rights guaranteed by the echr that are at the same time peremptory norms of general international law. It may be the case in particular for breaches of the prohibitions of torture and slavery. Nevertheless, this can hardly be used as an argument in favour of the echr as a regional (European) jus cogens.

49 50 51

52

to the international community as a whole (obligations erga omnes), in which all States have a legal interest”. Theodor Meron Human Rights and Humanitarian Norms as Customary Law (Oxford, 1989), at 192. Barcelona Traction, Light and Power Company, Limited, Judgment, icj Reports 1970, p. 32, at paras. 33-​34: “such obligations derive from the outlawing of acts of aggression, and of genocide … protection for slavery and racial discrimination”. Draft Conclusion 17(2) of the Draft Conclusions on Peremptory Norms (above note 1): “Any State is entitled to invoke the responsibility of another State for a breach of a peremptory norms of general international law (jus cogens), in accordance with the rules on the responsibility of States for internationally wrongful acts”. The Draft Conclusions 18 and 19 of the Draft Conclusions on Peremptory Norms (above note 1) correspond to Articles 26 and 41 of 2001 Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10).

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On the other hand, to the extent that the echr includes a special regime of State responsibility for breaches of the Convention’s provisions, it may or may not entail legal consequences with the effect erga omnes or rather erga omnes partes. First, the logic of treaty law, expressed by the principle of relative effects of a treaty,53 explains that, unlike in case of jus cogens and other obligations under general international law, it is not any State that is entitled to invoke the responsibility of another State for a breach of rules of the echr. At the very best, it may be any State party of the Convention that is able to invoke the responsibility of another State party (i.e. obligations erga omnes partes). Next, the issue of the applicability of general rules of States responsibility or the emergence of a special conventional regime of responsibility is far from being clearly settled. While a detailed discussion would go beyond the limited scope of this contribution, one should note that there are very different doctrinal views on this issue. For example, Evans wrote that the character of the echr as a human rights treaty “makes the international principles of State responsibility irrelevant to its operation, so it is not clear why they should be referred to at all”.54 Other authors argue that the echr goes beyond what is traditionally envisaged under the law of international responsibility since individuals have direct access to the Court.55 Indeed, the direct access of individuals related to the individual applications (in difference from inter-​state applications) is one important feature. However, this cannot explain all problems of the application of rules on State responsibility to the echr. On the other hand, the Articles on State Responsibility operate on the assumption that they fully apply in the human rights context as the relevant secondary rules on State responsibility. The practice of the ECtHR sits somewhere between these two positions.56 Crawford, former member of the ilc and its Special Rapporteur on the topic of State Responsibility, has identified certain trends in the case-​law of the ECtHR. These concern mainly attribution of conduct to States (or to international organizations), the broad interpretation 53 54 55 56

See Article 34 of the 1969 Vienna Convention on the Law of Treaties: “A treaty does not create either obligations or rights for a third State without its consent”. Malcolm Evans “State Responsibility and the ECHR” in Malgosia Fitzmaurice and Dan Sarooshi (eds.) Issues of State Responsibility before International Judicial Institutions (Hart, 2004) 157, at 159. Melanie Fink “The European Court of Human Rights and State Responsibility” in Christina Binder and Konrad Lachmayer (eds.) The European Court of Human Rights and Public International Law: Fragmentation or Unity, (Nomos, 2014)93, at 93. Anne van Aaken, Iulia Motoc & Johann Justus Vasel “Introduction” in Anne van Aaken and Iulia Motoc (eds.) The European Convention on Human Rights and General International Law (Oxford, 2018) 1, at 14–​15.

316 Šturma of many echr rights as giving rise to positive obligations of the State, and the somehow blurred relationship between attribution and jurisdiction in cases involving extraterritorial acts.57 However, little has been said about the possible effect erga omnes or erga omnes partes of State responsibility under the echr. The issue cannot be dissociated from the implementation of State responsibility through the procedures before the ECtHR. Concerning inter-​state applications under Article 33 of the echr, “any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party”. This possibility confirms the assumption that the violation of the echr may give rise to State responsibility consequences erga omnes partes, even though States parties availed themselves of that possibility (actio popularis) in only a few cases.58 In other cases, States were driven by the protection of their nationals or other political motivation. The situation looks different when it comes to individual applications under Articles 34 and 35 of the echr. They are subject to numerous conditions of admissibility. In particular, the applicant has to prove his or her status as a victim of a violation of rights under the Convention. Therefore, it is not possible to speak about a kind of actio popularis. Moreover, the responsibility of a State party to the echr is triggered by any breach, not only by serious breaches. This is a difference from Articles 40 and 41 of the arsiwa that deal with serious breaches of obligations under peremptory norms of general international law.59 At the same time, the parties to the echr are not under the obligation to “cooperate to bring to an end through lawful means any serious breach” as required under Article 41(1) of the Articles on State Responsibility. They only may, if they decide to do so, refer to the Court any alleged breach of the provisions of the echr. To conclude, the echr system of Convention responsibility presents an extremely interesting example of a special regime of collective implementation and enforcement of responsibility for human rights breaches. It casts some similarities and some differences in respect of general rules on State

57 58 59

James Crawford & Amelia Keene “The Structure of State Responsibility under the European Convention on Human Rights” in van Aaken and Motoc (above note 56), at 178–​179. See, in particular, Denmark, Norway, Sweden & the Netherlands v. Greece, European Commission of Huamn Rights, 5 November 1969. Compare Art 40(2) of the Articles on State Responsibility: “A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation”.

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responsibility. Nevertheless, even if it confirms the character of obligations erga omnes partes, it is a treaty-​based system. The Convention as a whole, taking into account its substantive law and procedure, does not present the obligations erga omnes, as known in general international law, and even less the norms of jus cogens. Obviously, this is without prejudice to the peremptory nature of some human rights that are also included in the echr. 5

Conclusions

The doctrinal debate on the issue of regional jus cogens is not of recent vintage. In fact, it started already in the 1960s, even prior to the adoption of the vclt and its Article 53. Three different approaches to the possibility of regional peremptory norms can be discerned from academic writings on the subject. The first one is based predominantly on the logical and formalistic arguments that view jus cogens as a mere legal technique rather than norms that reflect and protect fundamental values of the international community. The second approach admits a theoretical possibility of a regional jus cogens on the basis of values prevailing in regional groups. The third one is represented by the authors who join the theory of regional jus cogens with certain substantive norms, mostly regional systems of human rights protection. Last but not the least, the debate on the regional jus cogens may be burdened by some historical, clearly outdated concepts, such as the “socialist international law”. The present contribution, bearing on the knowledge of the past and the writings in languages of the countries of the former “Eastern bloc”, explains some misleading connections to the issue of regional jus cogens. From the modern perspective, the most plausible arguments in favour of a regional, European jus cogens are based on the example of the European Convention on Human Rights. There are no doubts about the importance of that regional system of human rights protection. Neither is it questioned that the ECtHR called the Convention a document of “European public order”. However, this term, as well as the notions of obligations erga omnes or non-​ derogable human rights, are rather “false friends”.60 This means that are sometimes used as the alleged synonyms of jus cogens but they are different concepts. The contribution has first analyzed the effects of the provisions of the echr in the law of treaties, namely the regime of reservations and the derogation 60

See Sýkorová (above note 27), at 88–​92.

318 Šturma clauses. Next, it has focused on some effects of the echr beyond the law of treaties, in particular the character of obligations erga omnes partes and the regime of responsibility under the Convention. While admitting the special role of the echr for the establishment of the effective system of human rights protection in Europe and the peremptory nature of some rights, the contribution concludes that the echr as a whole is not an example of regional jus cogens.

Chapter 12

The Treatment of Peremptory Norms of General International Law (Jus Cogens) in the Inter-American Human Rights System Juan José Ruda Santolaria 1

General Aspects

The present chapter aims to provide an approach to the way in which peremptory norms of general international law jus cogens1 have been addressed in the Inter-​American Human Rights System. In that sense, it is important to situate the jus cogens within the relevant context of the Inter-​American System and to understand how the latter works. To that end, in this section some general aspects are presented in a succinct manner. The guiding philosophy of the Inter-​American Human Rights System can be traced back to the 1948 American Declaration of the Rights and Duties of Man (“the American Declaration”),2 which preceded the Universal Declaration of Human Rights by a few months. This instrument and especially the American Convention on Human Rights of 1969,3 also known as the Pact of San José (“the American Convention” or “the Pact of San José”), constitute the legal basis of the Inter-​American system. The American Declaration is applicable to all member States of the Organization of American States (“oas” or “the Organization”), while the Pact of San José is a treaty to which twenty-​four out of 35 member States of oas are parties.

1 In accordance with Article 53 of the 1969 Vienna Convention on the Law of Treaties, a peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole, as one from which non derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The text of the draft conclusions on peremptory norms of general international law (jus cogens) adopted by the UN International Law Commission on first reading in 2019 sets forth a similar definition in its draft conclusion 2 of the Draft Conclusions on Peremptory Norms of General International Law ( Jus Cogens), Report of the International Law, Seventy-​First Session, (A/​74/​10) (2019), Chapter v. 2 1948 American Declaration of the Rights and Duties of Man. 3 1969 American Convention on Human Rights.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_013

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The Inter-​American Commission on Human Rights (“the Inter-​American Commission”, or “the Commission”) established in 1959, has its headquarters in Washington D.C. and constitutes, in accordance with Article 106 of the oas Charter, the organization’s consultative organ on human rights. Its primary role is to promote the observance and advocacy thereof.4 Article 33 of the Pact of San José establishes the Inter-​American Commission and the Inter-​American Court of Human Rights (“the Court” or “the Inter-​ American Court”) as the competent bodies with respect to matters relating to the fulfillment of the rights set forth therein. The Inter-​American Court itself was constituted in 1979 following the entry into force of the American Convention. The Inter-​American Commission represents all oas members and is composed of seven individuals of high moral character and recognized expertise in the human rights field, elected by the organization’s General Assembly for a period of four years, with the possibility of a one-​time re-​election.5 Any person, group of persons, or non-​governmental entity recognized in one or more oas member States may submit to the Commission petitions containing denunciations or complaints of violation of the Convention by a State Party.6 Moreover, the Commission may make recommendations or reports. The Inter-​American Court has its seat in San José, Costa Rica, and is composed of seven judges, nationals of oas member States, who are elected for a period of six years, that may be extended only once by the States Parties to the Convention at the oas General Assembly.7 Only States parties to the American Convention and the Commission8 may submit cases to the Court, with the particularity that the proceedings before the Commission must first be exhausted. In turn, when depositing the instrument of ratification or accession to the Treaty or at any time thereafter, States Parties to the Convention may declare that they recognize the jurisdiction of the Court as binding, in its own right and without the need for a special agreement, over cases concerning the interpretation or application of the Convention. Such declaration is 4 With regard to the object of the Commission and its competences, it is important to highlight the provisions of Articles 1, and 18 to 20 of the Statute of the Inter-​American Commission. 5 See Arts 34 to 37 of the American Convention. 6 Id., Art. 44. 7 Id., Arts. 52 to 54. 8 Id., Art. 61. Furthermore, Articles 35 and 36 of the Rules of Procedure of the Inter-​American Court of Human Rights establish the conditions to submit a case to the Court by the Commission and the States, respectively. Notwithstanding this, over the course of time it has been the Commission that, in practice, has submitted to the jurisdiction of the Court the cases where it has issued its pronouncements in the exercise of its contentious competence.

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submitted to the oas Secretary-​General, who transmits it to the other member States of the Organization and to the Secretary of the Court, and it may be made unconditionally or on condition of reciprocity, for a determined period or specific cases.9 Furthermore, pursuant Article 64(1) of the American Convention, oas members States may consult the Inter-​American Court regarding the interpretation of the Convention or other treaties concerning the protection of human rights in American States. Similarly, according to paragraph 2 of the same Article, at the request of a member State of the Organization, the Court may give opinions on the compatibility of any of its domestic laws with those international instruments. The advisory competence of the Inter-​American Court is of greater scope than that of the International Court of Justice or the European Court of Human Rights, given that its interpretative capacity is not limited to the 1969 American Convention, but also covers other treaties, including those of a universal nature adopted within the framework of the United Nations, provided that they are related to the protection of human rights. The competence applies even if the content of the treaty in question is not solely focused on the subject of human rights.10 This is because, despite the fact that those treaties were not concluded within the Inter-​American system the Court interprets their scope for the purpose of their application by American States.11 It should also be noted that, in accordance with the Advisory Opinion OC-​10/​ 89 of 14 July 1989, the Inter-​American Court’s interpretative capacity extends to other international instruments such as the 1948 American Declaration, given that, although not being a treaty, it is “a source of international obligations”.12 With the above in mind, the following sections will make reference to some of the most relevant pronouncements of the Commission and the Court on peremptory norms of general international law “jus cogens”, with an emphasis on how the Court has addressed these norms. In the next section, the Commission’s approach is considered through the lens of the prohibition against the execution of minors. Then, Section 3, on the pronouncements of 9 Id., Art. 62. 10 See “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), Advisory Opinion OC-​1/​82 of the Inter-​American Court of Human Rights, 24 September 1982, at para. 34. 11 Id., paras. 34, 35, 37 -​41, 48, 50 and 51. 12 See in this regard Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-​10/​89 of the Inter-​American Court of Human Rights, 14 July 1989, at paras. 35, 37, 42 -​44 and 47.

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the Court, provides a landscape overview of some of the Court’s judgments and advisory opinions on jus cogens. 2

Illustration of the Commission’s Approach: Execution of Minors

A case that is emblematic of the approach of the Inter-​American Commission to matters of jus cogens arose in relation to the United States of America, concerning the application of the death penalty to James Terry Roach and Jay Pinkerton, both convicted of crimes committed when they were seventeen years old (in the case of Roach, the rape and murder of a fourteen-​year-​old girl and murder of her seventeen-​year-​old boyfriend, and, in the case of Pinkerton, attempted rape and murder).13 In its report on the Roach and Pinkerton case, the Commission based its opinion on jus cogens, which had not been invoked by the petitioners. According to the Commission, jus cogens “is derived from ancient law concepts of a ‘superior order’ of legal norms, which the laws of man or nations may not contravene”. It noted that jus cogens norms “have been described by publicists as comprising ‘international public policy.’ ”14 Moreover, the Commission stated in its reasoning that: … in the member States of the OAS there is recognized a norm of jus cogens which prohibits the State execution of children. This norm is accepted by all the States of the inter-​American system, including the United States. The response of the U.S. Government to the petition in this case affirms that “[A]‌ll states, moreover, have juvenile justice systems; none permits its juvenile courts to impose the death penalty.”15 The Commission adopted its report by a majority of five votes to one, holding that there was a peremptory norm of general international law (jus cogens) prohibiting the execution of minors and which was binding on the United States, but with the caveat that there was no consensus among States that the age of majority was 18.16

13 See Roach and Pinkerton, Communication of the Inter-​American Commission of Human Rights, 22 September 1987, at paras. 1, 3 and 4. 14 Id., para. 55. 15 Id., para. 56. See James L. Cavallaro, Claret Vargas, Clara Sandoval and Bernard Duhaine (eds.) Doctrine, Practice, and Advocacy in the Inter-​American Human Rights System (Oxford, 2019), at 631. 16 See Roach and Pinkerton (above note 13), at para. 57.

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Only the Colombian member of the Commission, the jurist Marco Gerardo Monroy Cabra, voted against it, stating that, although human rights standards are jus cogens, the prohibition of the death penalty and its application to persons under the age of 18 was not, given that it is not a norm accepted by the “international community as a whole”. He argued that at the time only nineteen American States were parties to the Pact of San José –​Article 4(5) of which prohibits the death penalty for persons under the age of 18 –​and pointed out that reservations had been made concerning the death penalty, and that its prohibition and the prohibition against applying it to minors was not a norm accepted by all American States, nor by other States of the world, despite a trend towards its abolition.17 With regard to the view expressed by Monroy, as other authors have done before when addressing the topic, it is important to clarify a substantive issue, namely that not all human rights standards are jus cogens. It is only those human rights norms that are accepted by the international community of States as a whole as norms from which no derogation is permitted that can be deemed jus cogens.18 In the same vein, a key aspect to highlight, and which reflects the point made by Monroy, concerns the impossibility of the recognition of an “American jus cogens” or an “African jus cogens”, since a peremptory norm of general international law (jus cogens) should be accepted by the international community of States as a whole in accordance with Article 53 of the Vienna Convention on the Law of Treaties.19 I am in agreement with Monroy regarding the absence of a “regional jus cogens”. Indeed, as I pointed out in 2017, in my capacity as member of the UN International Law Commission, in the debate on the second report of the Special Rapporteur on the existence or not of regional jus cogens,20 jus cogens norms reflect the values or interests that are fundamental to the international community and are of a superior nature since no derogation from them is permitted.21 Similarly, in 2019, I had the opportunity to address this issue in my comments to the Special Rapporteur’s fourth report,22 expressing 17

See Dissenting Opinion of Gerardo Monroy in Roach and Pinkerton (above note 13), at section 4; Florabel Quispe Remón “Ius Cogens en el sistema interamericano: Su relación con el debido proceso” (2010) 34 Revista de Derecho 42, at 55. 18 Quispe Remón (above note 17). 19 See Dissenting Opinion of Monroy in Roach and Pinkerton (above note 13), at section 4. 20 Second Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​706) (2017). 21 A/​ c n.4/​s r.3372, at 13–​14. See also the Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 1). 22 Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019).

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my agreement on the difficulty of reconciling the notion of regional jus cogens with the universality of jus cogens.23 This is because jus cogens is universal by its very nature and refers to peremptory norms of general international law that are accepted and recognized by the international community of States as a whole. At the same time, they are norms of such importance that, due to their character of jus cogens, are non-​derogable and imperative without consent. It is precisely for these reasons that it is not possible to invoke the figure of the persistent objector in relation to them, nor to exclude its application by claiming not to have intervened in its formation process when they have a customary basis.24 In this regard, on the basis of what Professor Tladi states in his fourth report, it is pertinent to highlight that State practice reflects a concept of jus cogens that is based on the hierarchy of norms and aims at safeguarding, through primacy, a common core of universal values.25 As I emphasized in my remarks at the time, rather than the existence of a regional jus cogens, it is appropriate to speak of rules having a special status for a region or a group of States,26 or that are considered to be particularly important by those who are part of such region or group.27 This higher status within a region, however, does not turn them into jus cogens norms.28 Notwithstanding this, it should be recognized that a jus cogens rule may well have its origins in a process initiated in a particular region of the world. Fifteen years after Roach and Pinkerton, the Commission had to deal with the case of Michael Domingues. Michael Domingues had been convicted and sentenced to death in the United States on account of two murders committed when he was 16. In that case, the Commission stated that, during the period of time that had elapsed since its report on the Roach and Pinkerton case, the prohibition of the application of the death penalty to persons who were under 18 years old at the time of the commission of the offences had been consolidated as a peremptory norm of general international law jus cogens, i.e. applicable beyond the Americas.29 In this context, the Commission made the following observation: 23 A/​ c n.4/​s r.3462, at 17. 24 See paragraph 3 of the Draft Conclusion 14 of the Draft Conclusions on Peremptory Norms (above note 1). 25 See Fourth Tladi Report (above note 22), at para. 23. 26 A/​ c n.4/​s r.3462, at 17. 27 Ibid. 28 Ibid. 29 See Michael Domingues (Merits), Communication of the Inter-​American Commission on Human Rights, 22 October 2002, at paras. 40 -​45; See also Inter-​American Commission on Human Rights. The Death Penalty in the Inter-​American Human Rights System: from

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It has been said that the principal distinguishing feature of these norms is their “relative indelibility”, in that they constitute rules of customary law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect (…) Norms of jus cogens (…) derive their status from fundamental values held by the international community, as violations of such peremptory norms are considered to shock the conscience of humankind and therefore bind the international community as a whole, irrespective of protest, recognition or acquiescence. Commonly cited examples of rules of customary law that have attained the status of jus cogens norms include genocide, slavery, forced disappearances and torture or other cruel, inhuman or degrading treatment or punishment. It has been suggested that a reliable starting point in identifying those international legal proscriptions that have achieved jus cogens status is the list of rights that international human rights treaties render non-​derogable. 50. Therefore, while based on the same evidentiary sources as a norm of customary international law, the standard for determining a principle of jus cogens is more rigorous, requiring evidence of recognition of the indelibility of the norm by the international community as a whole.30 The Inter-​American Commission, in Michael Domingues, also underlined that the acceptance and recognition of peremptory norms of general international law jus cogens concern the “international community as a whole”, which can occur when there is acceptance and recognition by a very large majority of States, even if over dissent by a small number of States.31 As part of the developments since the Roach and Pinkerton case, which reinforced the existence of a jus cogens norm, the Commission noted that almost all States have expressed their rejection of the imposition of the death penalty on persons under the age of 18 when ratifying the International Covenant on Civil and Political Rights, the United Nations Convention on the Rights of the Child and the Pact of San José. In each of these treaties, the rule prohibiting the imposition of the death penalty against persons under the age of 18 is a

30 31

Restrictions to Abolition (Organization of American States, 2011), at 75 and ff; Cavallaro (above note 15), at 631; Claudio Grossman “Inter-​American Commission on Human Rights” (2011) Max Planck Encyclopedias of International Law; Quispe Remón (above note 17), at 56–​57. Michael Domingues (above note 29), at paras. 49 and 50. Id., at para. 50. See also paragraph 2 of the Draft Conclusion 7 of the Draft Conclusions on Peremptory Norms (above note 1).

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non-​derogable rule. The Commission noted that, with regard to the United States, it had ratified the Fourth Geneva Convention of 1949 without reservations and that a Federal norm has set the age of 18 for imposing the capital punishment.32 Moreover, the Commission emphasized that as norm of jus cogens, the prohibition binds the community of States as a whole, including the United States, and cannot be derogated from by a treaty nor objected to, whether persistently or not.33 In addition, the Commission put forward the view that if an international instrument is widely ratified or endorsed, the provisions of such an instrument may be considered evidence of opinio juris.34 This is especially relevant in the case of human rights treaties that recognize existing rights on the basis of human attributes that cannot be derogated from by any State. Under the framework of these instruments, States are subject to a legal order whereby, for the sake of the common good, they assume obligations towards all persons under their jurisdiction and not towards other States.35 These considerations regarding the existence of a peremptory norm of general international law (jus cogens) prohibiting the application of the death penalty to persons who were under the age of 18 at the time of the commission of the crimes were similarly present in the subsequent decisions of the Inter-​American Commission in cases against the United States such as the Gary Graham/​Shaka Sankofa case, Douglas Christopher Thomas case, and Napoleon Beazley case.36 The case of Toronto Markkey Patterson against the United States, of 7 March 2005, is particularly illustrative of the Commission’s approach towards the prohibition against the execution of persons under the age of 18 at the time of committing their crimes.37 In that decision, the Commission emphasized developments in the period between the Roach and Pinkerton and Domingues decisions,

32

Id., at para. 85. For further information on other norms involved in the interpretation of the rights of the Child see Inter-​American Commission Rapporteurship on the Rights of the Child Juvenile Justice and Human Rights in the Americas (Organization of American States, 2011) (oea/​Ser.L/​v /​i i, Doc. 78), at paras. 15, 16, 18, 20, 361 and 362; Cavallaro (above note 15), at 632; Gerald Neuman “Import, Export, and Regional Consent in the Inter-​ American Court of Human Rights” (2008) 19 European Journal of International Law 101, at 114. 33 See Michael Domingues (above note 29), at para. 85. 34 Id., at para. 107. 35 Ibid. 36 See for discussion of these cases Cavallaro (above note 15), at 632. 37 Toronto Markkey Patterson, Communication of the Inter-​American Commission Human Rights, 7 March 2005.

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particularly the ratification of treaties, United Nations resolutions, as well as internal rules and practices of States, including the United States.38 3

Relevant Pronouncements of the Inter-​American Court of Human Rights

The Inter-​American Court has issued pronouncements referring to peremptory norms of general international law (jus cogens) in the exercise of both its contentious and advisory jurisdiction. The Court’s decision in the case of Aloeboetoe et al. v. Suriname provides the first example of a decision in contentious proceedings.39 In that case, the Inter-​American Court resorted to “jus cogens superveniens” with regard to a treaty dated 19 September 1762, by which the Netherlands recognized the local authority of the Saramakas tribe. That treaty had been invoked by the Inter-​ American Commission as a basis for the internal autonomy, that is to say, the capacity of the Saramakas to be governed by their own laws, and which, in the Commission’s view, was applicable to Suriname by succession.40 In response, however, the Court was crystal clear concerning the effect of jus cogens on treaties: The Court does not deem it necessary to investigate whether or not that agreement is an international treaty. Suffice it to say that even if that were the case, the treaty would today be null and void because it contradicts the norms of jus cogens superveniens. In point of fact, under that treaty the Saramakas undertake to, among other things, capture any slaves that have deserted, take them prisoner and return them to the Governor of Suriname, who will pay from 10 to 50 florins per slave, depending on the distance of the place where they were apprehended. Another article empowers the Saramakas to sell to the Dutch any other prisoners they might take, as slaves. No treaty of that nature may be invoked before an international human rights tribunal.41 38

39 40 41

Id., at para. 45 -​47. Prominent among such UN resolutions is the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”) UN General Assembly Resolution 40/​33 (A/​r es/​40/​33) (1985), Annex, Principle 17.2: “Capital punishment shall not be imposed for any crime committed by juveniles”. Case of Aloeboetoe et al v. Suriname (Reparations and Costs), Judgment of the Inter-​ American Court of Human Rights, 10 September 1993. Id., at para. 56. Id., at para. 57.

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A particularly important example of an Advisory Opinion in which the Court addressed jus cogens is the Juridical Condition and Rights of Undocumented Migrants.42 In that Advisory Opinion, the Court stressed that the application of jus cogens is not limited to the law of treaties, but also covers general international law and extends to all legal acts. The Court noted that it was for this reason that jus cogens manifests itself in the law of international responsibility of States and influences the foundations of the international legal order.43 The Juridical Condition and Rights of Undocumented Migrants Advisory Opinion concerned discrimination and, in that context, the Court emphasized the obligation of all States to respect and guarantee human rights without discrimination. According to the Court, this is inextricably linked to the right to equal protection before the law which, in turn, arises “directly from the oneness of the human family and is linked to the essential dignity of the individual “.44 With that in mind, the Court considered that: … the principle of equality before the law, equal protection before the law and non-​discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws. Nowadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable. This principle (equality and non-​discrimination) forms part of general international law. At the existing stage of the development of international law, the fundamental principle of equality and non-​discrimination has entered the realm of jus cogens.45 Consequently, the Inter-​American Court pointed out that failure to comply with the obligations arising from the principle of equality and non-​discrimination leads to international responsibility for the wrongdoing State, and that the obligation to respect and ensure the exercise of rights is erga omnes. Such an obligation is imposed on all States, for the benefit of human beings under their 42 43 44 45

Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-​18/​03 of the Inter-​American Court of Human Rights, 17 September 2003. Id., at paras. 98 and 99. Id., at para. 100. Id., at para. 101.

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jurisdiction and regardless of the migratory status or condition of protected persons.46 The Court unanimously concluded: That the fundamental principle of equality and non-​discrimination forms part of general international law, because it is applicable to all States, regardless of whether or not they are a party to a specific international treaty. At the current stage of the development of international law, the fundamental principle of equality and non-​discrimination has entered the domain of jus cogens.47 Judge António Augusto Cançado Trindade, in his concurring opinion, provides further detail and precision to the notion that a rule of jus cogens carries with it obligations of an erga omnes character. He clarifies, however, that this principle does not operate the other way round, i.e. that not all obligations erga omnes are jus cogens in nature: By definition, all the norms of jus cogens generate necessarily obligations erga omnes. While jus cogens is a concept of material law, the obligations erga omnes refer to the structure of their performance on the part of all the entities and all the individuals bound by them. In their turn, not all the obligations erga omnes necessarily refer to norms of jus cogens.48 In addition, Judge Sergio García Ramírez emphasized –​in his reasoned concurring opinion –​the actions that every State must take in practice in order not to incur in international responsibility for the breach of the duties deriving from the jus cogens nature of the principle of equality and non-​discrimination. More precisely, he stated that Taking into consideration the characteristics of the general obligations of States under general international law and international human rights law, specifically, with regard to these extremes of jus cogens, States must develop, as stated in OC-​18/​2003, specific actions of three mutually complementary types: a) they must ensure, by legislative and other measures –​in other words, in every sector of State attributes and functions –​the effective (and not only nominal) exercise of the human rights of workers on an equal footing and without any discrimination; b) they 46 47 48

Id., at paras. 106 -​110. Id., at para. 113. Id., Concurring Opinion of Judge Cançado Trindade, at para. 80.

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must eliminate provisions, whatever their scope and extent, that lead to undue inequality or discrimination; and c) lastly, they must combat public or private practices that have this same consequence. Only then, can it be said that a State complies with its obligations of jus cogens in this area, which, as we have said, does not depend on the State being a party to a specific international convention; and only then would the State be protected from international responsibility arising from non-​compliance with international obligations.49 The jus cogens nature of the principle of equality and non-​discrimination was also confirmed by the Court in its Advisory Opinion on Gender Identity, and Equality and Non-​Discrimination of Same-​Sex Couples, where the Court reaffirmed that the notion of equality derives from human nature itself and that it is inseparable from the dignity of the person: The Court has asserted that the notion of equality emanates directly from the oneness of the nature of humankind and is indissociable of the essential dignity of the individual. Thus, any situation is incompatible with this that, considering a specific group to be superior, gives it privileged treatment or, inversely, considering it inferior, treats it with hostility or otherwise subjects it to discrimination in the enjoyment of rights that are accorded to others not so classified. States must refrain from taking actions that are directly or indirectly aimed at creating situations of de jure or de facto discrimination. The Court’s jurisprudence has also indicated that at the current stage of evolution of international law, the fundamental principle of equality and non-​discrimination has entered the domain of ius cogens. The whole legal structure of national and international public order rests on this premise and it permeates every legal system.50 The Inter-​American Court has also ruled on the jus cogens nature of certain norms in the exercise of its contentious jurisdiction. In that sense, the Court’s

49 50

Id., Separate Concurring Opinion of Judge Sergio García Ramírez, at para. 26. Gender Identity, and Equality and Non-​ Discrimination of Same-​ Sex Couples: State Obligations in Relation to Change of Name, Gender Identity, and Rights deriving from a Relationship between Same-​Sex Couples (Interpretation and Scope of Articles 1(1), 3, 7, 11(2), 13, 17, 18 and 24, in relation to Article 1, of the American Convention on Human Rights), Advisory Opinion OC-​24/​17 of the Inter-​American Court of Human Rights, 24 November 2017, at para. 61.

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jurisprudence has been consistent on the peremptory character of the prohibition of torture. An example in this regard is the case Baldeón García v. Peru, wherein the Court stated as follows: This Court has asserted that torture and cruel, inhuman, or degrading punishment or treatment are strictly forbidden by International Human Rights Law. The absolute prohibition against torture, whether physical or psychological, is now part of the international jus cogens. Said prohibition applies even under the most difficult circumstances, such as war, threat of war, fight against terrorism and other crimes, curfew or state of emergency, domestic upheaval or conflict, suspension of constitutional guarantees, domestic political unrest or other public calamities or emergencies.51 The case regarding Miguel Castro Prison v. Peru also concerned the jus cogens character of the prohibition of torture.52 In that case, the Inter-​American Court referred to the absolute prohibition of torture, whether physical or psychological, as a norm of jus cogens. It emphasized that such acts constituted crimes against humanity and that, considering the jus cogens character of the prohibition of crimes against humanity, the State had a duty to avoid impunity. Specifically, the Court used the following terms: … torture and cruel, inhuman or degrading punishment or treatment are strictly prohibited by international human rights law. The absolute prohibition of torture, both physical and mental, is currently part of the international jus cogens. Said prohibition subsists even under the most difficult circumstances, such as war, threat of war, the fight against terrorism and any other crimes, martial law or a state of emergency, civil commotion or conflict, suspension of constitutional guarantees, internal political instability or other public emergencies or catastrophes.53 Against this backdrop, the Court concluded that

51 52 53

Case of Baldeón García v. Peru (Merits, Reparations and Costs), Judgment of the Inter-​ American Court of Human Rights, 6 April 2006, at para. 117. Case of the Miguel Castro Castro Prison v. Peru (Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 25 November 2006. Id., at para. 271.

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… there is evidence to state that the deaths and tortures committed against the victims of this case by state agents, for the reasons mentioned in the previous paragraphs constitute crimes against humanity. The prohibition to commit these crimes is a norm of the ius cogens, and, therefore, the State has the obligation to not leave these crimes unpunished and therefore it must use the national and international means, instruments, and mechanisms for the effective prosecution of said behaviors and the punishment of their perpetrators, in order to prevent them and avoid that they remain unpunished.54 The Inter-​American Court stated that when the facts of the case happened, in May 1992, murder and torture, in the context of widespread or systematic attack against sectors of the population, constituted crimes against humanity that violated a peremptory norm of general international law. Consequently, the Court held that there was an obligation to penalize such crimes under general international law.55 Similarly, the Torres Millacura and others v. Argentina concerned the prohibition of torture.56 In that case, the Court noted that the American Convention expressly recognized the right to personal integrity, on the basis of which torture, whether physical or psychological, as well as cruel, inhuman or degrading treatment or punishment, were absolutely prohibited. Such a prohibition was, in the view of the Court, jus cogens. For that reason, the right to personal integrity could not be suspended under any circumstance.57 Also worth mentioning is the case of Goiburú et al v. Paraguay, concerning the prohibition of enforced disappearance of persons, together with the corresponding duty to investigate and punish those responsible.58 In particular, the Court considered whether these rules have attained the character of jus cogens. In determining the international responsibility of Paraguay in the case, the Court referred to the fact that the prohibition of torture and enforced disappearance of persons, which are both jus cogens, were carried out with the collaboration of other States of the continent –​within the framework of the so-​called “Operation Condor”. Based on the “doctrine of national security”, this

54 55 56 57 58

Id., at paras. 404. Id., at para. 402. Case of Torres Millacura et al v. Argentina (Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 26 August 2011. Id., at para. 83. Case of Goiburú et al. v. Paraguay (Merits, Reparations and Costs), Judgment of the Inter-​ American Court of Human Rights, 22 September 2006, at para. 84.

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operation gave rise in the 1970s to the cooperation between the then existing dictatorial regimes in South America in various acts of repression against their opponents, which included the physical disappearance of these oponents. and caused a partial impunity by failing to fully comply with the obligation to investigate them.59 In this regard, the Court highlighted that the violation of these non-​derogable norms of general international law (jus cogens) affects transcendental values or goods of the international community. Consequently, and recognizing the duty to try those responsible under customary and conventional international law, it was necessary to activate mechanisms, at the national and international levels, to effectively prosecute such conduct and punish those responsible, with a view to preventing its recurrence and avoiding impunity. The Court emphasized the fact that events took place in a context of systematic human rights violations, and that they represented crimes against humanity, which accordingly trigger the States’ obligation to prosecute and punish the perpetrators of such conducts.60 In such scenario of systematic violation of human rights, the Inter-​American Court determined that access to justice is a peremptory norm of general international law, and consequently renders cooperation among States essential to eradicate impunity. In the words of the Court, Impunity will not be eliminated unless it is accompanied by the determination of the general responsibility (of the State) and the specific criminal responsibility (of its agents or of individuals), which are complementary. Access to justice is a peremptory norm of international law and, as such, gives rise to obligations erga omnes for the States to adopt all necessary measures to ensure that such violations do not remain unpunished, either by exercising their jurisdiction to apply their domestic law and international law to prosecute and, when applicable, punish those responsible, or by collaborating with other States that do so or attempt to do so.61 The Court’s view, that the prohibition of enforced disappearance as well as the corresponding duty to investigate and punish were jus cogens, expounded in the Goiburú case, was reiterated in the case of La Cantuta v. Peru.62 In turn, the 59 60 61 62

Id., at para. 93. Id., at para. 128. Id., at para. 131. Case of La Cantuta v. Peru (Merits, Reparations and Costs), Judgment of the Inter-​ American Court of Human Rights, 29 November 2006.

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Court also confirmed that the access to justice is a peremptory norm of general international law, and that to eradicate impunity, there is an erga omnes obligation to adopt all the necessary measures to prevent such violations from going unpunished and to cooperate with other States aiming in that direction.63 Furthermore, the Court highlighted the non-​application of prescription in relation to these crimes as well the impermissibility of evading justice through the application of amnesty laws and other tools to prevent accountability. In particular, the Court stressed that: … the acts committed in La Cantuta to the detriment of the victims of extra-​legal execution or forced disappearance, are crimes against humanity that cannot go unpunished, are non-​extinguishable and cannot be the subject-​matter of amnesty.64 The Court proceeded to explain further as follows … The State may not rely upon any domestic law or regulation to justify its failure to comply with the Court’s order to investigate and, if appropriate, criminally punish the parties responsible for the La Cantuta events. Particularly, as has been the case ever since the Court’s judgment in the case of Barrios Altos v. Perú, the State may never apply amnesty laws –​ which will produce no effects in the future (…), raise the statute of limitations, non-​ex post facto nature of criminal laws or res judicata defenses, or rely upon the principle of double jeopardy (…), or resort to any other similar measure designed to eliminate responsibility in order to escape its duty to investigate and punish those responsible. Accordingly, as the case may be, the relevant investigations need to be opened against all parties investigated, convicted, or acquitted or whose cases were dismissed, in a military criminal proceeding.65 In the case of Gelman v. Uruguay, the Inter-​American Court reiterated that forced disappearance of persons entails a manifest abandonment of the essential principles of the Inter-​American Human Rights System and that its prohibition is jus cogens.66 In this particular case, the Court stressed not only 63 64 65 66

Id., at paras. 157 and 160. Id., at para. 225. Id., at para. 226. Case Gelman v. Uruguay (Merits and Reparations), Judgment of the Inter-​American Court of Human Rights, 24 February 2011, at para. 75.

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that enforced disappearance involved the violation of a norm of jus cogens, but also that it was particularly serious because it occurred as part of a systematic practice of “State terrorism” at an inter-​State level.67 Flowing from this, the Court stressed the State’s obligation to investigate and punish human rights violations, and specifically to prosecute and punish those responsible. This is of special relevance given the gravity of the crimes and the rights affected and, in particular, the jus cogens nature of the prohibition of enforced disappearance of persons and its corresponding duty to investigate and punish those responsible.68 The case of Almonacid-​Arellano et al v. Chile concerned a different norm, the prohibition of crimes against humanity.69 As with enforced disappearance, the Court recalled that such crimes were imprescriptible and could not be subject to amnesty.70 The Court emphasized that crimes against humanity offend humanity as a whole, and the damage they cause impacts national society and the international community, necessitating the investigation of those crimes and the punishment of those responsible.71 The Court stressed that non-​ applicability of prescription to crimes against humanity does not arise from a treaty, which only recognizes the rule, but rather it is in itself a norm of general international law (jus cogens). Consequently, a State cannot fail to comply with this peremptory norm.72 The prohibition of crimes against humanity was also at issue in the recent case of Herzog et al v. Brazil.73 Again the Court recalled that the prohibition of crimes against humanity is a peremptory norm of international law (jus cogens).74 In line with that, the Court concluded in that case that, … the acts perpetrated against Vladimir Herzog should be considered a crime against humanity, as this has been defined by international law since 1945, at least (…). Also, as indicated in the judgment in the case of Almonacid Arellano, at the time of the relevant facts of the case (October 67 68 69 70 71 72 73 74

Id., at para. 99. Id., at para. 183. Case of Almonacid Arellano et al v. Chile. Preliminary Objections (Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 26 September 2006, at para. 152. Ibid. Id., at para. 152. Id., at para. 153. Case of Herzog et al v. Brazil (Preliminary Objections, Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 15 March 2018. Id., at para. 230.

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25, 1975), the prohibition of crimes under international law and crimes against humanity had achieved the status of a peremptory norm of international law (jus cogens), which imposed on the State of Brazil and, indeed, on the whole international community, the obligation to investigate, prosecute and punish those responsible for such conducts, because they constitute a threat to the peace and security of the international community (…)75 Particularly relevant is that the Inter-​American Court stressed that the peremptory norm prohibiting crimes against humanity existed and was binding for the State where the acts occurred, and when they took place. In addition, the Court recalled a second consequence of a peremptory norm, namely that it entails obligations erga omnes, and that States must therefore ensure that such conduct is prosecuted and that those responsible are punished. In this context, the Court asserted that the lack of formal definition in the domestic legal system of conduct amounting to crimes against humanity does not excuse the perpetrator of crimes against humanity from responsibility under international law and universal jurisdiction.76 This is because, as the Court pointed out, a crime against humanity is not a type of crime in itself, but a qualification of criminal conducts that were already established in different legal systems, such as torture and murder/​homicide.77 Furthermore, classifying conduct as a crime against humanity precludes the application of procedural rules exempting responsibility owing to the jus cogens nature of the prohibition of such conducts. In that sense, the Court has stressed that, in the case of crimes against humanity under international law, the international element refers to the planned, massive or systematic nature of the attack on the civilian population, which in turn justifies the prohibition to apply any exclusion of responsibility.78 In Hacienda Brasil Verde Workers v. Brazil, the Inter-​ American Court emphatically stated that slavery was a crime under international law and that the prohibition of slavery had the status of jus cogens.79 Consistent with its jurisprudence on jus cogens, the Court determined that prescription could not

75 76 77 78 79

Id., at para. 242. Id., at para. 259. Id., at para. 308. Ibid. Case of the Hacienda Brasil Verde Workers v. Brazil (Preliminary Objections, Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 20 October 2016, para. 412.

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be invoked to evade the obligation to investigate and punish such crimes.80 In particular, the Court made the following observation: Regarding the imprescriptibility of the crime of slavery, (…) the Court has verified the imprescriptible nature of the crime of slavery and similar conditions in international law, as a result or their nature as crimes under international law, whose prohibition has the status of jus cogens (…) In addition, the Court recalls that, according to its consistent case law, crimes that involve egregious human rights violations cannot be subject to prescription.81 Moreover, the Court highlighted that, regarding such crimes, the State must adequately guarantee the right of access to justice by fulfilling the duty to investigate, prosecute and, when appropriate, punish and compensate for such acts, and that, to achieve this objective, the State must respect due process, as well as guarantee the principle of reasonable time, effective remedies and compliance with the judgment.82 The judgment of the Court in Hacienda Brasil Verde Workers is also relevant for the Court’s jurisprudence on the peremptory character of the principle of equality and non-​discrimination. It noted that … the principle of the equal and effective protection of the law and non-​ discrimination is a prominent element of the human rights protection system that is established in numerous international instruments and has been developed by legal doctrine and jurisprudence. At the current stage of evolution of international law, the fundamental principle of equality and non-​discrimination had entered the domain of jus cogens. It underlies the legal framework of national and international public order and permeates the whole legal system.83 Also worth mentioning is the reference to the right to life in Bámaca-​Velásquez v. Guatemala. In that case, although the Inter-​American Court does not qualify the right to life as jus cogens, the Court underlined the equivalence between the content of common Article 3 of the Geneva Conventions of 1949 and the provisions of the American Convention and other international instruments 80 81 82 83

Ibid. Id., at para. 454. Id., at para. 412. Id., at para. 416.

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concerning non-​derogable human rights, such as the right to life and the right not to be subjected to torture or cruel, inhuman or degrading treatment.84 On this basis, relevant provisions of the Geneva Conventions may serve as elements of interpretation of the American Convention.85 Likewise, in his separate opinion to the aforementioned judgment, Judge Cançado Trindade highlighted that the convergences between the international human rights law and international humanitarian law contribute to establish non-​derogable rights, starting with the fundamental right to life, in the domain of jus cogens.86 Judge Sergio García Ramírez, for his part, in his separate concurring opinion on the same judgement, stressed that: The Court can go further in its appreciation of this matter, even when it is not strictly required to under the terms of the application, and observe the presence of norms of jus cogens resulting from the evident correlation –​which shows an international consensus –​between the provisions of the American Convention, the Geneva Conventions, and “other international instruments” (…) regarding “non-​derogable human rights (such as the right to life and the right not to be submitted to torture or cruel, inhuman and degrading treatment.”87 Months later, also with respect to the fundamental right to life, Judge Cançado Trindade, in his separate opinion on the judgment of the case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, emphasized that the protection of such right requires positive actions by the State and falls within the domain the jus cogens.88 4

Final Remarks

The practice of the Inter-​American Court and Commission has had a profound impact on the development of the law concerning peremptory norms

84 85 86 87 88

Case of Bámaca Velásquez v. Guatemala (Merits), Judgment of the Inter-​American Court of Human Rights, 25 November 2000. Id., at para. 209. Id., Separate Opinion of Judge Cançado Trindade, at para. 27. Id., Separate Concurring Opinion of Judge García Ramírez, at para. 25. See Separate Concurring Opinion of Judge Cançado Trindade in Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala (Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 26 May 2001, at para. 36.

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of general international law (jus cogens). As pointed out by Judge Cançado Trindade in his separate opinion in Caesar v. Trinidad and Tobago: It is relevant to keep on identifying the expanding material content and scope of jus cogens, as the Inter-​American Court has been doing in the last years. The Inter-​American Court has probably done for such identification of the expansion of jus cogens more than any other contemporary international tribunal. It is important that it continues doing so, in the gradual construction, at this beginning of the XXIst. century, of a new jus gentium, the international law for humankind.89 In addition to the impact on the international plane, it has also had an impact domestically. An example of this impact is the decision of the Peruvian Constitutional Court of 2011 concerning a claim of unconstitutionality filed by a group of congressmen against Legislative Decree Nº 1097.90 The Decree was a legal instrument issued by the Executive Branch, which sought to regulate the application of procedural rules for crimes involving human rights violations. It included a provision that the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes against Humanity took effect in Peru from 9 November 2003, in accordance with the declaration made by the Peruvian State when it acceded to the said Convention. The referred declaration, contained in Legislative Resolution Nº 27998 of 11 June 2003, approving that treaty, pointed out that: In accordance with Article 103 of its Political Constitution, the Peruvian State accedes to the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted by the United Nations General Assembly on 26 November 1968, for crimes under the Convention committed after its entry into force for Peru.91 89 90

91

See Separate Opinion of Judge Cançado Trindade in Case of Caesar v. Trinidad and Tobago (Merits, Reparations and Costs), Judgment of the Inter-​American Court of Human Rights, 11 March 2005, at para. 92. File no. 0024-​2010-​p i/​t c, Judgment of the Peruvian Constitutional Court, 21 March 2011, Concerning a Claim of Unconstitutionality Filed by 25% of the Legal Number of Congressmen against Legislative Decree Nº 1097. For greater certainty, in the Peruvian legal system, a Legislative Decree is a norm with legal status regarding a specific subject and for a determined period issued by the Executive Branch pursuant to delegated powers granted by the Congress of the Republic. English version of the declaration made by the Peruvian State when it acceded to the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. See United Nations Treaty Collection: https://​treaties.un.org/​Pages/​ ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​6&chapter=4&clang=_​en. For greater

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The Constitutional Court ruled that the above-​mentioned provision of the legislative decree under consideration was unconstitutional, and that, by implication, the declaration contained in the above-​mentioned legislative resolution was unconstitutional as well. The Constitutional Court based this decision on the judgments of the Inter-​American Court that emphasized the nature of jus cogens of the prohibition of crimes against humanity, the impossibility of applying procedural mechanisms such as statute of limitations or amnesty in respect of those crimes, and the fact that the non-​applicability of prescription for those crimes was not based on a treaty, nor conditioned to its entry into force, but rather relied on the very nature of such peremptory norm of general international law, which is simply recognized by that treaty. In this regard, the Constitutional Court of Peru remarked that: … it should be clear that the rule of non-​applicability of statutory limitations to crimes against humanity, and consequently the mandate for their prosecution, irrespective of the date on which they were committed, is not applicable in the Peruvian legal system as a result of the entry into force of the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (9 November 2003), but arises by virtue of a peremptory norm of general international law which, as the Inter-​American Court has held, does not arise from the Convention in question, but is recognised in it (Cfr. Case La Cantuta v. Peru, Judgment of 29 November 2006, paragraph 225).92

certainty, the original text of the declaration is written in Spanish, it contains the sole Article of Legislative Resolution Nº 27998 of 11 June 2003, which reads as follows: De conformidad con el Artículo 103 de su Constitución Política, el Estado Peruano se adhiere a la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, adoptada por la Asamblea General de las Naciones Unidas, el 26 de noviembre de 1968, para los crímenes que consagra la convención, cometidos con posterioridad a su entrada en vigor para el Perú. 92 See Judgment of the Peruvian Constitutional Court (above note 90), free unofficial translation, at para. 62. For greater certainty, the original text written in Spanish reads as follows: … debe quedar claro que la regla de imprescriptibilidad de los delitos de lesa humanidad, y consecuentemente, el mandato de su persecución, con prescindencia de la fecha en que aquellos se hayan cometido, no tiene vigencia en el ordenamiento jurídico peruano como consecuencia de la entrada en vigor de la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad (9 de noviembre de 2003), sino que surge en virtud de una norma imperativa de derecho internacional general que, como ha sostenido la Corte Interamericana, no nace de la referida Convención, sino que

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The Constitutional Court continued as follows: Accordingly, assuming a criterion which … this collegiate body shares, the Court does not consider that the rule of non-​applicability of statutory limitations to crimes against humanity can be applied only from the ratification of the Convention on the Non-​Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, onwards, but rather, being a norm of ius cogens, such crimes are imprescriptible, regardless of the date on which they were committed.93

Acknowledgements

I want to start by expressing my sincere recognition to Professor Dire Tladi, friend and colleague on the United Nations ilc, for his outstanding work as Special Rapporteur on Peremptory Norms of General International Law (jus cogens). Furthermore, I want to specially express my gratitude to Roberto Claros and Grismi Bravo for their invaluable collaboration throughout the process of elaboration of this chapter, as well as to Karem Cárdenas for her support with some references on the Inter-​American Commission on Human Rights. 93

está reconocida en ella (Cfr. Caso La Cantuta vs Perú, Sentencia del 29 de noviembre de 2006, párrafo 225). Id., at paragraph 68. For greater certainty, the original text written in Spanish reads as follow: En consecuencia, asumiendo un criterio que (…) este Colegiado comparte, la Corte no considera que la regla de imprescriptibilidad de los crímenes de lesa humanidad pueda regir solamente a partir de la ratificación de la Convención sobre la impres­ criptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, hacia el futuro, sino que, siendo una norma de ius cogens, tales crímenes son imprescriptibles, cualquiera sea la fecha en que se hayan cometido.

Chapter 13

Jus Cogens and (In)Application of the 1969 Vienna Convention on the Law of Treaties in the Jurisprudence of the International Court of Justice Catherine Maia 1

Introduction

Nowadays, the existence of jus cogens can hardly be denied, both in view of its more or less explicit evocation by States, international organisations, judicial and arbitral bodies, and in view of the broad academic support to this notion, whose essential role in the international legal order is recognised. Indeed, any legal system requires the existence of certain fundamental norms. The regulation of international relations operating in a fragmented legal order is no exception to this necessity, which is all the more crucial in the face of increasing interdependence between States and the emergence of new global challenges and threats. Nevertheless, the notion of jus cogens continues to suffer from certain shortcomings relating both to the vagueness of its content and the uncertainty of its effects. It is striking that these issues, which were at the heart of the work of the International Law Commission (ilc) leading to the adoption of the Vienna Convention on the Law of Treaties (vclt) in 1969, remain at the heart of the work of the Commission, which decided in 2015 to include the topic “Jus Cogens” in its agenda. It is worth recalling that the consecration of the notion of jus cogens in positive law culminated in the late 1960s, at a time when the emergence of many new States on the international scene was a recent and still ongoing phenomenon. An increasingly heterogeneous and interdependent international society contributed to generate contradictory effects in the formulation of jus cogens marked, in particular, by a dichotomy between voluntarism and objectivism.1 Yet, with the inclusion of jus cogens in the vclt, the idea that there 1 A paradox seems to stem from the choice of the two verbs used by the 1969 Vienna Convention on the Law of Treaties to define the jus cogens notion, i.e. “accept” and “recognise”. The verb “accept” shows that consent is an inherent element in the creation of the norm. The verb “recognise” requires that the norm must be identified as peremptory, because it deals with the protection of fundamental interests. Thus, we are faced with the apparently paradoxical

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_014

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were at least some essential rules from which States cannot derogate became entrenched in the mainstream of international law. It may be argued that, despite French opposition –​the only country to have voted against the vclt2 –​the great merit of this Convention has been to bring States from all continents and main political systems to recognise, for the first time, the existence of peremptory norms in an instrument considered as the “treaty of treaties”, with several provisions governing this normative category: in addition to Articles 53 and 64 which define the notion and its principal effects, Articles 44(5), 65, 66 and 71 contain provisions on the applicable regime in the event of a violation.3 It is against this historical background that, more than 50 years after the adoption of the vclt, the effectiveness of the provisions relating to jus cogens may be questioned. At the time, the codification of this notion had been welcomed as a major innovation. However, from the outset, the seeds of a potential “inapplication” were already present, both due to the difficulties encountered in its identification and to the uncertainty of its effects. 2

Jus Cogens and the vclt: The Germs of (In)Application from the Perspective of the Identification

The vclt devotes Articles 53 and 64 to the question of the identification of peremptory norms, by focusing on the function of jus cogens, i.e. the invalidity of a treaty that would conflict with one of these norms. On the other hand, the problem of the content of such norms is set aside, with a definition which at first sight seems tautological. Thus, according to Article 53: situation that the effective existence of “higher” norms binding on States irrespective of their will depends, in reality, on their acceptance and recognition. 2 Even the most reluctant States, among which those that had voted against Article 53 –​ namely Australia, Belgium, France, Liechtenstein, Luxembourg, Monaco, Switzerland and Turkey –​admitted the existence of peremptory norms, but shared a common concern about the stability of international conventional relations. However, their reticence was in no way directed against peremptory law itself, which garnered broad support, but against the vagueness of the notion. As Special Rapporteur Dire Tladi rightly asserted in his First Report of the Special Rapporteur on Jus Cogens (A.cn.4/​693) (2016) at para. 36, “France, for example, which has often been seen as the main opponent of jus cogens at the Vienna Conference did not oppose the principle but rather insisted on clarity”. This statement is reiterated in the Second Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​706) (2017), at para. 17. 3 The vclt contains a preamble, 85 articles grouped into eight parts, and an annex that complements the provisions of Article 66 on dispute settlement procedures.

344 Maia A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised 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. Article 64 adds that “[i]‌f a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”. Rather than delving further into the content of jus cogens, the ilc has relied on State practice and, above all, on case-​law. However, if the jurisprudence has grown over the years, the work of materialisation has come up against its original limits and is being carried out outside the conventional sphere. The Original Limitations of the Consecration of Jus Cogens in the Conventional Sphere The choice made by the ilc to take into account the existence of peremptory norms in its codification work on the law of treaties was decisive. Indeed, its reports are written not for speculative purposes, but to meet practical needs. That choice, therefore, led the ilc to affirm the existence de lege lata of a number of requirements concerning the treaties’ subject matter in order to justify the limitation of the sovereign will of States. This limitation consists in restricting the material freedom of States to conclude international agreements, with no derogation possible and under penalty of absolute nullity. At the Vienna Conference (1968–​1969) that was devoted to the work of the ilc on the law of treaties, the prevailing attitude of participating States was of enthusiasm for peremptory norms, which was seen as a major innovation.4 The attractiveness of jus cogens stems from the fact that it is a concept bearing values, which are both difficult to challenge, because of their positive connotation, and easy to admit, because of their ability to comply with different approaches. This strong axiological burden explains why the consecration of jus cogens has been immediately perceived, and welcomed, by some States as the transformation of certain moral imperatives into binding rules. Moreover, when the ilc began its codification work, the atrocities perpetrated during 2.1

4 See, on this point, Antonio Cassese International Law in a Divided World (Clarendon, 1994), at 177.

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the Second World War were still present in people’s minds. These atrocities, that shortly before had raised a great outpouring of solidarity which led to the creation of the United Nations, were now prompting a call for the moralisation of treaty law. Nevertheless, from the outset, being the result of compromises, the consecration of the notion of jus cogens in the vclt had not gone without difficulties that still persist today.5 While these difficulties were not, and are not, in themselves an obstacle to the recognition of the notion, they do point to the existence of limitations that make the identification of its substance more difficult. As early as the Vienna Conference, it was considered that jus cogens should be defined as clearly as possible, arguing that in the absence of precise criteria, not only would the notion be condemned to become a mere claim of right without real content, or even a pure magical incantation, but it could also open the door to arbitrariness and destabilise conventional relations. Nevertheless, while at the legal level, the vagueness of the provisions relating to jus cogens is to be regretted, at the political level, this vagueness was undoubtedly desired. At the time of the Vienna Conference, State delegations endeavoured to provide clarifications in order to make jus cogens an “operational” concept of positive law. In order to do so, it seemed necessary to provide a precise definition and identify its content, either by elaborating a general formulation based on objective criteria, or by providing a list of examples, or both. Thus, the debates that could not focus on the principle of jus cogens itself, the greatness of which made it difficult to refute, turned to the problems of formulating and identifying its content. With regard to the problem of formulation, Article 53 defines peremptory norms by their effect, namely, as norms “from which no derogation is permitted”. Nonetheless, this definition, by merely asserting the inderogability of peremptory rules, is tantamount to describing the nature of such rules and not to providing criteria for their identification. The chosen formulation answers the question with the question, since non-​derogability is neither an explanation of the peremptory character, nor a justification of it.6 This explains why 5 These difficulties led Rozakis to say that “the [Vienna] Convention does not sufficiently empower the concept of jus cogens with the capacity to fully fulfil, through its provisions, its social function” in Christos Rozakis The Concept of Jus Cogens in the Law of Treaties (North-​ Holland, 1976), at 9. 6 On this point see, in particular, Matthew Saul “Identifying Jus Cogens Norms: the Interaction of Scholars and International Judges” (2015) 5 Asian Journal of International Law 26, at 29 et seq.; Ulf Linderfalk “The Creation of Jus Cogens: Making Sense of Article 53 of the Vienna Convention” (2011) 71 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 359. See, however, Robert Kolb Théorie du Ius Cogens International (Graduate Institute Publications, 2001), who reduces jus cogens to its non-​derogable effect.

346 Maia this definition has sometimes been criticised as being tautological or circular. The relationship of interchangeability established between “peremptory norms” and “non-​derogable norms” could, in fact, be seen as more of a “vicious circle” than a truly operative definition. The identification problem could have been addressed by providing examples. Indeed, a proposal to mention, by way of illustration, the best-​established rules of jus cogens was put forward within the ilc and subsequently at the Vienna Conference.7 Nevertheless, the idea of drawing up a list was quickly abandoned.8 Given the complexity of the task, it seemed difficult for the ilc to seek peremptory rules one by one. In doing so, the risk was to get involved in an enormous amount of work going far beyond the scope of the project on the law of treaties. Not to mention that such an undertaking could also petrify an essentially moving material and enshrine serious omissions. The only norm of jus cogens expressly identified in the vclt as leading to absolute nullity is the prohibition of agreements concluded by coercing a State –​i.e. through the use of armed force –​which is addressed under a dedicated provision, Article 52. 7 The idea of drawing an indicative list has not been abandoned, since it is present in the ilc’s current work on the subject. See Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), adopted on first reading, Report of the International Law Commission, Seventy-​first session, General Assembly Official Records (A/​74/​10) (2019), which includes an Annex containing a non-​exhaustive list of norms which it had previously designated as having this status: the prohibition of aggression, the prohibition of genocide, the prohibition of crimes against humanity, the fundamental rules of international humanitarian law, the prohibition of racial discrimination and apartheid, the ban of slavery, the proscription of torture, and the right to self-​determination. 8 In order to guide the interpreter, the ilc merely provided some fairly consensual examples, not in the text of its Draft Article 50 [53] itself, but in its commentary: “Examples suggested included (a) a treaty contemplating an unlawful use of force contrary to the principles of the Charter, (b) a treaty contemplating the performance of any other act criminal under international law, and (c) a treaty contemplating or conniving at the commission of acts, such as trade in slaves, piracy or genocide, in the suppression of which every State is called upon to co-​operate. Other members expressed the view that, if examples were given, it would be undesirable to appear to limit the scope of the article to cases involving acts which constitute crimes under international law; treaties violating human rights, the equality of States or the principle of self-​determination were mentioned as other possible examples”. See Para. 3 of Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties, Report of the International Law Commission, Eighth Session, General Assembly Official Records (A/​6309/​ Rev.1) (1966). Significantly, these examples were taken up by the ilc in its commentary under Article 40 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, the latter cautiously clarifying that the list was by no means intended to be exhaustive. See footnote 641, at 112, and para. 4, at 112, of the Commentary to Article 40 of the Articles on the Responsibility of States for Internationally Wrongfully Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001).

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Despite the efforts made within the ilc, and subsequently at the Vienna Conference, the provisions on peremptory law remain surrounded by a certain vagueness. However, it must be made clear that this situation is certainly not random and corresponds, to some extent, to what the negotiators had intended. Undeniably, while vagueness is unsatisfactory from a legal point of view, it can be very useful from a political point of view, because it gives States a considerable room for manoeuvre. From this perspective, it can be said that by remaining at a very general level, the definition of this notion gives the impression of leaving sufficient freedom of interpretation that can be used by States to give jus cogens the content that best matches their own interests. Jurisprudential Identification of the Content of Jus Cogens outside the Conventional Sphere In referring to the identification of the content of jus cogens to States and, more specifically, to case-​law, has the appeal of the ilc been heard? While States refer sporadically to peremptory norms, there have been some advances in international jurisprudence, including outside the conventional framework. Where the vclt had placed the International Court of Justice (icj) at the heart of the work of unveiling the jus cogens notion, this Court has not fulfilled the role of translator-​interpreter that could have been its own9 –​being far, for example, from the rich jurisprudence of the Inter-​American Court of Human Rights, which has repeatedly recognised the peremptory nature of various rights10 –​and remained very timorous in its work of materialisation of 2.2

9 10

See Catherine Maia “Le Juge International au Cœur du Dévoilement du Droit Impératif: entre Nécessité et Prudence” (2005) 83 Revue de Droit International, de Sciences Diplomatiques et Politiques 1. See Catherine Maia “Le Jus Cogens dans la Jurisprudence de la Cour Interaméricaine des Droits de l’Homme” in Ludovic Hennebel and Hélène Tigroudja (eds.) Le Cinquantième Anniversaire de l’Adoption de la Convention Américaine des Droits de l’Homme (Bruylant, 2009). The jurisprudence of the Inter-​American Court of Human Rights (IACtHR) recognised several peremptory norms, including: the prohibition of slavery (Hacienda Brasil Verde Workers v. Brazil, Judgement of the IACtHR, 20 October 2016), the prohibition of torture (Women Victims of Sexual Torture in Atenco v. Mexico, Judgement of the IACtHR, 28 November 2018), the prohibition of extra-​judicial executions (Gómez-​Paquiyauri Brothers v. Peru, Judgement of the IACtHR, 8 July 2004), the prohibition of cruel, inhuman or degrading punishment or treatment (Caesar v. Trinidad and Tobago, Judgement of the IACtHR, 11 March 2005), the prohibition of enforced disappearances (Goiburú et al. v. Paraguay, Judgement of the IACtHR, 22 February 2006), the prohibition of crimes against humanity (Almonacid-​Arellano et al. v. Chile, Judgement of the IACtHR, 26 September 2006), the principle of equality and non-​discrimination (Gutiérrez Hernández et al. v. Guatemala,

348 Maia peremptory law.11 There are several reasons for this moderation. Firstly, because of the uncertainties surrounding the content of jus cogens, States have refrained from bringing cases before the icj regarding the application and interpretation of Articles 53 or 64. Consequently, the icj has not been called upon to intervene under Article 66(a). To our knowledge, neither before nor after the vclt, no treaty has ever been annulled on the basis of a violation of a peremptory norm. Secondly, because of an optional system of jurisdiction based on consensualism, the icj has put in place an avoidance strategy, aimed at not frightening States with a notion that might have appeared too bold. Consequently, it has refrained from taking an open position on the issue, even if this has meant taking up the arguments of the parties without deciding on the nature of the invoked norm.12 The icj has also shown its preference for the use of

11

12

Judgement of the IACtHR, Judgment of 24 August 2017). In contrast, the recognition of jus cogens by the European Court of Human Rights (ECtHR) started later, since it was only in 2001 that it recognised this notion for the first time, admitting the peremptory nature of the prohibition of torture (Al-​Adsani v. United Kingdom, Judgement of the ECtHR, 21 November 2001), an assertion which was subsequently reiterated (Demir and Baíakara v. Turkey, Judgement of the ECtHR, 12 November 2008; Othman (Abu Qatada) v. United Kingdom, Judgement of the ECtHR, 17 January 2012). The jurisprudence of the European Court of Human Rights is also more modest, since fewer norms have been qualified as peremptory compared to its Inter-​American counterpart, among which: the principle of legality in the field of criminal law (Ilnseher v. Germany, Judgement of the ECtHR, 4 December 2018); the prohibition of the use of force (Sargsyan v. Azerbaijan, Judgement of the ECtHR, 16 June 2015); the prohibition of genocide (Jorgic v. Germany, Judgement of the ECtHR, 12 July 2007). For an overview of international and regional jurisprudence on the subject, see Catherine Maia “Consécration du Jus Cogens: un Dialogue à Raviver entre Juridictions Internationale et Régionales dans l’œuvre de Reconnaissance de Droits Humains Impératifs” 2020 45 Civitas Europa 297–​315. In two symptomatic cases, the icj merely reiterated the arguments of the parties concerning the peremptory nature of the invoked norm. Thus, in its first direct reference to peremptory law in the 1986 Judgment in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), icj Reports 1986, p. 14, at para. 190, the Court used the expression “jus cogens” on three occasions, not for its own account, but to relay the voices of other authors. In the same paragraph, the icj noted that States frequently refer to the prohibition of the use of force as fundamental, it quoted a passage from the work of the ilc qualifying that principle as peremptory, and observed that the parties to the dispute accepted this peremptory nature, without, however, endorsing this qualification. Subsequently, in the 1997 Judgment on the case concerning Gabčíkovo-​Nagymaros Project (Hungary v. Slovakia), icj Reports 1997, p. 7, at para. 112, the Court used the expression “jus cogens”, sheltering behind the litigating States and arguing that: “Neither of the Parties contended that new peremptory norms of environmental law had emerged since the conclusion of [the litigious] Treaty, and the

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periphrases or neighbouring notions, with principles and obligations qualified in turn as erga omnes, intransgressible, cardinal, elementary, moral or fundamental.13 It has also preferred to circumvent the problem by narrowly interpreting the questions submitted to its judgment14 and raising the issue of jus cogens only when it did not interfere with its office. As a symptomatic example of this cautious attitude, its 2010 Advisory Opinion Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, the icj recalled the condemnation by the Security Council of certain declarations of independence, while specifying that “the illegality attached to the declarations of independence (…) stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)”.15 This assertion on the existence of peremptory norms seems rather inoffensive, since it is not accompanied by the identification of a specific norm, which allowed the icj to admit the notion in general without taking a position on a particular norm. It was only in 2006 that the icj recognised for the first time a norm of jus cogens in its Judgment Armed Activities on the Territory of the Congo.16 In

13 14

15 16

Court will consequently not be required to examine the scope of Article 64 of the Vienna Convention on the Law of Treaties”. It was here with serenity that the icj could make this direct reference, the validity of the treaty in question in the light of jus cogens being dismissed as irrelevant for the case before the court. See on this point Maia (above note 10), at 12–​16. The 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Reports 1996, p. 226, paras. 78-​79, is a characteristic example of the icj’s self-​limitation regarding jus cogens. In this case, the icj recognised certain principles of international humanitarian law as “cardinal” –​namely the protection of the civilian population and civilian objects and the prohibition to use weapons causing unnecessary suffering to combatants –​which are binding on all States as “intransgressible” principles of international customary law. Although close to the notion of jus cogens, the icj devoted an entire paragraph to explain that it did not intend to rule on the peremptory nature of humanitarian law norms, this question going beyond the request at hand (para. 83). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, icj Reports 2010, p. 403, at para. 81. It should be noted that this explicit recognition was facilitated by the departure of the French judge Gilbert Guillaume, who sat on the icj from 1987 to 2005. However, this criticism to jus cogens can be found among other French judges at the icj. See, in particular, the separate opinion of Judge Abraham in Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), icj Reports 2010, p. 422, at para. 27, (the qualification of the prohibition of torture as a peremptory norm “is clearly a mere obiter dictum, which the Court could have omitted without depriving its reasoning of any vital element”) and the dissenting opinion of Judge ad hoc Sur, at para. 4 (“the reference to jus cogens which

350 Maia this case, the Democratic Republic of Congo had filed an application against Rwanda for “massive, serious and flagrant violations of human rights and of international humanitarian law” resulting from Rwanda’s acts of armed aggression on its national territory in violation of Congolese sovereignty and territorial integrity. While both parties agreed on the peremptory nature of the prohibition of genocide, the icj endorsed this qualification without any form of demonstration. It is as if the peremptory nature is self-​evident, since this is “assuredly the case with regard to the prohibition of genocide”, the court said.17 While this recognition did not remain isolated, it was not accompanied by further explanations in its subsequent judgments. Thus, in 2007, in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), the icj incidentally asserted that “the norm prohibiting genocide was assuredly a peremptory norm of international law (jus cogens)”.18 In 2015, in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the icj reiterated that “the prohibition of genocide has the character of a peremptory norm (jus cogens)”.19 In addition to the prohibition of genocide, the proscription of torture has been the second norm qualified as peremptory by the icj, as per its 2012 Judgment on Questions relating the Obligation to Prosecute or Extradite, this time in the midst of further developments in general practice and in the conviction of States about the fundamental character of such a norm: In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens). That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948, the 1949 Geneva Conventions for the protection

17 18 19

appears in the reasoning [is] a reference which is entirely superfluous and does not contribute to the settlement of the dispute, as will be seen. The purpose of this obiter dictum is to acknowledge and give legal weight to a disputed notion, whose substance has yet to be established”). Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), icj Reports 2006, p. 6, at para. 64. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj Reports 2007, p. 43, para. 161. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), icj Reports 2015, p. 3, para. 87.

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of war victims; the International Covenant on Civil and Political Rights of 1966; General Assembly Resolution 3452/​30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.20 In total, only two peremptory norms have been explicitly recognised so far by the icj, and it is not possible to say that these cases have contributed to precisely defining their content and identification criteria. This moderation of the icj contrasts sharply with the boldness of judges who, in their separate and dissenting opinions, did not hesitate to take position on the peremptory nature of the rules relevant to the cases at stake. One thinks, in particular, of the Brazilian judge Cançado Trindade who, after having given impetus to the notion of jus cogens as judge and president of the Inter-​American Court of Human Rights, is now doing so at the icj, where he continues to develop and defend the notion in his separate or dissenting opinions.21 Judge Cançado Trindade is far from being alone. To give one recent example, in the 2019 Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, several judges regretted that the icj, after asserting the customary nature of the self-​determination of peoples at the time of General Assembly Resolution 1516, did not go so far as to seek the existence of an opinio juris cogentis. In this sense, in particular, the Jamaican Judge Robinson deplored the fact that the icj did not qualify the right to self-​ determination of peoples as peremptory, which would eventually have allowed it to declare, on the basis of the violation of jus cogens under Article 53 of the

20 21

Questions relating to the Obligation to Prosecute or Extradite (above note 16), para. 99. Among several dissenting opinions of Judge Cançado Trindade, see in particular the opinion appended to the 2016 Judgment on Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), icj Reports 2016, p. 833, at paras. 186-​187, in which he listed among the peremptory norms the prohibition of arbitrary deprivation of human life, the prohibition of cruel, inhuman or degrading treatment, the prohibition of infliction of unnecessary suffering, and the prohibition of the threat or use of nuclear weapons; or the opinion appended to the 2015 Judgment on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (above note 19), at para. 83, in which he stated that “[g]‌rave violations of human rights, acts of genocide, crimes against humanity, among other atrocities, are in breach of absolute prohibition of jus cogens. The feeling of humaneness permeates the whole corpus juris of contemporary international law”.

352 Maia vclt, the nullity of the treaty between the United Kingdom and the United States of America concerning the military installations of Diego Garcia.22 3

Jus Cogens and the vclt: the Germs of (In)Application from the Perspective of the Effects

The inability to reach a more precise definition of jus cogens led the vclt drafters to look for a palliative in a dispute settlement procedure that is both objective and binding. With four articles devoted to the effects of violations of peremptory norms –​Articles 44(5), 65, 66 and 7123 –​the aim was to avoid any abuse which would undermine the stability of the treaties. However, again, its original limitations question the very usefulness of such guarantees in the conventional sphere, while jus cogens has deployed circumscribed effects outside that sphere. The Original Limitations of the Invalidity Mechanism for Violation of Jus Cogens in the Conventional Sphere First of all, there are limits to the dispute settlement procedure instituted by the vclt, which has not gone so far as to establish an objective mechanism as would have been required by the logic of the affirmation of international public order and which, consequently, does not exclude the much-​feared risks of abuse. Indeed, the adopted procedure eliminates any automaticity in the declaration of nullity through a two-​step time-​cutting process. In the first step, which is common to all types of disputes, the resolution of the conflict is left to States. Thus, Article 65 provides for the obligation for a party wishing to invoke the nullity of a treaty to notify its claim to the other parties, indicating the envisaged measure and its motivations. Such notification shall be given within a period of not less than three months. At the expiry of this period, two hypotheses are possible: either no objection is raised, in which case the notifying party can take the proposed measure; or an 3.1

22 23

See Separate Opinion of Judge Robinson in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, icj Reports 2019, p. 95, at para. 83. While the procedure to be followed in the domain of the nullity of a treaty is governed by Articles 65 and 66, concerning the consequences of nullity, Article 71 lays down the retroactive nature of the effects of invalidity related to the violation of jus cogens. Article 44(5) retains the principle of indivisibility in the event of a conflict with existing peremptory norms (Article 53) and, a contrario, the principle of divisibility in the event of a conflict with emerging peremptory norms (Article 64).

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objection is raised, in which case the parties to the litigious treaty will have to settle their dispute peacefully by choosing one of the methods recognised by general international law, namely those listed in Article 33 of the Charter of the United Nations, including negotiation, conciliation, arbitration or judicial settlement.24 In reality, such a procedure seems quite illusory, since it offers no guarantee that an application for nullity will indeed be submitted to an impartial examination, inasmuch as the parties are merely informed of the means at their disposal without being under any obligation to resort to them. In practice, therefore, a State could free itself unilaterally from its commitments by subjectively deciding on the validity of a treaty in light of its own assessment of what are the most fundamental values of the international community. In the case of failure of this first stage, in a second stage, which is specific to disagreements involving a peremptory norm, the dispute would have to be submitted to the jurisdiction of a third party, either a judge or an arbitrator. To this end, Article 66 provides for a procedure of judicial settlement or arbitration in the event that the dispute is not settled within 12 months from the day on which it has been ascertained, with, in particular, the possibility of a unilateral referral to the icj. In this sense, paragraph (a) of this article, provides that “[a]‌ny one of the parties to a dispute concerning the application or the interpretation of Article 53 or 64 may (…) submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration”.25 The logic behind the introduction of a unilateral right of citation is that a State may bring a proceeding against any other State without the latter necessarily having made an optional declaration of compulsory jurisdiction,26 the decision being then binding on the concerned States as res judicata. Nevertheless, several States parties to the vclt have made reservations to Article 66, to which objections have been raised. The icj, whose jurisdiction 24

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Article 33 of the 1945 Charter of the United Nations: “1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means”. The prescriptions of paragraph (b) of Article 66, for their part, relate to disputes concerning any of the causes of invalidity, termination and suspension of the operation of treaties other than the violation of jus cogens, providing for a mandatory conciliation procedure as per the appendix of the vclt. As of 10 July 2020, 74 States had made such a statement.

354 Maia remains based on the indispensable consent of States, had the opportunity to recall the validity of such reservations in its 2006 Judgment on Armed Activities on the Territory of Congo. In that case, the Democratic Republic of Congo had invoked the invalidity of the reservation made by Rwanda to Article 66, developing the argument that reservations must not be directly in contradiction with peremptory norms or prevent the implementation of such norms. The icj, however, found the validity of the Rwandan reservation indisputable, stating that “the mere fact that rights and obligations erga omnes or peremptory norms of general international law (jus cogens) are at issue in a dispute cannot in itself constitute an exception to the principle that its jurisdiction always depends on the consent of the parties”.27 Since the mechanism of Article 66 does not depart from the consensual basis of international justice, it can therefore be affirmed that the recourse to the icj is only relative: it is established by a treaty and binds only the parties to the vclt, which is still far from being universal, and only to the extent that a reservation is not applicable.28 Moreover, since the recourse to the icj is not automatic, it is only subsidiary: it can only intervene once the settlement means of Article 65 have been exhausted. Beyond the obstacles to the application of Article 66, one may question the usefulness of the dispute resolution procedure. Indeed, among the most commonly cited examples of peremptory rules are the prohibition of aggression, genocide, torture, racial discrimination or slavery. “These are all examples that are both indisputable and unnecessary, at least in the field where Article 53 purports to play a role, to the extent that everyone agrees that treaties that

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Armed Activities on the Territory of the Congo (above note 17), at para. 125. The icj had already taken such a position in 1999, i.e. even before its qualification of the prohibition of genocide as an accepted peremptory norm. While Yugoslavia had invoked Article ix of the 1948 Convention for the Prevention and Punishment of the Crime of Genocide as a basis for the icj’s jurisdiction in the cases on the Legality of the Use of Force which opposed it to several North Atlantic Treaty Organization (nato) member States, including the United States of America and Spain, the icj declared that the reservations made by Spain and the United States against this article in order to escape a unilateral referral were perfectly valid, and this had led it to remove these two cases from the list of cases. See: Legality of the Use of Force (Yugoslavia v. United States of America), icj Reports 1999, p. 916, at para. 25; Legality of the Use of Force (Yugoslavia v. Spain), icj Reports 1999,p. 761, at para. 33. As at 10 July 2020, the vclt had 45 signatories and 116 parties. It should also be noted that, as indicated by the icj, the provisions contained in Article 66 are not of a customary nature. See Armed Activities on the Territory of the Congo (above note 17), at para. 125.

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violate these prescriptions are highly unlikely”.29 Such examples seem all the more “inoffensive”30 or “devoid of practical interest”,31 because it is difficult to imagine States concluding treaties in violation of peremptory law, if one considers that, by virtue of their registration with the Secretary-​General of the United Nations, they are publicised in such a way as to bring them to light.32 This publicity given to treaties explains why overt violations will remain rare. If States do aim to conclude agreements that contradict peremptory norms, for example with a view to organising a genocide or an aggression, they would undoubtedly keep such agreements secret so as not to attract the attention of the international community.33 Moreover, in the event of agreements not registered with the Secretary-​General of the United Nations, the sanction being the impossibility of bringing the treaty before the icj, the latter, if seized, would have to declare itself incompetent and would, therefore, not have the possibility of declaring the absolute nullity of the said secret treaty. In the current state of international law, it is unlikely that States parties to a treaty will take the risk of bringing the issue of its validity before a judge or arbitrator, not only because of the uncertainties surrounding jus cogens, but also because initiating the procedure provided for in Article 66 would be tantamount to admitting of having reached an agreement in violation of norms considered to be essential by the international community.34 29 30 31 32

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Hélène Ruiz Fabri “L’Ordre Public en Droit International” in Marie-​Joëlle Redor (ed.) L’Ordre Public: Ordre Public ou Ordres Publics? Ordre Public et Droits Fondamentaux (Bruylant, 2001), at 89. Paul Reuter La Convention de Vienne du 29 Mai 1969 sur le Droit des Traités (Armand Colin, 1970), at 20–​21. Charles Rousseau Principes Généraux de Droit International Public Vol. i (Pedone, 1944), at 341–​342. In accordance with Article 102 of the Charter of the United Nations: “1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations”. This applies, in particular, to the agreements on the supply of personnel and arms to nato for its bombing of Serbia in 1999 and the support agreements concluded between several States and the United States for their armed intervention in Iraq in 2003. Most of these agreements have never been formalised into written agreements. See, e.g., Georges Perrin “La Nécessité et les Dangers du Jus Cogens” in Christophe Swinarski (ed.) Études et Essais sur le Droit International Humanitaire et sur les Principes de la Croix-​Rouge en l’Honneur de Jean Pictet (cicr/​Nijhoff, 1984), at 757, noting that, indeed, “whatever their designs and the ease with which they sometimes transgress their international obligations, governments are too wise to conclude agreements that would demonstrate their disregard for the high principles they profess to respect” (own translation).

356 Maia In the absence of an actio popularis in international law,35 it is even less likely that States would agree to appear before a judicial body at the request of a third State. In this respect, the provisions of Articles 65 and 66 of the vclt surprisingly restrict the possibility of invoking nullity only to the parties to the treaty, that is, those who are probably the least interested in activating such proceedings. However, the community interests underlying jus cogens would logically call for all States to be entitled to obtain a declaration of nullity of a derogatory treaty.36 Despite the importance of the procedures provided for in the vclt, none of them has ever had the opportunity to operate so far. Peremptory law has been invoked only once, and to no avail, to annul a treaty in the 1989 arbitration award on the Determination of the Maritime Boundary between Guinea-​Bissau and Senegal,37 while the icj has never been called upon to issue a decision

35

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37

In the same vein, see also Eduardo Jiménez de Aréchaga El Derecho Internacional Contemporáneo (Editorial Tecnos, 1980), at 82; Andreas L. Paulus “Jus Cogens in a Time of Hegemony and Fragmentation: An Attempt at a Re-​appraisal” (2005) 74 Nordic Journal of International Law 297, at 305. See, in that sense, the 1966 Judgment of the South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), icj Reports 1966, p. 6, at para. 88: “the Court, bearing in mind that the rights of the Applicants must be determined by reference to the character of the system said to give rise to them, considers that the ‘necessity’ argument falls to the ground for lack of verisimilitude in the context of the economy and philosophy of that system. Looked at in another way moreover, the argument amounts to a plea that the Court should allow the equivalent of an ‘actio popularis’, or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present: nor is the Court able to regard it as imported by the ‘general principles of law’ referred to in Article 38, paragraph 1 (c), of its Statute”. At the Vienna Conference, the States admitted that jus cogens did not obey the logic of the model of the society of sovereign States, but did not want to venture into the field of institutions and structures. This has been defined by some as a wobbly compromise that emptied the recognition of the peremptory law of its meaning, by taking back with one hand what had been conceded with the other. See, in particular, Lauri Hannikainen Peremptory Norms ( Jus Cogens) in International Law. Historical Development, Criteria, Present Status (Lakimiesliiton Kustannus/​Finnish Lawyers’ Publishing Co., 1988), at 293–​ 296; Bruno Simma “From Bilateralism to Community Interest in International Law” (1994) 250 Collected Courses of the Hague Academy 229, at 288–​289; Giorgio Gaja “Jus cogens beyond the Vienna Convention” (1981) 172 Collected Courses of the Hague Academy 271, at 282–​283; Ulrich Scheuner “Conflict of Treaty Provisions with a Peremptory Norm of General International Law and its Consequences” (1967) 27 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 520, at 524; André J.J. de Hoogh Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States (Kluwer, 1996), at 48. It should be noted that the first direct reference to jus cogens by the Inter-​American Court of Human Rights, in its 1993 Judgment Aloeboetoe et al. v. Suriname, concerned an 18th

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on peremptory law, let alone to declare a treaty null and void for its non-​ compliance with jus cogens.38 In other words, the limits affecting dispute settlement procedures, reinforced by the ambiguities in the definition of Article 53 which prevent a clear and predictable application, explain the lack of litigation involving peremptory rules within the framework provided by the vclt. It is true, moreover, that in the presence of a treaty organising, for example, a genocide, its validity would be regarded as a minor problem in comparison with the seriousness of the acts committed in application of it. We are therefore very far from the apprehensions of disorder, or even chaos, in contractual matters expressed by some States at the Vienna Conference.39 In this respect, it is therefore questionable whether the conventional sphere is the one offering the greatest potential for the application of a concept whose scope is, in fact, general. Jurisprudential Identification of the Effects of Jus Cogens outside the Conventional Sphere While jus cogens has only very rarely been invoked in relation to the validity of a treaty, it has been invoked more often in relation to violations committed by States. Whether expressly or implicitly, jus cogens has appeared in decisions dealing with a wide range of issues, such as international humanitarian law,40 the use of armed force,41 the legality of Security Council resolutions,42 the law 3.2

century agreement organising slavery practices. In this case, the Inter-​American Court merely observed that even if such an agreement (concluded between a tribe and a State) could be characterised as an international treaty, this instrument would today be invalid, because it is contrary to a norm of jus cogens superveniens, and therefore could not be invoked before a jurisdiction. Incidentally, it therefore recognised the prohibition of slavery as a peremptory norm. 38 To our knowledge, no treaty has ever been declared null and void by an international tribunal, either on the basis of a violation of jus cogens or on any other basis. 39 See, in particular, the position of France at the United Nations Conference on the Law of Treaties, General Assembly Official Records (A/​c onf.39/​11/​Add.1) (1969), at 217, para. 16. 40 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Reports 1996, p. 226, at paras. 21 and 83; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2004, 136, at para. 157. 41 See Military and Paramilitary Activities (above note 12), at para. 190. 42 See Court of First Instance, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of the Court of First Instance of European Communities, 21 September 2005, at para. 230 (“International law thus permits the inference that there exists one limit to the principle that resolutions of the Security Council have binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable that may be, they

358 Maia of the sea,43 extra-​judicial executions,44 enforced disappearances,45 crimes against humanity,46 slavery47 or even the right of access to a tribunal.48 Depending on the cases, the international judge had to identify the consequences of a violation outside the narrow straitjacket of the treaties, in order to give the concept its full effectiveness.49 While any norm, whether peremptory or dispositive, prohibits violations, the infringement of norms considered to protect fundamental interests for the international community is intended to have specific effects. Like an impressionist painting, the analysis of international jurisprudence enables us to identify these effects, even if they are still limited –​and will perhaps remain so in a legal order that is essentially horizontal. The path towards a general scope of jus cogens was opened in 1998 by the Furundžija case, in which the ban on torture was qualified as peremptory by the icty.50 On this occasion, the icty recalled that the peremptory nature of would bind neither the Member States of the United Nations nor, in consequence, the Community”). 43 See North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), icj Reports 1969, p. 3, at para. 72. 44 See Gómez-​Paquiyauri Brothers v. Peru, Judgement of the IACtHR, 8 July 2004, at para. 128. 45 See Goiburú et al. v. Paraguay, Judgement of the IACtHR, 22 September 2006, at paras. 62 and 84; García and Family Members v. Guatemala, Judgement of the IACtHR, 29 November 2012, at paras. 96 and 131. 46 See Almonacid-​Arellano et al. v. Chile, Judgement of the IACtHR, 26 September 2006, at paras. 99 and 153; Miguel Castro-​Castro v. Peru, Judgement of the IACtHR, 25 November 2006, at para. 402. 47 See Members of the Village of Chichupac and Neighboring Communities of the Municipality of Rabinal v. Guatemala, Judgement of the IACtHR, 30 November 2016, at para. 216; Hacienda Brasil Verde Workers v. Brazil, Judgement of the IACtHR, 20 October 2016, at paras. 249 and 413. 48 In the Matter of El Sayed, Judgement of the Special Tribunal for Lebanon, 15 April 2012, para. 28 and 29. 49 Several authors have pointed out that it would be absurd and artificial to assign a higher normative force to a rule without giving it the means to effectively deploy its effects. In this sense, see, in particular Pierre-​Marie Dupuy “Le Jus Cogens, les Mots et les Choses : Où en est le Droit Impératif devant la Cour Internationale de Justice près d’un Demi-​Siècle après sa Proclamation?” in Enzo Cannizzaro (ed.), The Present and Future of Jus Cogens (Sapienza Università editrice, 2015), at 120–​121; Alexander Orakhelashvili “State Immunity and International Public Order” (2002) 45 German Yearbook of International Law 227, at 257; Antonio Cassese Self-​Determination of Peoples: A Legal Appraisal (Cambridge University Press, 1996), at 140. 50 Prosecutor v. Anto Furundžija, Judgement of the International Criminal Tribunal for the Former Yugoslavia, 10 December 1998, at para. 153: “It should be noted that the prohibition of torture laid down in human rights treaties enshrines an absolute right, which can never be derogated from, not even in time of emergency (on this ground the prohibition also applies to situations of armed conflicts). This is linked to the fact (…) that the prohibition

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the prohibition of torture carries specific consequences in the event of a violation. At the inter-​State level, it deprives of validity any legislative, administrative or judicial act authorising or tolerating the practice of torture or granting amnesty to torturers. Such acts should not be recognised and engage the responsibility of the State.51 At the individual level, i.e. that of criminal responsibility, it establishes the universal jurisdiction of States against torturers, as any State “is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction”.52 For the sake of brevity, only two areas will be quickly discussed here from the perspective of the icj jurisprudence: the law of responsibility and the law of immunities. Firstly, in the area of international State responsibility, the icj endorsed the codification carried out in the 2001 ilc Articles on Responsibility of States for Internationally Wrongful Acts. Thus, in its 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court recognised Israel’s violation of erga omnes obligations, namely “the obligation to respect the right of the Palestinian people to self-​ determination, and certain of its obligations under international humanitarian law”.53 Although the icj did not make reference to peremptory law, the terminology that it has chosen to determine the consequences of such violations is similar to that of the ilc Articles adopted three years earlier, relative to “[s]‌erious breaches of obligations under peremptory norms of general international law”.54 In phase with Article 26 of the ilc Articles, the icj considered that Israel could not invoke the right of self-​defence or the state of necessity to exclude the illegality of the construction of the wall.55 Moreover, as in Article

51 52 53 54

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on torture is a peremptory norm or jus cogens. This prohibition is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture” (para. 144); “The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from by States through international treaties or local or special customs or even general customary rules not endowed with the same normative force”. Id., at para. 155. Id., at para. 156. Wall Advisory Opinion (above note 40), at para. 155. This is the formulation of the title of Chapter iii of the Part Two of the Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001), Chapter iv. Wall Advisory Opinion (above note 40), at paras. 139–​140.

360 Maia 41 of the ilc Articles, the Court also considered, “[g]iven the character and the importance of the rights and obligations involved”, that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.56 These obligations, by weighing on the international community and not on the breaching State, are far from being an “aggravated” responsibility.57 Secondly, in the case of immunities, the question of whether the violation of peremptory norms can invalidate the immunity that a State or its organs may claim under international law is still debated.58 Admittedly, outside of

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Id., at para. 159. The IACtHR has developed an interesting jurisprudence for sanctioning the offending State with modalities that are close to those of aggravated responsibility. See Elisabeth Lambert Abdelgawad and Kathia Martin-​Chenut (eds.) Réparer les Violations Graves et Massives des Droits de l’Homme: la Cour Interaméricaine, Pionnière et Modèle (Société de Législation Comparée, 2010). Some defend, under the principle ubi jus ibi remedium, that the peremptory nature of the breached substantive norm would automatically result in the peremptory nature of the resulting procedural norm, so that the State is not assured of total impunity. See Lorna McGregor “Torture and State Immunity” (2007) 18 European Journal of International Law 903, at 906–​912; Carlos Espósito “Jus Cogens and Jurisdictional Immunities of States at the International Court of Justice: ‘A conflict Does Exist’ ” (2011) 21 Italian Yearbook of International Law 161; dissenting opinion of Judge ad hoc Van den Wyngaert in the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgique), icj Reports 2002, 3, at para. 36). Others, however, invoke the existence of various remedies under international law, such as criminal repression or diplomatic protection, in order to dissociate the right of access to justice from the nature of the violated norm. See, in this regard, Hazel Fox The Law of State Immunity (Oxford, 2008), at 141; Carlo Focarelli “Immunité des États et Jus Cogens: La Dynamique du Droit International et la Fonction du Jus Cogens dans le Processus de Changement de la Règle sur l’immunité Juridictionnelle des États Étrangers” (2008) 112 Revue Générale de Droit International Public 761, at 764. While Draft Article 7 of the Draft Articles on the Immunity of State officials from Foreign Criminal Jurisdiction, provisionally adopted, (Report of the International Law Commission, Sixty-​Ninth Session, General Assembly Official Records (A/​72/​10) (2017), Chapter vii), provides for what may be termed a jus cogens exception for immunity ratione materiae, it remains to be seen whether the final text of the ilc will retain this provision. Moreover, the 2004 Convention on Jurisdictional Immunities of States and Their Property, adopted by the UN General Assembly in 2004, does not provide for any exception in the case of violations of peremptory norms.

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jus cogens, there is nothing that could prevent a State from expressly waiving its sovereign immunity in the context of a case or by becoming a party to a treaty reducing its scope.59 Nonetheless, the question that arises under customary international law is whether a State or its organs remain immune from judicial and enforcement proceedings when they are accused of violating peremptory norms.60 To this question, the icj’s response remained extremely cautious, taking care to distinguish between the substantive rules of jus cogens and the procedural rules of immunity. In 2002, in the Arrest Warrant case, a Belgian national judge had issued an arrest warrant against the then Minister of Foreign Affairs of Congo. The latter was accused of having committed war crimes and crimes against humanity which, according to Belgian law, allowed the prosecution of the accused on the basis of universal jurisdiction. In this case, the icj held, contrary to Belgium’s claim, that [i]‌t has been unable to deduce from this practice that there exists under customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity”.61 The icj stressed, however, that

59

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Some treaties specify the irrelevance of the official capacity of the agent who committed the act: 1948 Convention on the Prevention and Punishment of the Crime of Genocide, Article vi; 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia, Article 7; 1994 Statute of the International Criminal Tribunal Rwanda, Article 6; 2002 Statute of the Special Court for Sierra Leone, Article 6; 1998 Statute of the International Criminal Court of 1998, Article 27 on the “Irrelevance of official capacity” (“Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”, para. 2). Other treaties imply waiving immunity, including the 1984 Convention against Torture of 1984, Articles 1 and 7; 1949 Geneva Conventions, Article 49 of the First Geneva Convention, Article 50 of the Second Geneva Convention, Article 129 of the Third Geneva Convention and Article 146 of the Third Geneva Convention. This problem has mainly arisen in the case of violations of international human rights law, before national and international bodies, in both civil and criminal proceedings. Although there is no homogeneous jurisprudence on the subject, as some jurisdictions have rejected that international crimes can be considered as acts de jure imperii, most of them concluded that there was, for now, no exceptions to the general rule of immunity stemming from the violation of peremptory norms. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), icj Reports 2002, p. 3, at para. 58.

362 Maia the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity in respect of any crimes they might have committed, irrespective of their gravity. Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.62 In 2012, in the case concerning the Jurisdictional Immunities of the State, the icj again showed its commitment to the principle of immunity.63 In that case, the Greek and Italian Courts of Cassation had accepted civil claims seeking reparation for crimes committed by the Nazis of the German Third Reich during the Second World War. On the basis of the substantive importance of the norms that had allegedly been violated, both national judges considered that these crimes were not covered by sovereign immunities.64 The international 62

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Id., at para. 60. The icj provides important clarifications on this point: “the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter vii of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention”, (para. 61). Jurisdictional Immunities of the State (Germany v. Italy; Greece (intervening), icj Reports 2012, p. 99, at para. 93. See on this subject: Ilias Bantekas “Prefecture of Voiotia v. Federal Republic of Germany, Case No 137/​1997”, (1998) 92 American Journal of International Law 765; Ilias Bantekas and Maria Gavouneli “Prefecture of Voiotia v. Federal Republic of Germany, Case nº 11/​ 2000” (2001) 95 American Journal of International Law 198; Massimo Iovane “The Ferrini Judgement of the Italian Supreme Court: Opening Up Domestic Courts to Claims of Reparation for Victims of Serious Violations of Human Rights” (2004) 14 Italian Yearbook of International Law 165; Pasquale de Sena and Francesca de Vittor “State Immunity

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crimes in question were serious violations of peremptory norms that could not be characterised as sovereign acts de jure imperii, as they had to be considered offences contrary to universal values shared by the international community as a whole. It should be remembered that, in both cases, the crimes had been committed in the territory of the forum State, which allowed national judges to presume the existence of a customary exception to sovereign immunities, which is the case when the forum State is the same as the one on whose territory the unlawful conduct occurred. In 2008, Germany requested the icj to declare that Italy had failed to comply with its immunity from jurisdiction under international law by allowing civil claims against it to be brought before Italian courts and by taking measures of forced execution against a German State property located in Italian territory, as well as by declaring the enforceability in Italy of civil law decisions issued by Greek courts against Germany for acts similar to those resulting in the actions brought before the Italian courts. In the Jurisdictional Immunities case, the icj held that the refusal of the Italian courts to grant immunity to Germany constituted a breach of Italy’s international obligations. According to the icj, as it stands in customary international law, there is no conflict between an imperative (substantive) rule and the customary (procedural) rule requiring a State to grant immunity to another. In other words, a State is not deprived of immunity merely because it is accused of serious violations of human rights or international humanitarian Law: Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful”.65

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and Human Rights: The Italian Supreme Court Decision on the Ferrini Case” (2005) 16 European Journal of International Law 89. Jurisdictional Immunities of the State (above note 63), at para. 93.

364 Maia By decoupling substantive rules from procedural rules, the icj insisted on the fact that granting immunities to a foreign State, in accordance with customary international law, does not amount to a derogation from jus cogens. It does not contradict the vclt, nor does it amount to finding a situation created by the violation of a peremptory rule to be lawful or to render aid or assistance in maintaining that situation, and thus does not contradict the ilc’s Articles on State Responsibility.66 It is therefore clear from case-​law that the consecration of jus cogens in the vclt has not had automatic extensions in terms of procedural rules: the peremptory nature of a norm does not systematically endow it with procedural effects, and has not been used neither to overturn the principle of consent to the icj’s jurisdiction nor to exclude well-​established doctrines of international law.67 4

Conclusion

This brief analysis highlights that peremptory norms have not been a mere fad. They have not remained unapplied since 1969, which contradicts Ian Brownlie’s prediction that jus cogens is “a vehicle that hardly ever leaves the garage”.68 On the contrary, jus cogens has indeed left the garage and is now taking new roads where the non-​derogability resulting in the nullity of the violating treaty seems incidental in view of the potential, still underexploited, of the effects of this notion outside the conventional sphere, effects that will 66

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Idem. The dissenting opinion of Judge Cançado Trindade criticises the moderation shown here by the icj. He insisted that State immunities are only a prerogative or a privilege. However, “there can be no prerogative or privilege of State immunity in cases of international crimes, such as massacres of the civilian population, and deportation of civilians and prisoners of war to subjection to slave labour: these are grave breaches of absolute prohibitions of jus cogens, for which there can be no immunities” (para. 297). He added: “Jus cogens stands above the prerogative or privilege of State immunity, with all the consequences that ensue therefrom, thus avoiding denial of justice and impunity” (para. 299). Armed Activities on the Territory of the Congo (above note 17), separate opinion of Judge ad hoc Dugard: “the Court, in the present instance, has rightly held that although norms of jus cogens are to be recognized by the Court, and presumably to be invoked by the Court in future in the exercise of its judicial function, there are limits to be placed on the role of jus cogens. The request to overthrow the principle of consent as the basis for its jurisdiction goes beyond these limits. This, in effect, is what the Court has held” (para. 14). Ian Brownlie “Comments” in Antonio Cassese and Joseph H.H. Weiler (eds.) Change and Stability in International Law-​Making (Walter de Gruyter, 1988), at 110.

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certainly remain marked by the dichotomy between voluntarism and objectivism that runs through international law.

Acknowledgements

This article is the English adaptation of a contribution to the collection of essays edited by Thierry Garcia and Ludovic Chan-​Tung La Convention de Vienne sur le Droit des Traités: Bilan et Perspectives 50 ans après son Adoption (Pedone, 2019).

Chapter 14

The Unilateral Invocation of Jus Cogens Norms Michael Wood 1

Introduction

Writing in 1981, Giorgio Gaja stated that “[b]‌eyond the [Vienna] Convention, there is clearly no prospect of the judicial guarantee ever becoming an element of the concept of peremptory norms.”1 Some 40 years later, Professor Dire Tladi, Special Rapporteur of the International Law Commission on the topic Peremptory norms of general international law ( jus cogens), wrote that -​ A problem often levelled against the idea of peremptory norms is that it can threaten the stability of international law if States can unilaterally free themselves from obligations … by claiming that the obligation in question conflicts with peremptory norms of international law. This problem of auto-​interpretation applies generally to public international law due to the lack of compulsory jurisdiction by international courts without consent. The Vienna Convention attempted to address this issue by including a dispute settlement provision under which a dispute concerning the application of Articles 53 or 64 would, if not resolved amicably, trigger the jurisdiction of the International Court of Justice. As a treaty rule, Article 66 could not be made applicable to a set of Draft Conclusions that did not constitute a binding instrument. At the same time, given the significance of the issue, the Draft Conclusions could not remain silent.2

1 Giorgio Gaja “Jus Cogens Beyond the Vienna Convention” (1981) 172 Collected Courses of the Hague Academy of International Law 271, at 286. 2 Dire Tladi “The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine” (2020) 89 Nordic Journal of International Law 244, at 268. Gaja (above note 1), at 289, predicted the importance of the matter: “while [the judicial guarantee in the Vienna Convention] does not constitute an element of the concept of peremptory norm either under the Vienna Convention or beyond it, some States may object to the definition of a norm as peremptory when there is no such guarantee.”

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_015

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In 2019 the International Law Commission (“ilc” or “Commission”) sought to include a kind of “judicial guarantee” in conclusion 21 of its first reading Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens).3 This effort proved controversial, both among members of the Commission and among States commenting on the draft. Many things have changed in the 50 years between the adoption of the Vienna Convention on the Law of Treaties in 1969 (“vclt” or “Vienna Convention”) and the adoption of the ilc’s first-​reading text on jus cogens in 2019. Not only has the notion of jus cogens taken root in international law, but there is now more readiness, on the part of some previously hesitant States, to commit to compulsory procedures for international dispute settlement. Others, however, have become more reluctant. Still, the actual effect of the solution to the “problem” of auto-​interpretation that was devised at the Vienna Conference on the Law of Treaties (1968/​69) was limited; it was not retrospective, and only applied to treaties to which the Vienna Convention itself applies.4 How effective the solution devised by the ilc in the context of its work on the topic Peremptory Norms of General International Law (Jus Cogens) will be –​if it is retained in the final text of the conclusions –​remains to be seen, especially since it is intended to operate beyond the law of treaties, and in the context of a text that does not aspire to be binding as such. The present contribution first recalls the general problem of “auto-​ interpretation” or “auto-​determination” in international law. It then offers a few brief observations on jus cogens. Next, it evokes the “solutions” adopted, in the specific context of claims to the invalidity or termination of treaties said to be in conflict with rules of the jus cogens, both by the ilc in its 1966 Draft Articles on the Law of Treaties (Draft Articles 50 and 62) and by States at the Vienna Conference on the Law of Treaties (Articles 65 and 66 of the Vienna Convention, read in conjunction with articles 42 and 71). Then the contribution considers how “auto-​interpretation” has been addressed within the ilc’s 2019 first-​reading Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens). It is suggested that even if the ilc’s first-​ reading draft conclusions “could not remain silent” on this matter,5 devising a satisfactory and acceptable solution within the framework of a non-​binding 3 Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), Chapter v. 4 In so far as rules of customary international law on jus cogens may be reflected in the 1969 Vienna Convention on the Law of Treaties, it is difficult to see how they could include the procedural safeguard in article 66(a) of the Vienna Convention on the Law of Treaties. 5 Tladi (above note 2).

368 Wood text is no easy matter. Looking forward, some modest suggestions are made for possible improvements that could be made on second reading. 2

The Challenge of “Auto-​Interpretation” /​“Auto-​Determination”

The international legal system lacks general compulsory procedures entailing binding decisions for the settlement of disputes. In the absence of such procedures, States are left to assess for themselves the legality of their conduct (and that of others). There is little to deter States from seeking unilaterally to invoke legal positions (something not uncommon in all legal systems), and from proceeding to act upon their subjective appreciation of the facts and law without real constraint, however specious their arguments. The powerful, but not only the powerful, may “get away with it”. Appeals to reasonableness or “good faith” are themselves likely to be subjective. The potential for abuse is thus inherent in the very nature of the international legal system. “Auto-​interpretation” or “auto-​determination” (the two terms seem to be used interchangeably) is often viewed as a serious weakness in international law, the source of instability and uncertainty, undermining the rule of law. Yet it reflects a reality of international relations in the 21st century, as it did in 1945, 1920, and earlier; it flows from the horizontal and decentralized nature of the international legal system.6 This weakness is unlikely to change anytime soon; proposals that States accept the “compulsory” jurisdiction of the International Court of Justice under the Optional Clause without reservations have largely fallen on deaf ears. We see auto-​interpretation in many areas of international law, most prominently in relation to the use of force (the jus ad bellum). States initially decide for themselves whether the conditions for the right of self-​defence are met; they may even consider themselves free to act on the basis of a “respectable” or “tenable” legal view; and they are rarely called to account in any serious way, though it has been suggested that they should be ready to explain themselves, 6 Yoshifumi Tanaka The Peaceful Settlement of International Disputes (Cambridge, 2018), at 4 (“As there is no higher authority above individual States, rules of international law, customary or conventional, are interpreted and applied by States on their own. This is called auto-​ interpretation/​auto-​application.”). See also Antonios Tzanakopoulos Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford, 2011), at 114–​122, and 144 (“I‌n the decentralized international legal system, the prima facie arbiter of legality of its own and anyone else’s action is the State itself”). See also Pellet (A/​c n.4/​s r.2305), at para. 36 (“the international community was not built on the same model as the State, where the judge was the guarantor of the legal order and the State accepted the law as interpreted by the judge. In the international community, on the contrary, each sovereign State assessed the legality of its own conduct and that of its partners”).

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at least after the event.7 In some fields, such as the law of the sea, compulsory dispute settlement may be available under treaty provisions; but even where such arrangements are in principle effective, they may in practice be undermined by dissatisfied members of the international community. Even those taking countermeasures, and doing so at their own risk,8 are rarely called out even when the countermeasures are clearly unjustifiable. In the past, auto-​interpretation was reflected in the exclusion of “vital interests” from international dispute settlement provisions, as well as in self-​judging domestic reservations to the acceptance of the Optional Clause (e.g., the “Connally” reservation),9 and more recently in the proposed US self-​ judging reservation to the dispute settlement provisions of the United Nations Convention on the Law of the Sea (unclos) with respect to military activities.10 As Judge Simma said in the Interim Accord case (speaking of the exceptio non adimpleti contractus principle): What we encounter at the level of international law, however, will all too often be instances of non-​performance of treaty obligations accompanied by invocation of our principle, but without availability of recourse to impartial adjudication of the legality of these measures. Absent the leash of judicial control, our principle will thus become prone to abuse; the issue of legality will often remain contested …”.11 7 8

9 10

11

Michael Wood “The International Law on the Use of Force: What Happens in Practice?” (2013) 53 Indian Journal of International Law 345, at 348–​349. In para. 3 of the Commentary to Article 49 of the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​third Session, General Assembly Official Records (A/​56/​10) (2001), Chapter iv, the ilc said that “[a]‌State taking countermeasures acts at its peril, if its view of the question of wrongfulness turns out not to be well founded. A State which resorts to countermeasures based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for its own wrongful conduct in the event of an incorrect assessment.” Christian Tomuschat “Article 36” in Andreas Zimmermann and Christian Tams (eds.) The Statute of the International Court of Justice. A Commentary (Third Edition, Oxford, 2019), at 773, Marginal Note 98. The US executive proposed to the Senate for its advice and consent that the US accession to unclos be subject to the following declaration: “The United States … declares that its consent to accession to [unclos] is conditioned upon the understanding that, under article 298(1)(b), each State Party has the exclusive right to determine whether its activities are or were ‘military activities’ and that such determinations are not subject to review.”: Senate Executive Reports on the Law of the Sea Convention 2004 and 2007 reproduced in J. Ashley Roach Excessive Maritime Claims (Fourth Edition, Brill, 2020), Appendix 9. Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), icj Reports 2011, Separate Opinion of Judge Simma, p. 644, at para. 13.

370 Wood Thus, the possibility of unilateral invocation of jus cogens is but one consequence of the general absence of compulsory jurisdiction of courts and tribunals in public international law. Yet given the potentially far-​reaching effects of the invocation of jus cogens it is often seen as a particularly serious consequence, and one that must be addressed as far as possible if the very notion of jus cogens is to remain credible.12 Notwithstanding the absence of general compulsory dispute settlement in the international legal system, States do from time to time insist on the need for effective dispute settlement provisions in particular contexts. A prime example was the Third United Nations Conference on the Law of the Sea, where a number of States insisted on the inclusion of compulsory procedures entailing binding decisions for most disputes.13 An earlier example, described below, is to be found in the context of Part V of the Vienna Convention on the Law of Treaties (invalidity, termination and suspension of the operation of treaties). 3

Jus Cogens14

Some may be alarmed that jus cogens now seems to leave the garage rather more frequently than in the past,15 though it remains the case that it rarely if 12

Para. 1 of Commentary to Draft Conclusion 21 of the Draft Conclusions on Peremptory Norms (above note 3) recalls that at the 1968/​69 Vienna Conference “States generally supported the provisions relating to peremptory norms of general international law (jus cogens) and concerns about articles 53 and 64 arose from the concern that the right to invoke the invalidity of treaties could be abused by States unilaterally invoking articles 53 and 64 and thus threatening the stability of treaty relations.” 13 Part xv of the 1982 United Nations Convention on the Law of the Sea. 14 Writing on jus cogens is extensive, but mostly theoretical. For useful introductions, see the main commentaries on the Vienna Convention: Mark Villiger Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill, 2009); Eric Suy “Article 53” in Olivier Corten and Pierre Klein (eds.) The Vienna Conventions on the Law of Treaties. A Commentary (Second Edition, Oxford, 2011); Kirsten Schmalenbach “Article 53” in Oliver Dörr and Kirsten Schmalenbach (eds.) Vienna Convention on the Law of Treaties. A Commentary (Second Edition, Springer, 2018). See also Richard Kearney and Robert Dalton “The Treaty on Treaties” (1970) 64 American Journal of International Law 495; Ian Sinclair The Vienna Convention on the Law of Treaties (Second Edition, Manchester, 1984), at 203–​242 (dealing also with dispute settlement in connection with jus cogens); Daniel Costelloe Legal Consequences of Peremptory Norms in International Law (Cambridge, 2017). 15 Ian Brownlie “Comments” Antonio Cassese and Joseph Weiler (eds.) Change and Stability in International Law-​Making (Walter de Gruyter, 1988), at 110, described jus cogens as “the vehicle that hardly ever leaves the garage”.

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ever reaches its destination.16 To change the metaphor, the genie having left the bottle (chiefly, it seems, released by the lucubrations17 of writers, assisted on its way by the ilc and the Vienna Conference), jus cogens seems here to stay. This is not the place to weigh the overall advantages and disadvantages of this “joker in the pack”. For some, is it a wonderfully progressive notion; for others, a virus within the international legal system; for yet others, it is of no real consequence.18 For present purposes, it suffices to note that its potential to disrupt the legal system (by invalidating any inconsistent rights and obligations) is considerable.19 If abused (as it sometimes is), the notion risks undermining the stability and predictability of international law, not just or even especially in relation to treaties. For example, if (quod non) it were generally accepted that a jus cogens rule trumped binding decisions of the Security Council notwithstanding Article 103 of the Charter, that might reduce the collective security system under the Charter to the level of the failed League of Nations.20

16

17

18

19

20

Writing in 2016, James Crawford said: “Peremptory norms have, to this day, remained something of a curiosity of the law. Extensive is the literature on the content of peremptory norms, yet few are the instances in which a court or tribunal has applied the concept so as to determine the outcome of a case. Universal is the support for these norms’ existence, yet divergent are the views on the range of their legal effects”: “Foreword” Costelloe (above note 14), at xiii. The word used by Chief Justice Fuller in The Paquete Habana, Judgment of the United States Supreme Court, 8 January 1900, at 720 (having asserted that it was “needless to review the speculations and repetitions of the writers on international law”, Fuller cj added that “[t]‌heir lucubrations may be persuasive, but not authoritative.”). See for a typical sceptical observation, admittedly over 20 years ago, Mark Weisburd “The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-​Herzegovina” (1995) 17 Michigan Journal of International Law 1, at 1: “the concept is intellectually indefensible –​at best useless and at worst harmful in the practical conduct of international relations”. Another such view was encapsulated in the title of Anthony D’Amato’s article from 1990 “It’s a Bird, It’s a Plane, It’s Jus Cogens!” (1990/​1991) 6 Connecticut Journal of International Law 1. As Sinclair put it, “jus cogens is neither Dr Jekyll nor Mr Hyde; but it has the potentialities of both. If it is invoked indiscriminately and to serve short-​term political purposes, it could rapidly be destructive of confidence in the security of treaties; if it is developed with wisdom and restraint in the overall interest of the international community it could constitute a useful check upon the unbridled will of individual States”: Sinclair (above note 14), at 223. Among those who question the view that jus cogens norms prevail over binding decisions of the Security Council despite Article 103 of the Charter of the United Nations, are Nico Krisch, Selbstverteidigung und Kollektive Sicherheit (Springer, 2001), at 305–​313; Michael Wood “The UN Security Council and International Law: Lecture 3” 2006 Hersch

372 Wood A major problem with jus cogens is how to identify those rules that have that status. There seems to be a proliferation of invocations of jus cogens, including to avoid legal obligations; claims are not only made in connection with treaties, but beyond the Vienna Convention in fields such as State responsibility and unilateral acts of States. Jus cogens norms have also been invoked, thus far largely unsuccessfully, to promote what are seen as “progressive” positions in such fields as State immunity and the jurisdiction of international courts and tribunals.21 The late Hugh Thirlway has remarked, referencing a separate opinion at the icj, that “as in quite a lot of areas where jus cogens is invoked, the term is used as though it meant ‘very important’ ”.22 4

The ilc’s Work on the Law of Treaties and the Vienna Conference on the Law of Treaties

As Sinclair pointed out, “[t]‌here has been a vast outpouring of studies on the concept of jus cogens in international law, stimulated in large measure by the activities of the International Law Commission [in the 1960s] on the law of treaties.”23 Indeed, jus cogens might have remained with the theorists if the ilc had not taken up the matter in the course of its work on the law of treaties. The fear of unilateral, subjective, and arbitrary invocation of rules of jus cogens came to a head in the course of preparations for the Vienna Conference

Lauterpacht Memorial Lectures, available at https://​www.lcil.cam.ac.uk/​press/​events/​ 2006/​11/​lauterpacht-​lectures-​2006-​united-​nations- ​security-​council-​and-​international-​ law-​sir-​michael-​wood (accessed 6 October 2020); Costelloe (above note 14), at 128–​136. See also, in this volume, Daniel Costelloe “Peremptory Norms and Resolutions of the United Nations Security Council” (Chapter 17). 21 The icj rejected Italy’s jus cogens argument in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, icj Reports 2012, p. 99 at paras. 92-​97 (finding that there was no conflict between jus cogens rules forming part of the law of armed conflict and Germany’s immunity). Judge Pellonpää, in his concurring opinion in Al-​Adsani v. United Kingdom (joined by Judge Bratza), after considering the position in the United States, said that “[a]‌lthough giving absolute priority to the prohibition of torture may at first sight seem very ‘progressive’, a more careful consideration tends to confirm that such a step would also run the risk of proving a sort of ‘Pyrrhic victory’.” 22 Hugh Thirlway The Sources of International Law (Second Edition, Oxford, 2019), at 185 (note 87). 23 Sinclair (above note 14), at 205.

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on the Law of Treaties, but did not come out of the blue at the Conference: the settlement of disputes played a significant role within the ilc when it was preparing the Draft Articles on the Law of Treaties. The need to address auto-​ interpretation can be traced back to Hersch Lauterpacht’s 1953 report to the ilc as Special Rapporteur on the Law of Treaties.24 That report prompted a broad debate (not just over jus cogens) concerning the application of dispute settlement to all of Part v (Invalidity, Termination, and Suspension of the Operation of Treaties).25 Successive ilc Special Rapporteurs on the Law of Treaties (Lauterpacht,26 Fitzmaurice,27 Waldock28) all considered it essential that such claims of treaty invalidity, termination or suspension be subject to compulsory dispute settlement.29 In its final Draft Articles on the Law of Treaties (1966), the Commission’s main article on jus cogens, Draft Article 50, read: A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.30 The Commission’s Commentary to Draft Article 50 in its 1966 Draft Articles records that -​ if some Governments in their comments have expressed doubts about the advisability of this article unless it is accompanied by provision for

24 25 26 27 28 29 30

Report of Special Rapporteur (Hersch Lauterpacht) on the Law of Treaties (A/​c n.4/​63) (Draft Article 15). For a full account, see Shabtai Rosenne “The Settlement of Treaty Disputes under the Vienna Convention of 1969” (1971) 31 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 1. Article 15 in the Lauterpacht Report (above note 24) read: “A treaty, or any of its provisions, is void if its performance involves an act which is illegal under international law and if it is declared so to be by the International Court of Justice.” Draft Article 17 in the Third Report of the Special Rapporteur (Gerald Fitzmaurice) on the Law of Treaties (A/​c n.4/​115 and Corr.1) (1958). Draft Article 25 in the Second Report of Special Rapporteur (Humphrey Waldock) on the Law of Treaties (A/​c n.4/​156 and Add.1-​3) (1963). This has been well described by Rosenne (above note 25), at 53–​58. This draft has been described as “perfectly adapted to the idiosyncrasies of a hypocritical age.” George Schwarzenberger International Law and Order (Praeger, 1971), at 50.

374 Wood independent adjudication, only one questioned the existence of jus cogens in international law.31 In an effort to square the auto-​interpretation circle, Special Rapporteur Waldock proposed an ingenious solution in his second report (1963).32 Paragraphs 4 to 6 of his draft article 25 are in fact quite similar to the ilc’s 2019 draft conclusion 21. Waldock’s article 25 read: Article 25 Annulment, denunciation, termination or suspension of treaty obligations under a right arising by operation of law 1. If a party to a treaty claims to have a right to annul, denounce, terminate, withdraw from or suspend a treaty under any of the provisions of articles 5 to 9, 11 to 14, or 19 to 22 of the present articles, it shall be bound first to give notice of such claim to the other party or parties to the treaty. … 3. If no party makes any objection, or if no reply is received before the expiry of the period specified in the notice, the claimant party shall be free to carry out the action proposed in its previous notice. In that event, it shall address a further communication to the other party or parties in the manner laid down in paragraph 2, stating that, in accordance with its previous notice, it annuls or, as the case may be, denounces, terminates, withdraws from or suspends the treaty. 4. If, however, objection has been raised by any party, the claimant party shall not be free to carry out the action specified in the notice referred to in paragraph 1, but must first –​

31

32

Para 1 of the Commentary to Draft Article 50 of the 1966 Draft Articles on the Law of Treaties, Report of the International Law Commission, Eighteenth Session, General Assembly Records (A/​6309/​Rev.1) (1966), Chapter ii. For the views of governments, see Fifth Report of the Special Rapporteur (Humphrey Waldock) on the Law of Treaties (A/​c n.4/​183 and Add.1-​4) (1966). In respect of Article 37 (at 20–​23), on jus cogens, the Governments that, in their comments on the first reading Draft Articles, appeared to insist upon independent adjudication were Luxembourg, at 20; Turkey, at 21; United Kingdom, at 21; United States, at 21. The one Government which, in its comments, was thought to question the very existence of jus cogens was Luxembourg. France, on the other hand, regarded the provision on jus cogens “as one of the genuinely key provisions of the draft articles”, at para. 22. Rosenne (above note 25), at 42. See Article 25 in the Second Waldock Report (above note 28).

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(a) seek to arrive at an agreement with the other party or parties by negotiation; (b) failing any such agreement, offer to refer the dispute to inquiry, mediation, conciliation, arbitration or judicial settlement by an impartial tribunal, organ or authority agreed upon by the States concerned. 5. If the other party rejects the offer provided for in paragraph 4 (b), or fails within a period of three months to make any reply to such offer, it shall be considered to have waived its objection; and paragraph 3 shall then apply. 6. If, on the other hand, the offer provided for in paragraph 4 (b) is accepted, the treaty shall continue in force, pending the outcome of the mediation, conciliation, arbitration or judicial settlement of the dispute; provided always, however, that the performance of the obligations of the treaty may be suspended provisionally –​



(a) by agreement of the parties; or (b) in pursuance of a decision or recommendation of the tribunal, organ or authority to which the mediation, conciliation, arbitration or judicial settlement of the dispute has been entrusted.

This proposal did not prosper on second reading. In fact, “[n]‌othing of [paragraphs 4 to 6] survived the scrutiny of the Drafting Committee.”33 Instead, Article 62(3) of the ilc’s 1966 draft articles simply read: 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. The dilemma was well summarised by the ilc in its commentary to this provision.34 It concluded that it would be unrealistic to go beyond article 33 of the UN Charter. 33 34

Rosenne (above note 25), at 42. See paras 1, 3 and 6 of the Commentary to Draft Article 62 of the Draft Articles on the Law of Treaties (above note 31) (“… the Commission considered it essential that the present articles should contain procedural safeguards against the possibility that the nullity, termination or suspension of the operation of a treaty may be arbitrarily asserted as a mere pretext for getting rid of an inconvenient obligation. … In 1963, some members of the Commission were strongly in favour of recommending that the application of the present

376 Wood The ilc’s Draft Article 62(3) was seen by many States, particularly from the Western Group, as a wholly inadequate safeguard against arbitrary claims for invalidity, termination or suspension of treaties. It was the object of intensive negotiation at both sessions of the Vienna Conference, in 1968 and especially in 1969.35 The settlement of disputes became a critical issue at the Vienna Conference, not least in relation to the invocation of jus cogens, and after much negotiation, a proposal for what became Article 66 was put forward at the very last minute by Ghana, Ivory Coast, Kenya, Kuwait, Lebanon, Morocco, Nigeria, Sudan, Tanzania and Tunisia –​a proposal that saved the day, and saved the conference.36 In its 1997 judgment in the Gabčikovo-​Nagymaros Project case, the International Court of Justice –​in a rather obscure passage –​said: Both Parties agree that Articles 65 to 67 of the Vienna Convention on the Law of Treaties, if not codifying customary law, at least generally reflect customary international law and contain certain procedural principles which are based on an obligation to act in good faith.37 The Court then proceeded to recall what it had said about time periods and good faith in its Advisory Opinion concerning the who-​Egypt Agreement;38 it may be these are the “certain procedural principles” that it had in mind rather than those of the Vienna Convention. In any event, in the Democratic Republic of Congo v. Rwanda case, the Court held in no uncertain terms that the rules in article 66 were not declaratory of customary international law.39

35 36

37 38 39

articles should be made subject to compulsory judicial settlement by the International Court of Justice, if the parties did not agree upon another means of settlement. Other members, however, … expressed the view that in the present state of international practice it would not be realistic for the Commission to put forward this solution of the procedural problem.”). Sinclair (above note 14), at 218–​220; Hélène Ruiz Fabri “Enhancing the Rhetoric of Jus Cogens” (2012) 23 European Journal of International Law 1049; Rosenne (above note 25); Dörr and Schmalenbach (above note 14), at 1233–​1242. For accounts of this aspect of the Vienna Conference, see Rosenne (above note 25); Sinclair (above note 14), at 226–​236; Kearney and Dalton (above note 14), at 545–​555. The sensitivity and importance of the issue were once again apparent from the many reservations made to article 66 of the Vienna Convention and the strong objections to such reservations. Gabčikovo-​Nagymaros Project (Hungary/​Slovakia), icj Reports 1997, p. 7, at para. 109. Interpretation of the Agreement of 25 March 1951 between the who and Egypt, Advisory Opinion, icj Reports 1980, p. 73, at para. 49. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, icj Reports 2006, p. 6,

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A similar result to that adopted in 1969 was achieved at the Vienna Conference which adopted the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,40 though with provision for arbitration and icj advisory opinions reflecting the fact that international organizations may not be parties to contentious proceedings before the icj. The debates in the ilc and at the 1986 Vienna Conference are interesting, including for the light they shed on the 1969 Convention.41 5

The Work on the ilc’s Jus Cogens Topic Thus Far

After its work on the law of treaties, the ilc addressed aspects of jus cogens in the context of a number of other topics: State responsibility;42 unilateral declarations of States capable of creating legal obligations;43 fragmentation of international law;44 reservations to treaties;45 and identification of customary international

40 41 42

43 44

45

at para. 129 (“in the present case the rules contained in the Vienna Convention are not applicable, save in so far as they are declaratory of customary international law. The Court considers that the rules contained in Article 66 of the Vienna Convention are not of this character. Nor have the two Parties otherwise agreed to apply Article 66 between themselves”). Para 3 of the Commentary to Draft Conclusion 21 of the Draft Conclusions on Peremptory Norms (above note 3), as adopted on first reading, in so far as it may be seen as going further is therefore misleading. Not yet in force. See, for example, para 3 of the Commentary to Draft Article 66 of the 1982 Draft Articles on the Law of Treaties between States and International Organisations or between Organizations, noting that some members of the ilc rejected the solution. See Arts 40 and 41 of the Articles on State Responsibility (above note 8); See also Arts 40 and 41 of the Articles on the Responsibility of International Organizations, Report of the International Law Commission, Sixty-​third Session, General Assembly Official Records (A/​ 66/​10). Guiding Principle 8 of the Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, Report of the International Law Commission, Fifty-​eighth Session, General Assembly Official Records (A/​61/​10) (2006). Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, Report of the International Law Commission, Fifty-​eighth Session, General Assembly Official Records (A/​61/​10) (2006). Guideline 3.1.5.4 of the Guide to Practice on Reservations to Treaties, Report of the International Law Commission, Sixty-​third Session, General Assembly Official Records (A/​ 66/​10 Add.1) (2011).

378 Wood law.46 In 1993, the ilc considered but decided against taking up a general topic on jus cogens, because it did not think such a topic “would serve any useful purpose at this stage”. It decided that practice did not exist and that a study would be premature.47 Twenty years later, in 2014, the ilc placed jus cogens on its long-​term programme of work, based on a syllabus prepared by Professor Dire Tladi48 and following careful consideration within the Long-​term Programme of Work Working Group. In 2015 the ilc decided to include the topic in its current programme of work and appointed Professor Tladi as Special Rapporteur. While Professor Tladi’s 2014 syllabus made no mention of auto-​interpretation, he did raise the issue in his first report (2016).49 In that report, the Special Rapporteur recalled the concern about the unilateral invocation of Articles 53 and 64 of the Vienna Convention, and how the Vienna Conference had devised a process involving judicial dispute settlement procedures to address this concern.50 In his third report (2018), Professor Tladi noted that whether the processes were customary international law was “at best doubtful”, but was of the view that, given the sensitivity of invalidating treaty relations unilaterally, it was appropriate for the Commission to provide for a similar safeguard within the new draft conclusions.51 He then went on to make two preliminary points: that there was nothing special about jus cogens in this regard (“it is a general problem of international law that arises from auto-​interpretation resulting from a decentralized legal system without a compulsory system of adjudication”52); and that the Vienna Convention provision was limited to the invalidity of a treaty (“article 66 (a) cannot be invoked for the purpose of determining whether a particular norm is a norm of jus cogens or for the purposes of identifying other consequences of jus cogens.”53) 46 47

48 49 50 51 52 53

Draft Conclusion 15(3) of the Draft Conclusions on the Identification of Customary International Law, Report of the International Law Commission, Seventieth Session, General Assembly Official Records (A/​73/​10) (2018). See proposal by Andreas Jacovides “Jus Cogens” 1993 Yearbook of the International Law Commission, Vol ii (Part One), at 213–​220. The proposal by Mr Jacovides did not mention the issues of auto-​determination or dispute settlement, despite their prominence at the Vienna Conference; see also the Conclusion by Mr. Bowett. Jus cogens (Dire Tladi) in Annex to the Report of the International Law Commission, Sixty-​ sixth Session, General Assembly Official Records (A/​69/​10) (2014). First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693). Id., at para. 36. Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​714), at para. 45. Id., para. 48. Id., para. 49.

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Accordingly, in his third report, in a carefully worded proposal for a ‘recommended procedure’, the Special Rapporteur suggested -​ that the Commission recommends, as a practice, that, even in cases where the Vienna Convention does not apply because one or both of the States are not party to the Vienna Convention, the procedure in article 66(a) should be applicable. Any draft conclusion, if adopted, would need to be accompanied by commentary that spells out clearly that the provision is only recommended practice and does not reflect the state of international law. At any rate, this recommended practice would always be subject to the jurisdictional requirements of the International Court of Justice under Article 36 of its Statute, i.e. it could not be made law by operation of the draft conclusions. However, a State that withholds its consent for judicial settlement runs the risk of a State unilaterally declaring a treaty invalid on account of conflict with jus cogens or conversely, its declaration of invalidity of a treaty on account of conflict of jus cogens not being recognized. These practical considerations, coupled with a draft conclusion by the Commission, may encourage both the party seeking to invalidate a treaty, and the party seeking to maintain the treaty, to submit to international adjudication.54 The text proposed by the Special Rapporteur read as follows: Draft conclusion 14 Recommended procedure regarding settlement of disputes involving conflict between a treaty and a peremptory norm of general international law (jus cogens)



54 55

1. Subject to the jurisdictional rules of the International Court of Justice, any dispute concerning whether a treaty conflicts with a peremptory norm of general international law (jus cogens) should be submitted to the International Court of Justice for a decision, unless the parties to the dispute agree to submit the dispute to arbitration. 2. Notwithstanding paragraph 1, the fact that a dispute involves a peremptory norm of general international law (jus cogens) is not sufficient to establish the jurisdiction of the Court without the necessary consent to jurisdiction in accordance with international law.55 Id., para. 52 (emphasis added). Id., para. 160.

380 Wood As frequently happens with proposals from Special Rapporteurs, following the debate in plenary in 2018, Professor Tladi’s draft conclusion 14 was substantially revised by the Drafting Committee.56 The Commission took note of the Drafting Committee’s draft conclusion 14 in 2018, and adopted it on first reading in 2019. It was renumbered draft conclusion 21, but otherwise there was no change. In the 2018 Sixth Committee debate, various positions were taken on draft conclusion 14 by States. As summarised by the Secretariat: Divergent views were expressed with regard to draft conclusion 14 (Procedural requirements) –​some delegations supporting it –​sometimes with qualifications –​while others did not support it for various reasons, for example, that it should be modelled more closely on article 65 of the 1969 Vienna Convention or that it may clearly be identified as a proposal for progressive development. It was further suggested that a procedural paragraph with respect to the invocation of the invalidity of a treaty reflecting the general rules contained in articles 65 and 67 of the Convention could be added –​a remark which also applied to draft conclusions 15 to 17. It was also observed that the draft conclusion might only apply in the context of inter-​State disputes.57 Draft conclusion 21 as adopted on first reading in 2019 reads: Draft conclusion 21 Procedural requirements

1. A State which invokes a peremptory norm of general international law (jus cogens) as a ground for the invalidity or termination of a rule of international law is to notify other States concerned of its claim. The notification is to be in writing and is to indicate the measure proposed to be taken with respect to the rule of international law in question.

56

See Statement (Oral interim report) of the Chairperson of the Drafting Committee, Mr. Charles Chernor Jallow, dated 26 July 2018, at 8–​11, available at https://​legal.un.org/​ docs/​?path=../​ilc/​documentation/​english/​statements/​2018_​dc_​chairman_​statement_​jc_​ 26july.pdf&lang=E (accessed on 5 November 2020). Topical Summary of the Discussion held in the Sixth Committee of the General Assembly during its Seventy-​third Session, prepared by the Secretariat, Report of the International Law Commission, Seventy-​first session, General Assembly Official Records (A/​c n.4/​724) (2019), at para. 24.

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2. If none of the other States concerned raises an objection within a period which, except in cases of special urgency, shall not be less than three months, the invoking State may carry out the measure which it has proposed. 3. If any State concerned raises an objection, then the States concerned are to seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 4. If no solution is reached within a period of twelve months, and the objecting State or States concerned offer to submit the matter to the International Court of Justice, the invoking State may not carry out the measure which it has proposed until the dispute is resolved. 5. This draft conclusion is without prejudice to the procedural requirements set forth in the Vienna Convention on the Law of Treaties, the relevant rules concerning the jurisdiction of the International Court of Justice and other applicable dispute settlement provisions agreed by the States concerned.

The commentary to draft conclusion 21 contains some interesting points. For example, it refers to the icj’s rather obscure passage in Gabčikovo-​Nagymaros Project about the status of articles 65 to 67 of the Vienna Convention on the Law of Treaties, concluding that “[t]‌he provisions of articles 65 to 67 of the 1969 Vienna Convention, in particular the provisions pertaining to the submission to the International Court of Justice, cannot be said to reflect customary international law.”58 Some fundamental issues about draft conclusion 21 were raised during the Sixth Committee debate in 2019. According to the Secretariat’s Topical Summary: In relation to draft conclusion 21 (procedural requirements), some delegations supported the development of tertiary norms on international dispute settlement and welcomed the inclusion of a procedural draft conclusion that underlined that the far-​reaching consequences of a conflict with jus cogens may not be triggered automatically. It was suggested that the draft conclusion address the situation in which the jurisdiction of the International Court of Justice could not be activated owing to the lack of consent of States and that it should be clarified whether the procedure 58

Para. 3 of the Commentary to Draft Conclusion 21. According to commentary (4), “[n]‌ot every aspect of the detailed procedure set forth in draft conclusion 21 constitutes customary international law.”

382 Wood under articles 65 to 67 of the 1969 Vienna Convention really applied in case of article 64 situations. It was pointed out that only a State party to a treaty should be able to make the determination of invalidity due to a treaty’s conflict with jus cogens. The Commission was asked to clarify what kinds of “measures” could be taken and why it chose a three-​month period. Others suggested the deletion of draft conclusion 21 because the draft conclusions were not draft articles proposed for inclusion in a convention. Some delegations observed that the draft conclusion did not constitute customary international law. It was considered problematic to include a provision on dispute settlement. Some delegations noted that the reference to the International Court of Justice in draft conclusion 21 inadvertently limited the options of dispute settlement in Article 33 of the Charter of the United Nations, and others highlighted that priority should be given to those peaceful means of dispute settlement. Considering the procedural nature of the draft conclusion and the use of terms such as “is to” and “are to”, the Commission was requested to clarify its intention regarding the future of the draft conclusions.59 6

Looking Forward

Where, in broad terms, does the jus cogens topic stand at the end of 2020? In addition to many points of detail that could benefit from being reviewed (both in the conclusions and in the commentaries), the 2019 first reading text raises a number of sensitive issues that will need to be reviewed if the Commission’s output is to receive general endorsement by States. Apart from the “procedural requirements” (draft conclusion 21), these include the contested draft conclusion 3, entitled “General nature of peremptory norms of general international law (jus cogens)”.60 The intended role of that draft conclusion is far from clear. The potential for misunderstanding is apparent from a recent book, in which the author finds it necessary to determine whether the supposed jus cogens norm she examines (“the prohibition of terrorism”) not only meets the criteria set forth in the definition in Article 53 of the Vienna Convention but also 59 60

“Topical Summary of the Discussion Held in the Sixth Committee of the General Assembly” on the Report of the International Law Commission, Seventy-​First session (2019), at para. 91. See for a consideration of that Draft Conclusion in this volume, Patrícia Galvão Teles “Peremptory Norms of General International Law (Jus Cogens) and the Fundamental Values of the International Community” (Chapter 3).

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displays the “core characteristics” currently set out in the contested draft conclusion 3 (“that they protect the fundamental values of the international community, are hierarchically superior and are universally applicable”).61 Other outstanding issues are the attempt to define “the international community of States as a whole”,62 the reference to Security Council resolutions,63 and whether to include a list of jus cogens norms. Following the postponement of the seventy-​ second session of the Commission to 2021, and the extension of the mandates of its existing members, the second (and final) reading of the conclusions on Peremptory Norms of General International Law (Jus Cogens) is expected to take place at the seventy-​third session in 2022. The pause between first and second reading will be one year longer than usual, and hopefully this additional time will be well used by the Special Rapporteur, other members of the Commission and States to reflect on the draft conclusions and commentaries with the care which they deserve, so that appropriate improvements may be made to this important project, not least as regards draft conclusion 21 which has proved to be among the most controversial and difficult provisions. The deadline for written comments of governments has been extended to 30 June 2021. Among the myths about the ilc is that it does not become involved with dispute settlement matters when preparing texts on specific topics, leaving such matters for States to decide on by agreement.64 That is true neither of the past

61

62 63 64

Aniel de Beer Peremptory Norms of General International Law (Jus Cogens) and the Prohibition of Terrorism (Brill, 2019), at 5; see also at 6 (referring to “the characteristics of jus cogens norms as may have emerged under international law” (emphasis added); and at 61, 69, 70 (“The criteria for norms to qualify as jus cogens should not be confused with the characteristics of jus cogens norms. While article 53 reflects the formal requirements or criteria for a norm to be elevated to jus cogens status, the characteristics speak to the typical features or qualities of jus cogens norms which flow from and are a necessary consequence of the criteria.”). See in this volume Jean Allain “The International Community ‘of States’ as a Whole Considered through the Lens of Decolonisation” (Chapter 4). See in this volume Costelloe (above note 20). Other such myths (which like all myths take on a degree of reality) are that the Commission never votes –​it used to do so frequently; that it doesn’t reflect differences of view in its second reading commentaries –​there are a number of cases when it did so, including in the commentary to the second reading (1982) of Draft Article 66 on the Law of Treaties between International Organizations, saying some members rejected the article (see para 3 of the Commentary to Draft Article 66); and that there is always one Special Rapporteur for a topic at a time (in 1950, both Alfaro and Sandström served as Special Rapporteurs for “Question of International Criminal Jurisdiction”.

384 Wood nor of the present.65 In addition to the current jus cogens topic, recent examples may be found in Article 15 of the 2019 draft articles on prevention and punishment of crimes against humanity,66 and in the 2020 report of the Special Rapporteur on Immunity of State officials from foreign criminal jurisdiction.67 There is, however, a difference between proposing dispute settlement clauses for drafts that are to be recommended as conventions and for drafts which are not so intended. In the latter case, the place of dispute settlement provisions may well need to be more nuanced. It is clear, both from the Vienna Conferences of 1968/​69 and 1985/​86 as well as from the work so far of the ilc and the UN General Assembly on Peremptory Norms of General International Law (Jus Cogens), that great importance is placed on the need to avoid the harmful consequences of “auto-​interpretation” in the invocation of jus cogens, particularly having regard to the need for stability of international obligations. It is also clear that the legal and political difficulties of achieving an effective and acceptable “solution” to this problem are considerable, outside the treaty framework, as is shown by the reaction of some States to draft conclusion 21. But such difficulties do not appear to be insurmountable. The importance of including some procedural safeguards, but also the difficulties of doing so in a non-​binding document, have been explained. It is believed that some safeguard against “auto-​interpretation” in the field of jus cogens is necessary also “beyond the law of treaties” and that a legally sound and balanced solution should be attainable. A number of suggestions could be made to improve the current draft of conclusion 21: –​ First, draft conclusion 21 could be moved from Part Three, where it does not really fit, to become a new Part Four entitled ‘Procedure’; the title of the draft conclusion could be amended to read ‘Procedure’ or ‘Recommended procedure’, dropping the word ‘requirement’. –​ Second, for the sake of clarity, paragraph (4) could be revised to read as follows: 65

66 67

For a survey of the Commission’s practice regarding settlement of disputes clauses, see Secretariat Note of 15 March 2010 (A/​c n.4/​623), and the debates of the Commission in A/​ cn.4/​s r.3070, A/​c n.4/​s r.3095 and A/​c n.4/​s r.3096. See also Working Paper prepared by Sir Michael Wood (A/​c n.4/​641). See Art. 15 of the Draft Articles on the Prevention and Punishment of Crimes against Humanity, Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records, (A/​74/​10). Eighth Report of the Special Rapporteur, Concepción Escobar Hernández, on Immunity of State Officials from Foreign Criminal Jurisdiction (A/​c n.4/​739) (2020).

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This draft conclusion is without prejudice to the procedural requirements set forth in the Vienna Convention on the Law of Treaties, other applicable dispute settlement provisions agreed by the States concerned, or the relevant rules concerning the jurisdiction of the International Court of Justice, including the principle that no State is required to submit to the jurisdiction of an international court or tribunal without its consent. –​ Third, a number of improvements could be made in the commentary. For example, footnote 914 does not give a complete or accurate picture of reservations to article 66 and objections thereto. It could be simplified to read along the following lines: There are a considerable number of reservations to the dispute settlement framework, some of which have been withdrawn. For the latest information, and for objections thereto, see the United Nations Treaty Collection. –​ And paragraph (10) of the commentary highlights the awkwardness of including, in a set of draft conclusions not intended to become a treaty, a dispute resolution provision drafted as if it were a treaty clause. If draft conclusion 21 were entitled “Procedure” or (as originally proposed by the Special Rapporteur) “Recommended procedure” or something of the sort, then paragraph (10) could explain that “of course, none of the matters referred to in paragraph 5 of the draft conclusion are affected.” Some of the current concerns with draft conclusion 21 might thus be alleviated. Draft conclusion 21 goes some way towards providing a “solution” to the unilateral and arbitrary invocation of jus cogens beyond the Vienna Convention. Its presence within the draft conclusions highlights the importance of addressing the challenge of auto-​interpretation in this context, so as to avoid so far as possible the adverse consequences that the absence of any such solution could have for the future of jus cogens and of the international legal system more broadly. It seems that some sort of judicial guarantee is indeed regarded as an important element of the concept of peremptory norms beyond the law of treaties, though how effective it can be, even within the law of treaties, remains an open question. Given its significance, it is indeed an issue on which the draft conclusions “cannot remain silent”.68 68

See Tladi (above note 2), at 268; Gaja (above note 1), at 289.

Chapter 15

Is the Right to Self-​Determination Jus Cogens Reflections on the Chagos Advisory Opinion Julia Sebutinde 1

Introduction

Over the last several decades, the right to self-​determination has been the subject of intense debate amongst the international community.1 In particular, the evolution, nature and scope of that right, as well as its place in the international legal order, has generated much debate amongst jurists and scholars. The International Court of Justice (“icj”) has, on several occasions and in the exercise of its advisory jurisdiction, had the opportunity to opine on the subject.2 The latest opportunity arose when the UN General Assembly, in exercise of its powers under Article 96(1) of the Charter of the United Nations, requested the Court to render an advisory opinion on “the decolonization process of Mauritius that took place between 1965–​1968.”3 In particular, the Court had occasion to examine “the nature, content and scope of the right to self-​determination in the context of decolonization,”4 as well as the corresponding obligation upon an administering Power to respect that right.5 The General Assembly, through Resolution 71/​292 adopted on 22 June 2017, requested the Court to answer the following questions, namely-​

(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514(xv) of 14 December 1966, 2066

1 See in this volume Ki-​Gab Park “Self-​Determination and Peremptory Norms” (Chapter 24). 2 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, icj Reports 1970, p.16; Western Sahara, icj Reports 1975, p. 12; Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj Reports 2004, p. 136. 3 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, p. 1. 4 Id., at paras.144-​155. 5 Id., at paras. 175-​180.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_016

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(xx) of 16 December 1965, 2232 (xxi) of 20 December 1966 and 2357 (xxii) of 19 December 1967? (b) What are the consequences under international law, including obligations reflected in the above-​ mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

In answer to the two questions, the Court by an overwhelming majority,6 opined that, “[h]aving regard to international law, the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968, following the separation of the Chagos Archipelago.”7 The Court further opined that, “the United Kingdom is under an obligation to bring to and end its administration of the Chagos Archipelago as rapidly as possible, and […] all Member States must co-​operate with the United Nations to complete the decolonization of Mauritius.”8 In line with its past jurisprudence, the Court stated that, “[s]‌ince respect for the right to self-​determination is an obligation erga omnes, all States have a legal interest in protecting that right.”9 Having taken part in the proceedings, I agreed with the conclusions and opinion of the Court and voted with the majority on all issues, but was of the view that the Court did not go far enough in articulating the normative character of the right to self-​determination, especially regarding its place in the international legal order. In that regard, the Court made an oblique reference in the Advisory Opinion, to General Assembly Resolution 1514 (xv) having “a declaratory character with regard to the right to self-​determination as a customary norm,”10 but did not recognize that the right has evolved into a peremptory norm of international law (jus cogens) from which no derogation is permitted and the breach of which has consequences not just for the Administering Power concerned, but also for all States. This is a regrettable retreat from the more thorough and insightful explications of the right to self-​determination that the Court has offered in previous opinions. In my view, the Court’s reluctance or failure to recognize the peremptory nature of the right led to the 6 7 8 9 10

Thirteen out of fourteen judges voted in favour of the Advisory Opinion. Chagos Archipelago Advisory Opinion (above note 3), at para.183 (3). Id. at para.183 (4) and (5). Id. at para. 180. Id. at paras. 152-​153.

388 Sebutinde failure to sufficiently articulate the full consequences of the United Kingdom’s continued administration of the Chagos Archipelago. It is for this and other reasons that I appended a Separate Opinion to the Court’s Advisory Opinion.11 In this paper, I offer my reflections on some of the key issues highlighted in the Chagos Advisory Opinion, including but not limited to, the evolution of the right to self-​determination, including its nature and scope. I also offer my thoughts on the place of that right as a norm in the hierarchy of the international legal order. In Section 2, I rehearse the colonial history of Africa, which I believe is necessary for a proper appreciation of the subject at hand. In section 3, I examine the evolution of the right to self-​determination including its nature and scope. In particular I highlight the pivotal role played by the United Nations in promoting respect for the right to self-​determination and supporting decolonization. Section 4 examines the nature of peremptory norms and consequences in international law, of their violation. Section 5 examines the status of the right to self-​determination as a peremptory norm. Section 6 examines the tension between the principle of uti possidetis juris and jus cogens in the context of decolonization. Section 7 concludes with the consequences arising from the breach of obligations associated with decolonization and lessons learnt from the Chagos Advisory Opinion. 2

Colonial History Preceding the Right to Self-​Determination

2.1 The Scramble for and Partition of Africa Historically, the colonial territories and borders on the African continent were determined by the colonizers, with very little or no input or contribution from the indigenous Africans themselves. The Scramble for Africa12 (also known as the Partition or Conquest of Africa) coincided with the industrial revolution in Europe and ushered in the colonisation of the African continent by European powers between 1881–​1914. Prior to this period, European rule was largely restricted to the coast and a short distance along major rivers such as the Niger and Congo. Within 20 short years, the political face of Africa had changed, with only Liberia,13 Abyssinia,14 and the Dervish State15 remaining free of European control.16 11 12

13 14 15 16

Id., Separate Opinion of Judge Julia Sebutinde. Reasons for the Partition of Africa included political and economic rivalries between the colonial powers, scramble for natural resources, quest for national prestige, religious rivalries, suppression of slavery, a desire to spread western civilization and a desire for peaceful coexistence amongst each other. Liberia was a colony then run by ex-​Americo-​African slaves. Present-​day Ethiopia. Present-​day Somalia. In 1870 only 10% of Africa was under formal European control: by 1914, 90% of the continent was formally colonized.

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The Berlin Conference of 1884–​188517 (and the resultant General Act of the Conference of Berlin) established the ground rules whereby the various colonial powers parceled out the African continent into spheres of influence (colonies) over which they were to exercise effective occupation. The principle of effective occupancy18 meant that not only could each of the participants in the Conference acquire territorial sovereignty over their respective colonies and make use of their natural resources (with or without the agreement of the local African authorities) but it also served as a criterion for settling disputes over the boundaries between colonies. The Dutch originally colonized the African Island nation of Mauritius in the early 18th Century. Upon the Dutch abandoning it, the French took control of the colony of Mauritius in 1715 renaming it Isle de France. France officially ceded Mauritius, including all its dependencies19 to the United Kingdom in 1814.20 Between 1814 and 1965, the United Kingdom administered the Chagos Archipelago as a dependency of the colony of Mauritius. By Resolution 66(I) of 14 December 1946 the General Assembly officially included Mauritius on the “list of non-​self-​governing territories,” on the basis of which the United Kingdom as administering Power was required to provide regular updates on the administration of that colony to the General Assembly in accordance with Article 73 of the un Charter. In 1965, the United Kingdom administratively detached the Chagos Archipelago from the rest of Mauritius and incorporated it into a new colony known as the British Indian Ocean Territories (“biot”). Thus, when Mauritius attained independence in 1968, this did not include the territory of the Chagos Archipelago. Between 1967 and 1973, the inhabitants of the Chagos Archipelago known as “Chagossians” were forcibly removed and prevented from returning; while those that had left the islands were prevented from returning.21 The circumstances leading up to the detachment of the Chagos Archipelago from the territory of Mauritius prior to independence were a major factor that the icj

17 18 19 20 21

Also known as the Congo Conference (Kongokonferenz) or West Africa Conference (Westafrika-​Konferenz): Encyclopaedia Britannica. See Article 35 of the 1885 Berlin Conference Final Act. Dependencies included Rodrigues, Agalega, St. Brandon, Tromelin and the Chagos Archipelago. UK and France signed the Treaty of Paris on 30 May 1814 in which Réunion was returned to France. The Seychelles became a separate colony in 1906. On 16 April 1971, the British Indian Ocean Territory Commissioner enacted the 1971 Immigration Ordinance that made it unlawful for any person to enter or remain in the Chagos Archipelago without a permit.

390 Sebutinde took into account in determining whether the people of Mauritius freely consented to that detachment, upon gaining independence.22 2.2 The Forging of Post-​colonial Borders and Territories in Africa Pre-​colonial boundaries in Africa were loosely defined and mostly reflected the territory inhabited and controlled by different ethnic groups. Often these boundaries changed over time due to inter-​tribal migrations or even conquest. The colonial boundaries and territories parceled out during the late 1880s by Britain, Germany, France, Belgium, Spain, Italy, and Portugal were largely arbitrary and drawn without regard to the demographic, ethnographic, or topographic structure of the continent. In many cases the colonial administrators made mistakes because they were uninformed or misinformed; while at other times they adopted the simplest methods of demarcation such as straight lines while parceling out territory.23 Consequently, many independent African States lack homogeneity within their territories and are comprised of a mixture of ethnocultural groups with different historical traditions and speaking different languages, which in turn complicate the task of forging nationhood.24 2.3 Uti Possidetis Juris: “Making Lemonade from Lemons” With the dawn of the independence era, the vast majority of trust and non-​ self-​governing territories and their boundaries remained intact after attaining independence. The Organization of African Unity (“oau”) composed of

22 23

24

Chagos Archipelago Advisory Opinion (above note 3), at paras. 170-​174. See also additional facts in Judge Sebutinde’s Separate Opinion, paras. 14-​21. Lord Salisbury described the partitioning of Africa in the following terms: “We have been engaged in drawing lines upon maps where no white man’s foot ever trod; we have been giving away mountains and rivers and lakes to each other, only hindered by the small impediment that we never knew exactly where the mountains and rivers and lakes were.” Quoted in Adekunle Ajala “The Nature of African Boundaries” (1983) 18 Afrika Spectrum 177, at 180. Judge Ajibola in his separate opinion in the Libya/​Chad case noted that the colonial penchant for geometric lines had left Africa with a high concentration of States whose frontiers were drawn with little or no consideration for those factors of geography, ethnicity, economic convenience or reasonable means of communication that had played a part in boundary determinations elsewhere, so that boundaries on that continent were patently even more artificial than elsewhere in the world since most of them were merely straight lines traced on the drawing board with little relevance to the physical circumstances on the ground: Case Concerning Territorial Dispute (Libya/​Chad), icj Reports 1994, p. 6, at paras. 52-​53.

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post-​independence African States, was instrumental in establishing the rules that stabilized the post-​colonial territories and boundaries in Africa. The oau adopted Resolution 16(1) of 1964 in Cairo, providing that colonial frontiers existing at the moment of decolonization constituted a tangible reality, which all member States pledged themselves to respect.25 The decision to maintain the colonial boundaries and territories in the post-​ colonial era was a conscious choice that the leaders of the oau made upon independence, in what has come to be known as the “stability of the boundaries.”26 The oau member States agreed that whatever the circumstances, the right to self-​determination must not involve changes to the existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise.27 By choosing to make the best of the arbitrary boundaries inherited from the colonizers, the newly born African States sought to fulfill the adage: “When life throws lemons at you, make lemonade!” In order to maintain peace as well as the sovereignty and territorial integrity of the newly independent African States, the oau developed several principles or norms, key amongst which is the primacy of the principle of “external self-​determination” over “internal self-​determination.” Accordingly, once a unitary State attained independence, its right to self-​determination was effectively realized and the notion that any portion of the population within that State could secede in furtherance of their “right to internal self-​determination,” would be refused in favour of the sovereignty and territorial integrity of that State as a single unit.28 Thus in Burkina Faso/​Republic of Mali the Chamber of 25

Resolution on Border Disputes Among African States, oau Assembly Resolution (ahg/​ Res. 16(1)). 26 Jeffrey Herbst “The Creation and Maintenance of National Borders in Africa” (1989) 43 International Organization 673, at 682–​84. Herbst explains that the challenge for these new States was how to create and preserve a boundary system in a continent where the demographic, ethnographic and topographic realities made the creation of national frontiers exceptionally difficult, due to the limited information available. In order to prevent inter-​State war and secession within and amongst the newly independent States, it was cheaper and more rational to maintain the colonial borders. See in this volume Tiyanjana Maluwa “African State Practice and the Formation of Some Peremptory Norms of General International Law” (Chapter 10). 27 In essence, the doctrine of Uti possidetis recognizes that new States will come to independence with the same borders that they had when they were administrative units within the territory or territories of a colonial power, and the fundamental aim of the doctrine is to underline the principle of the stability of boundaries. See Robert Jennings and Arthur Watts Oppenheim’s International Law Vol. 1 (Ninth Edition, Oxford, 1992), at 670. 28 Article iii of the Charter of the oau affirmed the sovereign equality of all member States, respect for their sovereignty and territorial integrity.

392 Sebutinde the icj held that because African States had decided to respect the integrity of colonial borders in order to avoid disrupting the status quo, the practices of the region must be respected despite the apparent conflict of the principle with the right to self-​determination.29 The Court emphasised that-​ The principle [of uti possidetis] is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.30 The Chamber further noted that the fact that the new African States had agreed to respect the administrative boundaries and frontiers established by the colonial powers must not be seen as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as had previously been to Spanish America, but as applicable to all situations related to the obtaining of independence.31 3

Emergence of the Right to Self-​Determination and Its Territorial Scope

With the end of the Second World War and the dawn of a new era in 1946, the United Nations organization played and continues to play a pivotal role in promoting respect for the principle of equal rights and self-​determination of peoples and in supporting Trust and Non-​Self-​Governing territories and peoples to break the yoke of colonial bondage.32 Under Chapter xi of the UN Charter, Member States set out a legal regime recognizing the right of all peoples to freely determine their political status and to freely pursue their economic, 29 30 31 32

Case Concerning Frontier Dispute (Burkina Faso/​Republic of Mali), icj Reports 1986, p. 554, at paras. 24-​26. Id. at para. 20. Id. at para. 21. In a dispensation defined by inequality between the colonizer-​States and colonized territories, Articles 1(2) and 55 of the 1945 Charter of the United Nations recognize that respect for equal rights and self-​determination of all peoples is the cornerstone of international peace and security.

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social and cultural development. Similarly, Administering Powers and Trustees placed in charge of Trust or Non-​Self-​Governing territories accepted as a sacred trust the obligation to assist in developing appropriate forms of self-​ government and pledged to take into account the political aspirations and stages of development and advancement of those territories. Administering Powers and Trustees were also obliged to submit periodic reports33 to the UN Secretary General, updating that office on the condition of the territories under their control, which reports would assist the United Nations to monitor progress on the decolonization process in those territories.34 In time, these provisions enabled the Trust and Non-​Self-​Governing territories ultimately to govern themselves.35 3.1 Pivotal Role of the United Nations General Assembly General Assembly resolutions are normally considered not binding. However, the International Court of Justice has stated that-​ General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinion juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinion juris exists as to its normative character.36 From 1950 onwards, the UN General Assembly passed many resolutions in the context of decolonization, urging respect for human rights and the right to self-​ determination including, Resolution 421 (v) of 4 December 195037; Resolution

33 34

35 36 37

Article 73 of the 1945 Charter of the United Nations. The United Nations Charter also established the International Trusteeship System (Chapter xii-​Articles 75-​78) and Trusteeship Council (Chapter xiii-​Articles 86-​91) to monitor Trust Territories formally administered under Mandates from the League of Nations. When the United Nations was established in 1946, 750 million people, almost one third of the world’s population, were under colonial domination. By 2020, as a result of efforts by the United Nations, fewer than two million people live in non-​self-​governing territories. Legality of the Threat or Use of Nuclear Weapons, icj Reports 1996, at 254–​255, para. 70. This resolution called upon the Commission of Human Rights to study ways and means that would ensure the right of peoples and nations to self-​determination.

394 Sebutinde 545 (vi) of 5 February 195238; Resolution 673 (vii) of 16 December 195239 and others.40 However, it was not until the adoption by the General Assembly, of Resolution 1514 (xv) adopted on 14 December 1960 and Resolution 1541 (xv) adopted on 15 December 1960, that the right to self-​determination crystalized into a norm of customary international law.41 3.2 United Nations Declaration on Decolonization (Resolution 1514 (xv)) Resolution 1514 (xv), known as the Declaration on the Granting of Independence to Colonial Countries and Peoples and unanimously adopted by the UN General Assembly on 14 December 1960,42 is a watershed resolution that defines the nature and scope or dimension of the right to self-​ determination. Recognizing that the subjection of people to alien subjugation, domination and exploitation constitutes a denial of their fundamental human rights and is contrary to the UN Charter, Resolution 1514 (xv) declares that, “all people have a right to self-​determination,” and proclaims that “colonialism in all its forms and manifestations should be brought to a speedy and unconditional end.” Furthermore, the resolution declares that, “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory,” adding that, “the integrity of their national territory shall be respected,” and that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the United Nations.”43 Finally, the resolution obliges all Administering Powers and Trustees to take immediate steps in all territories that have not yet attained independence, “to 38 39

40 41

42 43

This resolution directed the Commission of Human Rights which was considering the drafting covenants on human rights, to include an article to the effect that, “All peoples shall have the right of self-​determination.” This resolution urged Member States to “recognize and promote the realization of the right to self-​determination of the peoples of Non-​Self-​Governing and Trust Territories,” and described that right as “a prerequisite to the full enjoyment of all fundamental human rights.” Other resolutions include UN General Assembly Resolutions 749 (viii) (A/​r es/​749(viii)) (1953); Resolution 837 (ix) (A/​r es/​837(ix)) (1954) and 1188 (xii) of 11 December 1957. See Rosalyn Higgins Development of International Law through Political Organs of the United Nations (Oxford, 1963), at 177–​178; James Crawford The Creation of States in International Law (Second Edition, Oxford, 2006), at 604; Patrick Daillier, and Alain Pellet Droit International Public (Seventh Edition, lgdg, 2002), at 519–​520. Also known as the Declaration on Decolonization, this resolution was adopted with 97 votes to none and 4 abstentions. Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly Resolution 1514(xv) (A/​r es/​1514(xv)) (1960), at para. 6.

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transfer all powers to the peoples of those territories without conditions or reservations, in accordance with their freely expressed will and desire,” and “without disrupting the national unity and territorial integrity of such territories.”44 Resolution 1514 (xv) thus defined the nature and scope of the right to self-​determination of peoples, to include the obligation on the part of an Administering Power or Trustee to respect the national unity and territorial integrity of a State or country, during the decolonization process. 3.3 Monitoring the Decolonization Process (Resolution 1541 (xv)) Resolution 1541 (xv) was adopted by the General Assembly on 15 December 1960 to aid in monitoring the implementation and realization of the right to self-​determination. The resolution lays down principles that should guide Member States in determining when an Administrative Power has an obligation to submit the information required under Article 73(e) of the UN Charter in respect of a non-​self-​governing territory, and when that obligation has been discharged, upon such territory attaining “a full measure of self-​government.” The resolution considers a non-​self-​governing territory to have attained a full measure of self-​government in one of three instances, namely, when it emerges as a sovereign independent State; or freely associates with an independent State; or is integrated on the basis of full equality, into an independent State.45 The attainment of self-​determination must be the expression of the free will of the people concerned.46 The International Court of Justice stated that, “the right of self-​determination leaves the General assembly a measure of discretion with respect to the forms and procedures by which that right is to be realized.”47 3.4 UN Special Committee on Decolonization On 27 November 1961, the General Assembly adopted Resolution 1654 (xvi), establishing a special committee on decolonization known as the Committee of Twenty-​Four whose role is to monitor the implementation of Resolution 1514 (xv) and to make appropriate recommendations under Article 73 of the 44

45 46 47

All General Assembly resolutions adopted after this resolution and concerned with its implementation refer to “the inalienable right” of the inhabitants to self-​determination and urge the administering Power to “take no action which would dismember the territory of the colony] and violate its territorial integrity.” Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73 e of the Charter of the United Nations, UN General Assembly Resolution (A/​r es/​1441(xv)) (1960), Principle vi. Id., Principles vi-​i x. Western Sahara, Advisory Opinion (above note 2), at para. 71.

396 Sebutinde UN Charter.48 Through this Special Committee the General Assembly has kept its finger on the pulse of decolonization.49 In response to the work of this Special Committee, the General Assembly passed specific resolutions, including resolutions mentioned in the questions put to the Court, inter alia, calling for the full decolonization of Mauritius.50 Furthermore, on 16 December 1966 the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were adopted, further buttressing the right to self-​determination.51 Both Covenants specifically required those States parties having responsibility for the administration of Non-​Self-​ Governing and Trust Territories to promote the realization of the right in relation to those Territories in conformity with the provisions of the UN Charter.52 Resolutions Specifically Addressing Mauritius and the Chagos Archipelago The first question put to the Court by the General Assembly in its Resolution 71/​292 was to determine whether the process of decolonization of Mauritius 3.5

48 49

50

51 52

Also known as the “UN Special Committee on Decolonization” or “UN Special Committee of 24.” Resolutions passed by the UN General Assembly on decolonization and in response to the periodic findings of the Special Committee include the following UN General Assembly Resolutions: Resolution 1654 (xvi) (A/​r es/​1654(xvi)) (1961); Resolution 1810 (xvii) (A/​r es/​1810(xvii)) (1962); Resolution 1956 (xviii) (A/​r es/​1956(xvii)) (1963); Resolution 2066 (xx) (A/​r es/​2066(xx)) (1965); Resolution 2131 (xx) (A/​r es/​2131(xx)) (1965); Resolution 2145 (xxi) (A/​r es/​2145(xxi)) (1966); Resolution 2189 (xxi) (A/​r es/​ 2189(xxi)) (1966); Resolution 2232 (xxi) (A/​r es/​2232(xxi)) (1967) and Resolution 2357 (xii) (A/​r es/​2357(xii)) (1967). Question of Mauritius, UN General Assembly Resolution 2066(xx) (A/​r es/​2066(xx)) (1965), Question of American Samoa, Antigua, Bahamas, Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcairn, St. Helena, St. Kitts-​Nevis-​ Anguilla, St. Lucia St. Vincent, Seychelles, Solomon Islands, Tokelau Islands, Turks and Caicos Islands and the United States Virgin Islands, UN General Assembly Resolution 2232 (xxi) (A/​r es/​2232(xxi)) (1966), and the Question of American Samoa, Antigua, Bahamas, Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcairn, St. Helena, St. Kitts-​Nevis-​Anguilla, St. Lucia, St. Vincent, Seychelles, Solomon Islands, Swaziland, Tokelau Islands, Turks and Caicos Islands and the United States Virgin Islands, UN General Assembly Resolution 2357 (xxii) (A/​r es/​2357(xxii)) (1967). Both Covenants recognized in Common Article 1 that “All peoples have the right of self-​ determination” by which “they freely determine their political status and freely pursue their economic, social and cultural development.” The 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights, both adopted.

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was lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and “having regard to international law, including obligations reflected in General Assembly obligations reflected in General Assembly resolutions 1514(xv) of 14 December 1966, 2066 (xx) of 16 December 1965, 2232 (xxi) of 20 December 1966 and 2357 (xxii) of 19 December 1967.” It should be noted that the General Assembly adopted these resolutions (apart from Resolution 1514 (xv)) in response to the periodic reports received from the Special Committee on Decolonization, in relation to Mauritius and other non-​self-​governing territories. Interestingly, the United Kingdom happened to be a member of that committee during the period in question. The Court rightly opined that in relation to Mauritius, the above resolutions called upon the United Kingdom as the erstwhile Administering Power, to comply with the obligation erga onmes pertaining under the Declaration on Decolonization (resolution 1514 (xv)) to grant independence to that colony and to do so in a manner consistent with the un Charter and that Declaration. In particular, the Court stated-​ In resolution 2066 (xx) of 16 December 1965, entitled “Questions of Mauritius,” having noted “with deep concern that any step taken by the administering Power to detach certain islands from the Territory of Mauritius for the purpose of establishing a military base would be in contravention of the Declaration [on decolonization], and in particular of paragraph 6 thereof,” the General assembly, in the operative part of the text, invites “the administering Power to take no action which would dismember the Territory of Mauritius and violate its territorial integrity. … In resolutions 2232 (xxi) and 2357 (xxii), which are more general in nature and relate to the monitoring of the situation in a number of non-​self-​governing territories, the General Assembly-​ [r]‌eiterates its declaration that any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of colonial Territories and the establishment of military bases and installations in these Territories is incompatible with the purposes and principles of the Charter of the United Nations and of General Assembly resolution 1514 (xv).53

53

Chagos Archipelago Advisory Opinion (above note 3), at paras. 165–​166.

398 Sebutinde It is clear that by 1965, when the United Kingdom, as administering Power, detached the Chagos Archipelago from Mauritius, the inalienable right to self-​ determination existed under customary international law. The right inhered in the Mauritian peoples, including the Chagossians, in respect of Mauritius as a single non-​self-​governing territorial unit. The preservation of the territorial integrity of Mauritius as a single unit, prior to the attainment of independence, was therefore an integral part of the right to self-​determination. That right gave rise to a corresponding obligation upon the United Kingdom as administering Power, not to take any measure that would dismember the territory of Mauritius or prevent her Peoples (including the Chagossians) from being able to freely and genuinely express and implement their will concerning their political future with respect to the whole of their territory. This brings me to the position that the inalienable right to self-​determination occupies in the hierarchy of customary norms. 4

Consequences for Violation of Peremptory Norms

Article 38 of the Statute of the International Court of Justice, which is annexed to the UN Charter, recognizes that custom is constituted through “general practice accepted as law.” As the Court rightly observed in the Advisory Opinion,54 Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of opinion juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. 55 Peremptory norms occupy a superior position within the hierarchy of customary international law. As set forth in Article 53 of the 1969 Vienna Convention on the Law of Treaties (hereinafter the “Vienna Convention”), a peremptory norm “is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.” The Court 54 Id., at para. 149. 55 Citing North Sea Continental Shelf (Federal Republic of Germany/​Denmark), icj Reports 1969, p. 3, at para. 77.

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has expressly recognized the supremacy of peremptory norms in the international legal order and has held that the prohibitions against genocide and torture are norms of a peremptory character.56 The status of a norm as peremptory has significant consequences. As reflected in Article 53 of the Vienna Convention on the Law of Treaties of 1969 (vclt), the primary consequence is non-​derogation. The consequence of invalidity of treaties that conflict with a peremptory norm, which follows from the rule of non-​derogation, is set forth in Articles 53 and 64 of the Vienna Convention. Article 53 provides that “[a]‌treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm.” Article 53 of the vclt provides what is currently the only treaty-​based definition of the concept of jus cogens: For purposes of the present Convention, a peremptory norm of general international law [that is to say “a jus cogens norm”] is a norm accepted and recognised 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. Arguably, this definition is applicable only relative to the 11657 or so States that are currently parties to the vclt, and only relative to cases of conflict involving a treaty concluded by two or more parties to the vclt after its entry into force for those States.58 However, some scholars have concluded that, “[a]‌ll obligations established by jus cogens norms … have the character of erga omnes obligations.”59 Furthermore, certain members of the International Law Commission referred to the right of self-​determination as “a settled rule of jus cogens.”60 Article 64 of the vclt further provides that “if a new peremptory norm of general international law emerges, any existing treaty which is in 56 57 58 59

60

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), icj Reports 2012, p. 457, at para. 99; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, icj Reports 2010, p. 437, at para. 81. See Multilateral Treaties deposited with the United Nations Secretary-​General, available at https://​treaties.un.org/​pages/​participationstatus.aspx (accessed 30 May 2020). See Article 4 of the 1969 Vienna Convention on the Law of Treaties. See Conclusions of the Work of the Study Group on the Fragmentation of International law: Difficulties Arising from the Diversification and Expansion of International Law finalized by Martti Koskenniemi, Report of the International Law Commission, Fifty-​eighth session, General Assembly Official Records, (A/​c n.4/​L.682) (2006). Summary Records of the 696th meeting in Yearbook of the International Law Commission, Vol. 1(A/​c n.4/​s er.A/​1963) (1963), at 155, para. 56.

400 Sebutinde conflict with that norm becomes void and terminates.”61 These rules are now part of customary international law. This is reflected in the extensive practice of States declaring that a given treaty was invalid due to a purported inconsistency with a peremptory norm.62 The breach of a peremptory norm of international law has significant consequences for all States. As set forth in Article 41 of the International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts-​ (a) States shall co-​operate to bring to an end through lawful means any serious breach within the meaning of Article 40. (b) No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation. These rules have also achieved the widespread State practice and opinio juris necessary to constitute customary international law.63 dc 19 of the ilc 2019 Draft Conclusions reproduced Article 41.64 5

The Status of the Right to Self-​Determinations as a Peremptory Norm

By the time Resolution 1514 (xv) was being negotiated in 1960, recognition of the right to self-​determination had already achieved widespread State practice.

61 62 63

64



See Article 64 of the Vienna Convention on the Law of Treaties. Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law ( Jus Cogens) (A/​c n.4/​714) (2018), at para. 31. Id. at, para. 99. See also La Cantuta v. Peru, Judgement of the Inter-​American Court of Human Rights, 29 November 2006, at para. 160. See for expression of doubt in this volume Helmut “Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission” (Chapter 9). Draft Conclusion 19 of the ilc Draft Conclusions, Text of the draft conclusions on Peremptory Norms of General International Law (Jus Cogens) adopted by the Commission on first reading, Report of the International Law Commission, Seventy-​First session, General Assembly Official (A/​74/​10) (2019) provides: 1. States shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens). 2. No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens), nor render aid or assistance in maintaining that situation.

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The negotiating history of that declaration, replete with examples of State delegates describing self-​determination as a pre-​existing right under international law, provides evidence of opinion juris.65 It is worth noting that in the fifteen years immediately preceding the adoption of Resolution 1514 (xv) (1945–​1960), only nine former non-​self-​governing territories66 gained independence; while in the five years following its adoption (1960–​1965), a further thirty-​five territories67 were decolonized and attained self-​determination. All these newly 65

66 67

See, e.g., Declaration on the granting of independence to colonial countries and peoples (continued), Fifteenth Session, 926th Plenary Meeting, 28 November 1960, 3:00 p.m., General Assembly Official Records (A/​p v.926) (1960), UN Dossier No. 57, at 993, para. 52 (The delegate of Iran stated that colonial powers “must establish and develop their relations with the former colonial peoples on the fundamental, sacred principle that all peoples without exception have an inalienable right to complete independence, to the exercise of sovereignty and to the integrity of their national territory, and on this basis are determined to take their destinies into their own hands, the complete freedom, without any pressure from outside”); Declaration on the granting of independence to colonial countries and peoples(continued), Fifteenth Session,, verbatim record, 15th Session, 933rd Plenary Meeting, 2 December 1960, 3:00 p.m. (A/​p v.933) (1960), UN Dossier No. 64, at 446, 1102, 169 (The delegate of Ecuador stated that “We nevertheless wish to state for the record that we unconditionally support two fundamental principles contained in the declaration, namely, the right to self-​determination as the basis for the independence of States, and the condemnation of any attempt aimed at the partial or total disruption of the national unity or the territorial integrity of a country”); General Assembly, verbatim record, 15th Session, 936th Plenary Meeting, 5 December 1960, 8:30 p.m. (A/​p v.936), UN Dossier No.67, at495], 1153, para. 55 (The delegate of Indonesia interpreted paragraphs 4, 6, and 7 as a “categorical rejection” of certain colonial activities such as “the Dutch colonial policy which … misuses the sacred right of self-​determination in order to continue colonialism in an integral part of our national territory, West Irian”); General Assembly, verbatim record, 15th Session, 937th Plenary Meeting, Agenda Item 87: Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. Doc. A/​p v.937 (6 Dec. 1960), UN Dossier No. 68, at 1158, para. 15. (The delegate of the USA stated, “In the fifteen years of the United Nations, Article 73 has been put into effect with greater speed and on a grander scale than any other provision of the Charter. Some thirty-​four countries, containing over 775 million people, have attained independence since 1946. Nearly all are Members of the United Nations with representatives in this hall. In Africa alone no less than twenty-​one States have made this transition, until two thirds of the whole of Africa is free and independent.”). Cambodia, Indonesia, Federation of Malaya (Malaysia), Gold Coast Colony and Togoland Trust Territory (Ghana), Guinea, Laos, Morocco, Tunisia and Viet Nam. Algeria, Burundi, Cameroon, Central African Republic, Chad, Congo Brazzaville (Republic of the Congo), Congo Leopoldville (Democratic Republic of Congo), Cyprus, Dahomey (Benin), Gabon, Ivory Coast, Jamaica, Kenya, Kuwait, Malagasy Republic (Madagascar), Malawi, Maldives, Mali, Malta, Mauritania, Niger, Nigeria, Rwanda Samoa, Senegal, Sierra Leone, Singapore, Somalia, The Gambia, Togo, Trinidad and Tobago, Uganda, United Republic of Tanganyika and Zanzibar (Tanzania), Upper Volta (Burkina Faso), and Zambia.

402 Sebutinde independent States joined the United Nations family where they continue to promote and urge the implementation of the right to self-​determination. 5.1 Pronouncements by the International Court of Justice The International Court of Justice has, on several occasions, confirmed the existence of the right of self-​determination as formulated in Resolution 1514 (xv). The Namibia Advisory Opinion concerned South Africa’s failure to respect the territorial integrity of Namibia (South-​West Africa) in violation of General Assembly resolution 2145 (xxi) terminating the mandate for South West Africa. The Court referred to resolution 1514 (xv) as “an important stage” in the development of international law that made the right to self-​determination applicable to all non-​self-​governing territories and peoples “that had not yet attained independence” including trust territories.68 The Court implied that the right to self-​determination had peremptory character in that context by indicating that all States had a duty of non-​recognition, which flowed not only from Security Council resolution 276 but also from general international law.69 In the Western Sahara Advisory Opinion, the Court described Resolution 1514 (xv) as creating the basis for decolonization and embodying, “the principle of self-​determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end.”70 In East Timor, another case implicating territorial integrity and self-​ determination in the context of decolonization, the Court made an important contribution to the understanding of international law by observing that the “respect for the right of peoples to self-​determination, as it evolved from the Charter and United Nations practice, has an erga omnes character.”71 It also alluded to the peremptory status of the rule protecting the territorial integrity of a self-​determination unit by describing self-​determination in that context as “one of the essential principles of contemporary international law.”72 In Construction of a Wall, the Court noted that the principle of self-​ determination has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in Resolution 2625 (xxv) of 24 October 1970, pursuant to which “every State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] … of their right to 68 69 70 71 72

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Advisory Opinion (above note 2), at para. 52. Id., at paras. 119-​121. Western Sahara, Advisory Opinion (above note 2), at para. 55. East Timor (Portugal v. Australia), icj Reports 1995, p. 102, at para. 29. Ibid.

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self-​determination.”73 The Court went on to opine that Israel’s construction of a wall and Israeli settlements in occupied Palestinian territory could disrupt the territorial integrity of the Palestinian self-​determination unit by creating “a ‘fait accompli’ on the ground that could … become permanent.”74 The Court did not expressly hold that the right to self-​determination is a peremptory norm. However, again, it implied the elevated status of self-​determination within the hierarchy of international legal norms by venerating its “character and … importance.”75 Consequently, the Court held that the breach of the right of the Palestinian people to self-​determination entailed the consequences applicable for the breach of a peremptory norm in language strikingly similar to Article 41 of the Articles on State Responsibility: Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-​determination is brought to an end.76 These cases confirm the widespread State recognition that the rule requiring respect for the territorial integrity of a self-​determination unit in the context of decolonization is non-​derogable. It is also implicit in the third principle set forth in the Atlantic Charter of 1941, recognized in the Final Communiqué of the Asian-​African conference of Bandung of 1955, declared as customary international law in paragraph 6 of General Assembly resolution 1514 (xv) of 1960 —​reiterated in General Assembly resolution 2625 (xxv) of 1960 and resolution 1654 (xvi) of 1961, and reinforced by the Charter of the Organization of African Unity of 1963. As the Chagos Advisory Opinion confirms, it has come to be embodied in Articles 1, paragraph 2, 55, and 73 of the United Nations Charter.77 Presently, there is no State on the planet that has not signed on to 73 74 75 76 77

Construction of a Wall Advisory Opinion (above note 2), at para. 88. Id., at para. 121. Id., at para. 159. Ibid. Chagos Archipelago Advisory Opinion (above note 3), at para. 87.

404 Sebutinde an international legal instrument protecting the territorial integrity of a self-​ determination unit during the process of decolonization. The international community’s consistent opposition to any act that disrupts territorial integrity during the decolonization process developed very early in United Nations practice. In its very first session the General Assembly passed resolution 65 (i) rejecting South Africa’s proposal to annex South West Africa.78 In 1966, it passed resolution 2145 (xxi) declaring that South Africa had failed to fulfil its obligations to South West Africa under the mandate and accordingly terminated it. Resolution 2325 (xxii) of 1966, which the General Assembly passed in response to South Africa’s continued presence in South West Africa, is particularly pertinent. It called on all Member States to co-​ operate to end South Africa’s flagrant violation of South West Africa’s territorial integrity.79 The General Assembly reprised that call in resolution 2372 (xxii) of 1968 and further invoked the duty of non-​recognition by calling on all States “to desist from those dealings … that would have the effect of perpetuating South Africa’s illegal occupation of Namibia.” These duties achieved near-​ universal compliance and eventually South West Africa became the independent Republic of Namibia. Similarly, the international community strenuously opposed the attempt of a racist minority regime to establish the State of Southern Rhodesia in 1965 in violation of the right of the people of Zimbabwe to self-​determination. The General Assembly adopted resolution 2022 (xx) appealing to States not to recognize the minority government,80 and to co-​operate to end the unlawful situation by, inter alia, rendering moral and material help to the people of Zimbabwe in their struggle for independence.81 As a result of the concerted effort of all States, the people of Southern Rhodesia ultimately achieved independence in 1980 and became the Republic of Zimbabwe. Thus, South West Africa and Southern Rhodesia are both examples of the General Assembly invoking the universal co-​operation and non-​recognition duties associated with the breach of a peremptory norm due to violations of the territorial integrity of a self-​determination unit.

78

Future Status of South West Africa, UN General Assembly Resolution 65(i) (A/​r es/​65(i)) (1946). 79 Question of South West Africa, General Assembly Resolution 2325(xxii) (A/​ r es/​ 2325(xxii)) (1967), at paras. 4 and 6. 80 Question of Southern Rhodesia, UN General Assembly Resolution 2022(xx) (A/​r es/​ 2022(xx)) (1965), at para. 9. 81 Id., at paras. 6, 9 and 10; UN Security Council Resolution 216 (S/​r es/​216) (1965); UN Security Council Resolution 217 (S/​r es/​217) (1965).

Is the Right to Self-​D etermination Jus Cogens

405

There is little doubt that the right to self-​determination sits at the pinnacle of the normative order. It is set forth in Article 1, paragraph 2, of the United Nations `Charter as one of the purposes and principles of the United Nations. Characterizations of the right to self-​determination as a peremptory norm stretch back many decades and are now far too common to ignore. Eminent jurists, including former and current members of the International Court of Justice, have recognized the peremptory character of the right to self-​ determination.82 It has also been recognized as a peremptory norm by courts and tribunals,83 United Nations Special Rapporteurs,84 International Law Commission members, and the ilc itself.85 In 1964, when the Sixth Committee of the General Assembly discussed the ilc’s Draft Articles on the Law of Treaties, many States endorsed the characterization of the right to self-​determination as a peremptory norm and only one State voiced opposition.86 These statements and instruments inexorably demonstrate that the right to self-​determination is a rule of special importance in the international legal order. In my view, the Court should, in the Chagos Advisory Opinion, have expressly recognized that in the context of decolonization, the rule requiring respect for the territorial integrity of a self-​determination unit is now jus cogens. It lies at the very heart of the right to self-​determination. Any derogation from this rule during a decolonization process would present the colonial Power with the opportunity to endlessly perpetuate colonial domination, thereby rendering the right to self-​determination illusory.

82

83

84 85 86

See e.g. Construction of a Wall, Advisory Opinion (above note 2), at para. 12 (Separate opinion of Judge Ammoun); Crawford (above note 41), at 101; Mohammed Bedjaoui “Commentary to Article 73” in Jean-​Pierre Cot and Alain Pellet (eds.) La Charte des Nations Unies (Second Edition, Economica, 1991), at 1082–​1083; John Dugard, Max du Plessis, Tiyanjana Maluwa and Dire Tladi, Dugard’s International Law: A South African Perspective (Juta, 2018), at 50. See e.g. La Cantuta v. Peru,Judgement of the Inter-​American Court of Human Rights, 29 November 2006, para 160; Case concerning the Delimitation of Maritime Boundary between Guinea-​Bissau and Senegal (Guinea-​Bissau/​Senegal), United Nations, Reports of International Arbitral Awards (riaa), Vol. 20, Part Two, paras. 40-​43 (1989); Note No. 78/​ 2016 of the Permanent Mission of the Federal Republic of Germany in Response to the Report of the ilc on its Sixty-​seventh Session (A/​70/​10) (2015), at 2. First Report of the Special Rapporteur (Héctor Gros Espiell) on the Right to Self-​ Determination (E/​c n.4/​Sub.2/​405/​Rev.1) (1980), at paras. 71-​87. Compliance with Peremptory Norms, Report of the International Law Commission, Fifty-​ third Session, General Assembly Official Records (A/​56/​10) (2001), at para. 5. First Espiell Report on the Right to self-​determination (above note 84), at paras. 71—​72.

406 Sebutinde 6

Uti Possidetis Juris versus Jus Cogens

One of the arguments raised during the proceedings was whether in the case of Mauritius, the principle of uti possidetis juris operated as a derogation from the right to self-​determination, in that when Mauritius attained independence in 1968, the Chagos Archipelago was already legally and administratively excluded or excised from its territory.87 The proponents of this theory argued that as a result of the detachment in 1965, the main Island of Mauritius and the Chagos Archipelago or “biot” were two distinct self-​determination units within their respective colonial boundaries entitled to separately express their will as to their future political status. Accordingly, Mauritius was estopped by the principle of uti possidetis juris from claiming the Chagos Archipelago as part of its territory upon attaining independence. The Court did not opine on this issue in its Advisory Opinion. State practice demonstrates that in the context of decolonization, the relevant self-​determination unit is the entirety of a colonial territory. On a few rare occasions the international community has made exceptions to this practice, particularly where the peoples seeking self-​determination within the same colonial boundaries were so ethnographically diverse that they could not peacefully or realistically co-​exist as a single unit after independence. Such situations warranted each distinct group attaining independence separately. However, this was strictly in accordance with the expression of the free and genuine will of the peoples concerned and did not constitute a derogation from their peremptory right to self-​determination. For example, the decolonization processes in the colonial territories of the British Cameroons and Ruanda-​Urundi both recognized two self-​determination units within the respective colonial boundaries entitled to separately express their will as to their future political status. With respect to Ruanda-​Urundi, the United Nations Commission tasked with seeking the “reconciliation of the various political factions in the Territory”88 was “compelled to admit the regrettable fact that the Territory was “divided” along sectarian lines.89 The Fourth Committee acknowledged the existence of two separate peoples wishing to accede to independence as separate States.90 87 88 89 90

Written Statement of the United Kingdom of Great Britain and Northern Ireland, 15 February 2018 Chapter iii, paras. 3.1-​3.53. “Question of the Future of Ruanda-​Urundi”, UN General Assembly Resolution 1743(xvi) (A/​r es/​1743 (xvi)) (1962), at para. 3 (a). Id. at para. 319. Question of the Future of Ruanda-​Urundi, General Assembly, Sixteenth Session, Meeting of the Fourth Committee at the 1305th Meeting (A/​C.4/​s r.1305) (1962), at904, para. 14.

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In resolution 1746 (xvi), the General Assembly accepted decolonization on this basis as legitimate and declared that Ruanda-​Urundi would emerge as the two independent and sovereign States of Rwanda and Burundi on 1 July 1962. The International Community accepted the decolonization process as legitimate and Rwanda and Burundi were each admitted as members to the United Nations shortly thereafter. In the case of the British Cameroons, the United Kingdom administered the northern part of the territory as part of Nigeria and the southern part as a separate unit. In 1958, the United Nations Visiting Mission to the Cameroons under British Administration observed that the northern region had close affinities with the people of northern Nigeria whereas the southern region had close affinities with the people of the French Cameroons.91 Accordingly, the Visiting Mission recommended that, “the wishes of the northern and southern peoples of the Trust Territory should be determined separately.”92 Consistent with the recommendation of the Visiting Mission, in resolution 1350 (xiii) the General Assembly requested for “separate plebiscites in the northern and southern parts of the Cameroons under United Kingdom administration.”93 In the plebiscite in the northern region in 1959, in which the options were either joining Nigeria or postponing the decision, a majority of the concerned people voted in favour of postponing the decision.94 In the plebiscite in the southern region in 1961, in which the options were joining Nigeria or joining Cameroon, the majority voted to join Cameroon.95 In the second plebiscite in the northern region later on that same year, in which the options were joining Nigeria and joining Cameroon, the majority voted to join Nigeria.96 The General Assembly endorsed the outcome of each

91

United Nations Visiting Mission to Trust Territories in West Africa, 1958: Report of the Trust Territory of the Cameroons under British Administration( T/​1426) (1959), at 16, para. 16. 92 Id., at para. 170. 93 “The Future of the Trust Territory of the Cameroons Under United Kingdom Administration” UN General Assembly Resolution 1350(xvii) (A/​r es/​1350(xiii)) (1959), at para. 1. 94 Id., at para. 2. 95 “The Future of the Trust Territory of the Cameroons Under United Kingdom Administration: Organization of the Plebiscite in the Southern Part of the Territory”, UN General Assembly Resolution 1352(xiv) (A/​r es/​1352(xiv)) (1959), at para. 2. 96 “The Future of the Trust Territory of the Cameroons Under United Kingdom Administration: Organization of a Further Plebiscite in the Northern Part of the Territory”, General Assembly Resolution, Fourteenth Session, General Assembly Official Records 1473(xiv) (A/​r es/​1473(xiv)) (1959), at para. 3.

408 Sebutinde plebiscite as “a legitimate expression of the free and genuine will of the peoples concerned.”97 The decolonization processes in Ruanda-​Urundi and the British Cameroons do not constitute derogations from the rule protecting the territorial integrity of a self-​determination unit. They constitute derogations from the principle of uti possidetis. The Court explained the principle of uti possidetis in Frontier Dispute as follows: The essence of the principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign. In that case, the application of the principle of uti possidetis resulted in administrative boundaries being transformed into international frontiers in the full sense of the term … Uti possidetis, as a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers, is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs.98 Thus, uti possidetis is properly understood as a means to identify the self-​ determination unit in the context of decolonization. It is a doctrine related to, but clearly distinct from the territorial integrity component of self-​ determination. The latter guarantees the territorial integrity of a State or a self-​determination unit, not necessarily the integrity of colonial boundaries as such. Unlike the right to self-​determination, the icj has never suggested that uti possidetis may be a peremptory norm of international law. On the other hand, as already demonstrated, the Court has repeatedly alluded to the peremptory nature of the rule protecting the territorial integrity of a self-​determination unit in cases in which that aspect of the right to self-​ determination was implicated.

97 “The Future of the Trust Territory of the Cameroons Under United Kingdom Administration”, UN General Assembly Resolution 1608(xv) (A/​r es/​1608(xv)) (1961), at para. 2. 98 Frontier Dispute Judgement (above note 29), at para. 23.

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409

Consequences of Breach of the Obligations under Resolution 1514(xv)

Several States and organizations participating in the proceedings giving rise to the Chagos Advisory Opinion argued that the United Kingdom’s continued administration of the Chagos Archipelago has consequences under international law not only for the Administering Power itself, but also for the international community as a whole. The consequences mentioned include the requirement for the Administering Power to put an immediate end to its administration of the Chagos Archipelago and to return it to Mauritius. Other States went further by advocating that the Administering Power must make good the injury suffered by the people of Mauritius including the Chagossians. Others suggested that the former Administering Power must cooperate with the present-​day Mauritius regarding the resettlement on the Chagosssians back onto the Archipelago. For those States maintaining that the Administering Power had done no wrong, the only consequence under international law was the retrocession of the Chagos Archipelago when it is no longer required for the defence purposes of that State. Finally, a few participants were of the view that the time frame for completing the decolonization of Mauritius was a matter for bilateral negotiation between the United Kingdom and Mauritius.99 The Court having opined that the decolonization of Mauritius was not conducted in a manner consistent with the right to self-​determination, went on to declare as a first consequence, that the “United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act of a continuing character entailing the international responsibility of that State.”100 The second consequence was that the United Kingdom was under an obligation to bring to an end its administration of the Chagos Archipelago, as soon as possible, in order to enable Mauritius to complete the decolonization of its territory in a manner consistent with the right to self-​determination.101 The Court considered, as a third consequence, that it was for the General Assembly to determine the modalities required to ensure the completion of the decolonization of Mauritius, and that all Member States must cooperate with the United Nations to put those modalities into effect.102 The Court considered that the issue of resettlement of the Chagossians (including reparations) was 99 100 101 102

Chagos Archipelago Advisory Opinion (above note 3), at para. 176. Id. at para. 177. Id. para. 178. Id. at para. 180.

410 Sebutinde “an issue relating to the protection of the human rights of those concerned, which should be addressed by the General Assembly during the completion of the decolonization of Mauritius.”103 As stated earlier, the Court appears to have taken a softer stance than the one it took with regard to the breach of the same obligation erga omnes in the Namibia Advisory Opinion and the Wall Advisory opinion, where consequences it declared included a duty upon all States not to recognize the illegal situation in each case and not to render assistance in maintaining the situation. Given the Court’s reluctance to recognize that the right to self-​determination is jus cogens, the Court has failed to properly articulate the consequences of the United Kingdom’s internationally wrongful conduct. To answer the questions posed by the General Assembly in resolution 72/​ 292, I opined that the right to self-​determination already existed as part of customary international law by 1965 when the United Kingdom as administering Power, separated the Chagos Archipelago from Mauritius. The right inhered in the Mauritian peoples, including the Chagossians, as a single non-​ self-​governing territorial unit. The preservation of the territorial integrity of Mauritius as a single unit, prior to the attainment of independence, was an integral part of her right to self-​determination. That right gave rise to a corresponding obligation upon the United Kingdom as administering Power, not to take any measure that would dismember the territory of Mauritius or prevent her peoples (including the Chagossians) from being able to freely and genuinely express and implement their will concerning their political future with respect to the whole of their territory. By detaching the Chagos Archipelago from Mauritius in 1965 and establishing a new colony in respect thereof known as the biot, prior to ascertaining the free and genuine will of the Mauritian people in that regard, the United Kingdom violated its obligation, not just to Mauritius, but to the international community as a whole (erga omnes), not to take any measure that would prevent the Mauritian people from freely exercising their right to self-​ determination with respect to the whole of their territorial unit to which that right related. As a result, the process of decolonization of Mauritius was not lawfully completed when she attained independence in 1968. Accordingly the people of Mauritius still possess the right to self-​ determination in relation to the whole of their territory (including with respect to the Chagos Archipelago) and the United Kingdom’s continued administration of the Chagos Archipelago (as part of the biot) constitutes 103 Id. at para. 181.

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a continuing wrongful act in international law, entailing the international responsibility of that State. The United Kingdom remains under an obligation first, not to take any measure that would prevent the people of Mauritius from freely exercising their right to self-​determination in relation to the whole of their territory. Secondly, the United Kingdom has an obligation to immediately bring to an end its administration over the Chagos Archipelago and to return it to Mauritius. Thirdly, the United Kingdom is under an obligation to “as far as possible, wipe out all the consequences of the unlawful act” (including the forcible displacement of the Chagossians), and to “re-​establish the situation which would, in all probability, have existed if that unlawful act had not occurred.”104 Since the obligation to respect the right to self-​determination, including the obligation to respect the territorial integrity of the non-​self-​governing territory as a single unit, is an obligation erga omnes, all States have an obligation not to recognize the illegal situation resulting from the continued occupation of the Chagos Archipelago by the United Kingdom, and not to render any aid or assistance in maintaining that occupation. The United Nations, in accordance with its role on decolonization, should continue supporting Mauritius until it realises full self-​determination for all its peoples, including the Chagossians.105 8

Conclusion

So, what lessons can be drawn from the Chagos Advisory Opinion? The consequences prescribed for serious breaches of peremptory norms reflect the special interest that the international community has in guaranteeing that they are honoured. Self-​determination is a bedrock principle on which so many rights that the international community holds dear are built. It is regrettable that almost six decades after the General Assembly passed resolution 1514 (xv), the odious institution of colonization is yet to be eradicated and the right to self-​determination is yet to be universally recognized. The Court’s words in the Namibia Advisory Opinion of 1971 remain applicable to Mauritius today;

104 Case Concerning the Factory at Chorzów, Jurisdiction Judgment, Merits Judgment No. 13, Judgement of the Permanent Court of International Justice, 13 September 1928, at 47. 105 Chagos Archipelago Advisory Opinion (above note 3), Separate Opinion of Judge Julia Sebutinde.

412 Sebutinde “all States should bear in mind that the injured entity is a people which must look to the international community for assistance” in its struggle for self-​determination.106 106 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (above note 2), at para.27.

Chapter 16

Jus Cogens and Compensation Rosalind Elphick with John Dugard 1

Introduction

The law of reparations gives prominence to the standard of full reparation and, in practice, the form of reparation that is most commonly sought and awarded is compensation. Indeed, compensation is relied upon with increasing regularity, and often exclusively, to wipe out the consequences of a violation of international law and restore the victim-​State to the position it would have been in but for the breach. The standard of full reparation, however, can have problematic consequences for the quantification of compensation in jus cogens cases, where the nature of the violation is at its most serious and the extent of the harm is likely to be vast or immeasurable. In its seminal work on State responsibility, the International Law Commission (“ilc”) chose not to address these issues and makes only passing reference to peremptory norms in relation to reparations generally. More recently the ilc has decided to focus on jus cogens,1 and its work on the topic of “Peremptory norms of general international law (jus cogens)” is now at an advanced stage. The draft conclusions and commentaries adopted by the Commission at its 71st session, however, show that the ilc has yet to address the relationship between violations of a peremptory norms and the quantification of compensation.2 The fast-​growing body of compensation awards demonstrates the particular importance of compensation to the settlement of international disputes involving violations of jus cogens. Similarly, it appears that the nature of jus cogens violations has a significant impact on the quantification of compensation. These overlaps, and their significance, are deserving of the attention of the ilc as it finalises its conclusions on peremptory norms of international law. This Chapter is intended as a contribution to that end, by providing a 1 Report of the International Law Commission, Sixty-​Seventh session, General Assembly Official Records, (A/​70/​10) (2015), at para. 286. 2 Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_017

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study of the standard of full reparation, the quantification of compensation and jus cogens violations. 2

The Standard of Full Reparation

The quantification of harm is a vexed issue under international law, but as a matter of principle its measure is one of the most established norms of customary international law. As early as 1928, the Permanent Court of International Justice (“pcij”) in the Factory of Chorzów case reached the conclusion that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-​establish the situation which would, in all probability, have existed if that act had not been committed. 3 The pcij based its decision in this regard on its assessment that the principle “seems to be established by international practice and, in particular, by the decisions of arbitral tribunals”.4 There were no citations provided for that finding –​as was the pcij’s practice –​but it appears that international law has in any event never looked back. In the years since, the passage has been cited across the ever-​growing spectrum of international tribunals, in compensation awards made within every sphere of international law, from investment law5 to the law of the sea,6 and in inter-​State cases and individual applications alike. In 2001, when the ilc in its Articles on Responsibility of States for Internationally Wrongful Acts (“Articles on State Responsibility”) set the standard of “full reparation”, it was unambiguous that this was intended in “the Factory at Chorzów sense”.7

3 Case Concerning Factory at Chorzów, Merits, Judgment of the Permanent Court of International Justice, Series A Number 17, at 47. 4 Id. 5 Siemens AG v Argentine Republic, icsid Case No. arb/​02/​8, Award of the International Centre for Settlement of Investment Disputes, 6 February 2007, at para. 355; El Paso Energy Intl Co v Argentine Republic, icsid Case No. arb/​03/​15, Award of the International Centre for Settlement of Investment Disputes, 31 October 2011, at paras. 703-​704. 6 M/​V “saiga” (No. 2) (Saint Vincent and the Grenadines v. Guinea), Judgment of the International Tribunal for the Law of the Sea, 1 July 1999, at 65, para. 170. 7 Article 13 of the Draft Articles on State Responsibility, Report of the International Law Commission, Fifty-​ Sixth Session, General Assembly Official Records (A/​ 56/​ 10) (2001), Chapter iv, (“The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act”.).

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Compensation is of course not the only form that reparations can take, and as such it is by no means the only manner to restore the injured State to its previous position. There is also the possibility of restitutio in integrum, which the ilc has in fact determined “comes first” among the forms of reparation, given that it is the remedy which “most closely conforms to the general principle that the responsible State is bound to wipe out the legal and material consequences of its wrongful act”.8 In its further justification of this hierarchy, the ilc added that States have often insisted upon claiming [restitution] in preference to compensation. Indeed, in certain cases, especially those involving the application of peremptory norms, restitution may be required as an aspect of compliance with the primary obligation.9 Article 35 of the Articles on State Responsibility does not however ignore the fact that restitution is not always a practicable form of reparation, and accordingly determines that a State responsible for an internationally wrongful act is under an obligation to make restitution “provided and to the extent that” the fulfilment of that obligation would not be “materially impossible” nor impose “a burden out of all proportion to the benefit deriving from restitution instead of compensation”.10 Under Article 36 of the Articles on State Responsibility, to the extent that the harm cannot be made good by restitution, the responsible State is subject to the further obligation to “compensate” for the harm caused by its internationally wrongful act.11 In fulfilling this function, in cases where restitution is not at all possible, an award of compensation serves to reflect the “value which a restitution in kind would bear”.12 In cases where restitution is possible but does not fully “wipe out all the consequences of the wrongful act”, compensation serves to fill the gap between restitution and “full” reparation. The obligation to pay compensation is also limited, however, insofar as it is due only for “financially assessable damage”.13 For harm that is not financially assessable, and therefore could not be made good by compensation, a third possibility exists in the form of “satisfaction”.14 Article 37, paragraph 2, of the Articles on

8 9 10 11 12 13 14

Id., Cf. Factory at Chorzów (above note 3), at 47. Articles on State Responsibility (above note 7), at 97, para. 3 of commentary to Article 35. Article 35 (a) and (b) of the Articles on State Responsibility (above note7), at 96. Factory at Chorzów (above note 3), at 48. Id., at 47. Article 36(2) of the Articles on State Responsibility (above note 7). Article 37(1) of the Articles on State Responsibility (above note 7).

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State Responsibility provides that satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or any other modality deemed appropriate in the circumstances of the case. Compensation therefore exists within the broader framework of the law of reparations, the core focus of which is to “wipe out all the consequences of the illegal act and re-​establish the situation which would, in all probability, have existed if that act had not been committed”.15 Within this framework, each method for the restoration of the victim-​State is valued to the extent that it is capable of achieving that end. As a result of the short-​comings inherent in each type of reparation, it is expected that they will be used in combination, as appropriate to the circumstances of the case. Irrespective of the modality chosen, or their combination, the aim of full reparation is at the core of the analysis. 3

The Relevance of Compensation to Jus Cogens

There is a long tradition of compensation awards in inter-​State cases involving the violation of jus cogens. Two foundational examples spring to mind: in Lusitania, for one, “complete pecuniary compensation” was awarded for the loss (wrongful death) which resulted from a German act of aggression against a British vessel.16 Secondly, in Rainbow Warrior, the UN Secretary General awarded compensation to New Zealand as a result of an unlawful military operation carried out by French authorities within New Zealand’s territorial waters, in violation of the latter’s territorial sovereignty.17 In recent years, however, there has been a noticeable upswing in the number of inter-​State cases in which compensation has been sought or awarded. Within this rapidly expanding body of case law, it is with remarkable frequency that claims for compensation overlap with violations of peremptory norms. Prior to 2012, the International Court of Justice (“icj”) had ordered the payment of compensation in only one case: this being the Corfu Channel case –​ the court’s first ever contentious case –​decided in 1949 (and incidentally a 15 16 17

Factory at Chorzów (above note 3), at 47. Opinion in the Lusitania Cases (United States of America v. Germany), un riaa 35, Ruling of 1 November 1923, at 35–​36. Case concerning the differences between New Zealand and France arising from the Rainbow Warrior affair, Arbitration ruling made by the Secretary-​General of the United Nations, 6 July 1986, at 199–​221.

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case involving a jus cogens violation).18 In the last decade, however, the icj has made a compensation award in two separate cases.19 Of these, the case of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) dealt with the pecuniary consequences of the Court’s finding that, by excavating three caños and establishing a military presence on Costa Rican territory, Nicaragua had violated the territorial sovereignty of Costa Rica.20 A third decision on compensation is currently pending in the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).21 In this case the icj is expected to set compensation for Uganda’s unlawful military intervention in the drc, an operation that “was of such magnitude and duration that the Court considered it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the United Nations Charter”.22 Israel’s construction of a wall in the Occupied Palestinian Territory also raised the issue of compensation for the violation of peremptory norms. In its advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory23 the icj based its finding on the illegality of the wall on Israel’s violation of the jus cogens norms of the right of self-​determination24 and respect for the fundamental principles of humanitarian law.25 The failure of the Court to describe Israel’s conduct as a violation of jus cogens norms can be ascribed to the fact that the Court had refrained from using the language of jus cogens and peremptory norms until 2006.26 The Court’s finding that “Israel is under an obligation to make reparation for all damage caused by the 18 19

20 21 22 23 24 25 26

Corfu Channel case (United Kingdom v. Albania), Assessment of Amount of Compensation, Judgment, icj Reports 1949, p. 244. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, icj Reports 2012, p. 324; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, icj Reports 2018, p. 15. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (above note 19), at para. 27. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), icj Reports 2005, p. 168. Id, at para. 165. Cf. the decision to appoint experts, in the Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Order of 8 September 2020. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj Reports 2004, p. 136. Id, para. 149. Id, paras. 120, 132, 149. The Court first referred to peremptory norms in Case Concerning Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (New Application: 2002), icj Reports 2006, p. 6 at paras. 64 and 78.

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construction of the wall”27 clearly showed an expectation that its order that restitution be made or compensation paid for harm caused by the construction of the wall28 would be taken seriously by the political organs of the United Nations. This expectation failed, however, to take account of the unwillingness of the political organs of the United Nations to take any action against Israel. In the result the Security Council refused to take any action whatsoever, or even to acknowledge the Opinion. It was left to the General Assembly to establish a Register of Damages to collect information about claims arising from the harm caused, with no power to demand compensation from Israel.29 To date Israel has not paid any compensation for its construction of a wall in Palestinian territory. Although the violation of peremptory norms was identified by the Court and although it called for the payment of compensation if restitution was not forthcoming, the kind of action taken by Security Council in respect of the invasion of Kuwait was not taken, and the failure to follow the model of the United Nations Claims Commission (“uncc”) suggests that the political organs of the United Nations have yet to grasp the significance of the violation of peremptory norms. Further insight is gained from the relief requested by States in their applications instituting proceedings in contentious cases brought to the icj, which reflect a marked change even within the last decade. In the years 2010 to 2014, there was a total of 14 applications instituting proceedings filed. Of these, only one included a prayer for relief in the form of compensation,30 and two included requests for reparations without specification as to their form.31 In the years 2015 to 2020, by comparison, of the 16 applications instituting proceedings filed, three included a prayer for relief in the form of compensation specifically,32 three requested reparations without further 27 28 29 30 31

32

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (above note 23), at para. 163(3) C. Id., para. 153. See United Nations General Assembly Resolution es-​10/​15 (A/​r es/​e s-​10/​15) (2004); and United Nations General Assembly Resolution es-​10/​17 (A/​r es/​e s-​10/​17) (2007). Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Application Instituting Proceedings filed in the Registry of the icj, 21 December 2011, at para. 50(b). Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Application Instituting Proceedings filed in the Registry of the icj, 26 November 2013, at para. 22; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Application Instituting Proceedings filed in the Registry of the icj, 18 November 2010. Immunities and Criminal Proceedings (Equatorial Guinea v. France), Application Instituting Proceedings filed in the Registry of the icj, 13 June 2016, at para. 41(d)(ii); Certain Iranian

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clarification,33 and a final case reserved the right to request “remedies for damage” caused by an alleged violation of the Applicant-​State’s sovereignty and territorial integrity.34 Of the cases requesting “full reparation” without specification there are two particularly noteworthy jus cogens cases, both of which raise novel issues related to compensation. For one, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) raises a claim for reparation for alleged violations of the Genocide Convention. These alleged acts include “killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births”, for which restitution is not possible, and for which compensation has never been awarded in an inter-​State case let alone a case instituted on the basis of obligations owed erga omnes.35 Secondly, there is Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms

33

34

35

Assets (Islamic Republic of Iran v. United States of America), Application Instituting Proceedings filed in the Registry of the icj, 14 June 2016, at para. 33(f); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates), Application Instituting Proceedings filed in the Registry of the icj, 11 June 2018, at para. 66(g). Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Application Instituting Proceedings filed in the Registry of the icj, 16 January 2017, at para. 136 (g)-​(l), para. 138 (k); Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Application Instituting Proceedings filed in the Registry of the icj, 29 March 2018, at para. 55(e); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application instituting proceedings and Request for the indication of provisional measures at the icj, 11 November 2019, at paras. 2 and 127; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Application Instituting Proceedings filed in the Registry of the icj, 16 January 2017, at para. 136 (g)-​(l), para. 138 (k); Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Application Instituting Proceedings filed in the Registry of the icj, 29 March 2018, at para. 55(e); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application instituting proceedings and Request for the indication of provisional measures in the icj, 11 November 2019, at paras. 2 and 127. Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Application Instituting Proceedings filed in the Registry of the icj, 16 January 2017, at para. 22(b) (“Costa Rica reserves it rights to seek any further remedies with respect to any damage that Nicaragua has or may cause to its territory”.). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Application (above note 33), at paras. 2 and 127.

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of Racial Discrimination (Ukraine v. Russian Federation), which raises a claim for reparation for acts of racial discrimination, notably, within the context of an occupation.36 In this case, Ukraine has clarified by its further written submissions that it seeks compensation specifically.37 Other international tribunals have experienced a similar increase. The International Tribunal on the Law of the Sea made a compensation award in its first decision, handed down in 1997.38 For a number of years following, the Tribunal had no further occasion to make such an award, but since 2014 it has done so in two decisions,39 and, according to Ukraine’s submissions at the provisional measures hearing in the Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), will face a third such decision when that case reaches the merits phase.40 For our purposes, the work of this Tribunal is made particularly significant by its recent determination on the right of States Parties, acting erga omnes partes, to claim compensation for damage to the marine environment and “resources constituting the common heritage of mankind”.41 Though not yet acknowledged to be jus cogens, the obligation to protect the environment may soon attain this status.42 The echr, as recently as 2014, made its first ever inter-​State damages award in the case of Cyprus v. Turkey.43 In this case, Cyprus’ claim for compensation was rooted in Turkey’s liability for its military operations in northern Cyprus (in July and August 1974) and for its “continuing division of the territory of 36

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Written Memorial of Ukraine, 12 June 2018, at 365. 37 Id., at paras. 654(e), (f) and (l). 38 M/​V “saiga” (Saint Vincent and the Grenadines v. Guinea), Judgment of the International Tribunal for the Law of the Sea, 4 December 1997, at para. 170. 39 M/​V “Norstar” (Panama v. Italy), Case No. 25, Judgment of the International Tribunal for the Law of the Sea, 10 April 2019, at para. 462; M/​V “Virginia G” (Panama/​Guinea-​Bissau), Judgment of the International Tribunal for the Law of the Sea, 14 April 2014, at 4, para. 446. 40 Case concerning the detention of three Ukrainian naval vessels (Ukraine v. Russian Federation), Provisional Measures, Judgment of the International Tribunal for the Law of the Sea, at 34, line 13 and line 44. 41 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion of the International Tribunal for the Law of the Sea, 1 February 2011, at 10, at para. 179-​180. 42 See in this volume Nilufer Oral “Environmental Protection as a Peremptory Norm of General International Law: Is it Time?” (Chapter 20). 43 Cyprus v Turkey (Just Satisfaction), Judgment of the European Court of Human Rights Grand Chamber, 12 May 2014.

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Cyprus and the activities of the ‘Turkish Republic of Northern Cyprus’ ”.44 That decision was followed in 2019 by the award of compensation in the case of Georgia v. Russia.45 The pending case of Georgia v Russia (ii) was filed in the context of the armed conflict that occurred between Georgia and the Russian Federation in August 2008, and involves Georgia’s claim that it is entitled to compensation for “indiscriminate and disproportionate attacks by Russian forces”.46 In a fourth case, Slovenia v. Croatia,47 also pending before the Grand Chamber, it is reported by Slovenia that its application instituting proceedings includes a claim for “just satisfaction” in the amount of eur 429.5 million.48 For the processing of mass claims, which usually involve norms of jus cogens, the establishment of a dedicated “compensation commission” is increasingly common. The first of these was the Iran-​United States Claims Tribunal, established on 19 January 1981 by the Islamic Republic of Iran and the United States of America to resolve certain claims by nationals of one State Party against the other State Party and certain claims between the State Parties.49 The Tribunal’s jurisdiction is mostly related to matters of contract law, as opposed to public international law violations, but it does also cover disputes between the two states concerning the interpretation or performance of the Algiers Declarations. In-​keeping with the trend, on 10 March 2020 the Iran-​US Claims Tribunal issued its first damages award in an inter-​State case.50 The Iran-​US Claims Tribunals was followed by two claims commissions, both of which were set up to restore the victims of an unlawful act of aggression and violations of the jus in bello. The uncc, which was established in 1991 by resolution 687 of the United Nations Security Council.51 Its mandate was to 44 45

Id., at para. 4. Georgia v Russia (just satisfaction), Judgment of the European Court of Human Rights Grand Chamber, 31 January 2019. 46 Georgina v Russia ii, Judgment of the European Court on Human Rights, 13 December 2011, at paras. 18 and 21. 47 Slovenia v Croatia, Application no. 54155/​16 in the European Court of Human Rights, 12 June 2019. 48 Republic of Slovenia, “Inter-​State application against Croatia”, published online at https://​ www.gov.si/ ​e n/ ​ registries/ ​ p rojects/ ​ s fry- ​ s uccession/ ​i nter- ​s tate- ​ a pplication- ​a gainst-​ croatia/​(accessed 24 November 2020). 49 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Iran-​United States Claims Tribunal, 19 January 1981, Article v. 50 The Islamic Republic of Iran v. The United States of America, Partial Award No. 604, Award of the Iran-​United States Claims Tribunal, 10 March 2020. 51 United Nations Security Council Resolution 689 (S/​r es/​689) (1991).

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process claims and pay compensation for “any direct loss” resulting from Iraq’s unlawful invasion and occupation of Kuwait in 1990.52 The uncc’s Governing Council established six claims categories for claimants to choose from, including “Category F”, which was dedicated to claims filed by “Governments and international organizations”.53 Category F claims filed were largely for environmental damages and the depletion of natural resources, but these were adjudged based on their causal link to the primary violation at issue: Iraq’s unlawful invasion and occupation of Kuwait.54 In total, the uncc reported that it received approximately 400 category “F” claims filed by 43 states and six international organizations, seeking roughly usd 236 billion in compensation.55 The Governing Council made its last award under “Category F” in 2005, bringing the total compensation awarded under this claims category to approximately us$14.4 billion.56 Most recently, the Eritrea-​Ethiopia Claims Commission (“eecc”) was established by the Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea, a peace agreement signed between Ethiopia and Eritrea in December 2000, following their May 1998 to June 2000 border war.57 According to Article 5(1) of the agreement, the Commission’s mandate was to decide “all claims for loss, damage or injury by one Government against the other” stemming from “violations of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law” committed by either Eritrea or Ethiopia during their border war.58 Eritrea having been found liable for the initiation of the conflict, was ordered to pay Ethiopia usd 174 million in compensation for the harm flowing from its violation of both the jus ad bellum and the jus in bello.59 52 53 54 55 56 57 58 59

Id., at para. 16. United Nations Compensation Commission Governing Council “Category F”, available at https://​uncc.ch/​category-​f (accessed 24 November 2020). Cf. Criteria for Additional Categories of Claims, (S/​a c.26/​1991/​7/​Rev. 1) (1992), at paras. 26 et seq. Francis E. McGovern “Dispute System Design” in Timothy J. Feighery, Christopher S. Gibson, and Trevor M. Rajah (Eds.) War Reparations and the UN Compensation Commission: Designing Compensation After Conflict (2015) 37. United Nations Compensation Commission Governing Council “Category F”, available at https://​uncc.ch/​category-​f (accessed 24 November 2020). Id. Agreement between the Government of the Federal Democratic Republic of Ethiopia and the Government of the State of Eritrea (2001) 40 International Legal Materials 260. Id., at Article 5(1). eecc, Final Award, Ethiopia’s Damages Claims,17 August 2009, at 106. Available at https://​ pcacases.com/​web/​sendAttach/​767 (accessed 22 November 2020).

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Ethiopia was ordered to pay Eritrea approximately usd 161,5 million in compensation for violations of the jus in bello.60 It bears mentioning in addition that the International Criminal Court (“icc”) in 2012 made its first ever reparations decision in the Lubanga case, establishing a procedure for awarding compensation in a case where mass atrocities were perpetrated against unnamed victims.61 Since then, three more cases have entered the reparations phase.62 These cases, albeit not in the setting of State responsibility, reflect the increasing prominence of compensation as a form of reparation for violations of the jus in bellum. The frequency with which jus cogens and compensation claims overlap is explained, at least to some degree, by the nature of jus cogens violations. As the Court confirmed in the case concerning Avena and Other Mexican Nationals, “[w]‌hat constitutes ‘reparation in an adequate form’ clearly varies depending upon the concrete circumstances surrounding each case and the precise nature and scope of the injury, since the question has to be examined from the viewpoint of what is the ‘reparation in an adequate form’ that corresponds to the injury”.63 Restitution takes on a singular importance in relation to continuing violations, for example. In cases involving an ongoing slavery or unlawful occupation, as such, the case for restitution is straightforward and it is clear that in these circumstances’ restitution would constitute “an aspect of compliance with the primary obligation”.64 Certain provisions of humanitarian law also refer directly to cultural property and the right to restitution that

60 61

62

63 64

eecc, Final Award, Eritrea’s Damages Claims, 17 August 2009, at 96. Available online at https://​pcacases.com/​web/​sendAttach/​766 (accessed 22 November 2020). icc, Prosecutor v Thomas Lubanga, Decision establishing the principles and procedures to be applied to reparations, Judgment of the International Criminal Court, 7 August 2012. Cf. Prosecutor v. Thomas Lubanga Dyilo, Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable, Judgment of the International Criminal Court, 18 July 2019; Prosecutor v. Thomas Lubanga Dyilo, Corrected version of the “Decision Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable”, Judgment of the International Criminal Court, 21 December 2017 Prosecutor vs. Al Mahdi, Reparations Order, Judgment of the International Criminal Court, 8 March 2018; Prosecutor vs. Germain Katanga, Order awarding individual and collective reparations, Judgment of the International Criminal Court, 24 March 2017; Prosecutor v. Bosco Ntaganda, First Decision on Reparations Process, Judgment of the International Criminal Court, 26 June 2020. Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, icj Reports 2004 (i), 59, at para. 119; see also Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, icj Reports 2010, p. 14, at para. 273. Articles on State Responsibility (above note 7), at 97, para. 3 of commentary to Article 35.

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States would have in circumstances where cultural property has been removed during the course of a war or a military occupation.65 However, restitution will simply not be feasible in many –​if not most –​ cases involving the violation of a peremptory norm. How could one, for example, “restore” an act of aggression, torture, the injury or killing of a victim of genocide or the indiscriminate killing or injury of a civilian in an armed conflict? Moreover, if one considers that human rights are inherent and therefore cannot be removed, it follows that they cannot as a matter of principle be “restored”. As such, whereas it is arguable that in a case of apartheid or racial discrimination, the wrongful State could “restore” enjoyment of the right to equality, a better understanding is outlined in Construction of a Wall, wherein the Court determined that the requirement that a State dismantle “legislative and regulatory acts adopted [in violation of a peremptory norm]” is properly understood as “cessation” of the violation and not a form of reparation.66 Alternatively, one might imagine a scenario where the jus cogens violation did not interrupt the enjoyment of a right. In South Africa’s history, for example, where the right to equality was not respected even prior to the introduction of apartheid policies, the adoption of the 1994 South African Constitution cannot easily be seen as “restorative” of that right. There is no inter-​State case law to draw upon in order to show that compensation would necessarily be required in order to make reparations for apartheid, in the absence of which the practice of the South African government becomes relevant as the only existing example of an apartheid reparations scheme in practice. Within this scheme, the State legislature designed the Regulations Regarding Reparations to Victims in order to support the work of the Truth and Reconciliation Commission.67 It is noteworthy that, within these regulations, the only form of reparations contemplated was monetary compensation.68 The limits of restitution in the context of a jus cogens violations with ongoing, harmful impacts are particularly highlighted by the intergenerational impact of historical practices of slavery. Obviously, there cannot be restitution 65

66 67 68

1956 Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict at 358, para. 1 (States must prevent the exportation of cultural property from occupied territory) and para. 3 (States must return cultural property exported in violation of para. 1). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (above note 23), at 136, paras. 151 and 152. Promotion of National Unity and Reconciliation Act, 1995 (Act no. 34 of 1995): Regulations Regarding Reparations, gn R1660 in gg 25695 of 12 November 2003. Available online at https://​www.justice.gov.za/​trc/​legal/​20031112-​gg25695_​nn1660.pdf. Id., Article 3.

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for long-​deceased victims of the slave trade. The descendants of those persons however may have a claim to compensation. Indeed, there is an ongoing global debate centred on this issue. Even in circumstances where restitution is possible and would not be disproportionate, it is more than likely that compensation will nevertheless be required in order to achieve “full” reparation for the violation of a peremptory norm. In cases where a continuing enslavement is at issue, for example, the restoration of the victim’s personal liberties would not have the effect of wiping out the financial and emotional consequences of their time spent as a slave. Compensation would necessarily be required to ensure the victim was freed from the consequences of their lost earnings, at the very least. Indeed, it is difficult to imagine a scenario where a jus cogens violation would not have pecuniary consequences. 4

The Relevance of Jus Cogens to Compensation

Despite the relative importance of compensation among the forms of reparation and its ever-​increasing relevance to the work of international tribunals, particularly in their most fundamental casework (i.e., cases of jus cogens violations), there remains a distinct lack of understanding as to its machinations. That is to say, the methodologies used for assessing the extent and value of many types of harm remains something of a mystery. Ostensibly, the only criteria relevant to quantification is the extent of the harm, given the restorative focus of the reparation’s standard. Indeed, the amount of compensation should reflect as closely as possible the value of the damage incurred.69 As such, compensation cannot have a punitive, “expressive or exemplary” character.70 This metric appears somewhat outdated, however, in view of the case law on compensation awards, which highlights the fact that there is no objective metric for measuring the value of all moral damages and 69

70

This principle was first expressed in the Lusitania case, where the German-​American Claims Commission held that “remedy must be commensurate with the injury received. […] The compensation must be adequate and balance as near as may be the injury suffered”, Opinion in the Lusitania Cases (above note 16), at 35–​36. Articles on State Responsibility (above note 7), at 99, para. 4 of commentary to Article 36. For the practice of the Inter American Court of Human Rights on this point, see J. J. Rojas Báez, “La jurisprudencia de la Corte interamericana de derechos humanos en materia de reparaciones y los criterios del proyecto de artículos sobre responsabilidad del estado por hechos internacionalmente ilícitos” (2007–​2008) 23 American University International Law Review 104.

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many types of material harm. In the absence of a clearly objective metric for the quantification of most types of harm, it is difficult to escape the perception that the awards are shaped at least to some degree by the nature of the violation as opposed to the extent of the harm. 4.1 The Challenge of Quantification To recall, the function of reparations is to re-​establish the situation that “would, in all probability, have existed” if the wrongful act had not been committed.71 As the ilc states, restitution is the form of reparation which most closely conforms to this general principle, and in principle it should require no imagination on the decision-​makers’ behalf. In cases where restitution is impossible or insufficient, however, the decision-​maker is required to express in monetary terms “the value which a restitution in kind would bear”.72 This is necessarily a creative task, in relation to both the assessment of the extent of the harm and the evaluation of the appropriate compensation for that harm. As the tribunal in adc v. Hungary put it, the quantification of compensation is “not a science”.73 The point is most easily made by reference to the case law on compensation for moral harm. Although compensation is limited to “financially” or “economically assessable” harm, international law makes it clear that this standard does not exclude non-​pecuniary or “moral” damages.74 That principle was famously stressed in the Lusitania case, decided in 1923, to the following effect: Mental suffering is a fact just as real as physical suffering, and susceptible of measurement by the same standards … The difficulty of measuring mental suffering or loss of mental capacity is conceded, but the law does not refuse to take notice of such injury on account of the difficulty of ascertaining its degree. 75

71 72 73 74

75

Factory at Chorzów (above note 3), at 47. Id. adc Affiliate Limited and adc & admc Management Limited v. The Republic of Hungary, Final Award of the International Centre for Settlement of Investment Disputes, 2 October 2006 (“[T]‌he assessment of damages is not a science”.). Articles on State Responsibility (above note 7), at 106, para. 3 of commentary to Article 37; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, United Nations General Assembly Resolution (A Res. 60/​147) (2005), at paras. 15 and 20. Lusitania Cases opinion (above note 16), at 36–​37.

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Since then, scores of international tribunals have relied on Lusitania to support the finding that moral harm is capable of economic valuation, and the principle has become uncontroversial.76 The Articles on State Responsibility expressly refer to Lusitania in making the point that “[n]‌o less than material injury sustained by the injured State, non-​material damage is financially assessable and may be the subject of a claim of compensation”.77 The United Nations General Assembly has adopted the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (the “Principles and Guidelines”) proclaiming that compensation is an appropriate remedy for “mental harm” as well as “moral damage”.78 Some writers have identified the concept of the quantifiability of non-​ pecuniary harm as a general principle of international law.79 Non-​ pecuniary harm comes in multiple forms. The Articles on State Responsibility describe moral damages as including “such items as individual pain and suffering, loss of loved ones or personal affront associated with an intrusion on one’s home or private life”.80 The Inter-​American Court of Human Rights (“iachr”) in the case of Moiwana Village v. Suriname has rereferred to non-​pecuniary harm as “suffering and affliction, detriment to very significant personal values, as well as non-​pecuniary alterations to a victim’s living conditions”;81 and as including “distress, suffering, tampering with the victim’s core values, and changes of a non-​pecuniary nature in the person’s everyday life” in Gutiérrez-​Soler v. Colombia.82 The Lusitania Mixed Claims Commission mentioned “mental suffering, injury to [a claimant’s] feelings, humiliation, shame, degradation, loss of social position or injury to his credit or to his reputation”.83 The most comprehensive definition of moral damages was developed by Wittich: First, it includes personal injury that does not produce loss of income or generate financial expenses. Secondly, it comprises the various forms 76 77 78 79 80 81 82 83

Ahmadou Sadio Diallo (above note 19), at para. 24. Articles on State Responsibility (above note 7), at 101, para. 16 of commentary to Article 36. ga Res. 6o/​47 (adopted 16 December 2005), para. 20 (a) and (d). Lars Markert and Elisa Freiburg “Moral Damages in International Investment Disputes –​ On the Search for a Legal Basis and Guiding Principles” (2013) 14 The Journal of World Investment & Trade 1, at 27. Articles on State Responsibility (above note 7), commentary to Article 36, at 101, para. 16. Judgment of June 15, 2005. Series C, No. 145, para. 191. Merits, Reparations and Costs, [2005] iachr 13, at para. 82. Opinion in the Lusitania Cases (above note 16), at 40.

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of emotional harm, such as indignity, humiliation, shame, defamation, injury to reputation and feelings, but also harm resulting from the loss of loved ones and, on a more general basis, from the loss of enjoyment of life. A third category would embrace what could be called non-​material damage of a “pathological” character, such as mental stress, anguish, anxiety, pain, suffering, stress, nervous strain, fright, fear, threat or shock. Finally, non-​material damage would also cover minor consequences of a wrongful act, e.g., the affront associated with the mere fact of a breach or, as it is sometimes called, “legal injury”.84 The quantifiability of these, as all forms of non-​pecuniary harm, is of course a legal fiction. That is to say, despite the insistence under the law that non-​ pecuniary harm can quantified in monetary terms, as a practical matter there simply is no metric for lived experiences and feelings. As Borchard describes, the “alleged grounds” on which damages in cases of mental suffering are based are “often metaphysical”.85 As much is acknowledged in the case law: the iachr, for example, describes that it is simply “not possible to assign a precise monetary equivalent to nonpecuniary damage”.86 At times the fiction is exposed completely, as in the case of Street Children (Villagrán Morales et al.) v. Guatemala, wherein the iachr awarded compensation for moral harm, defined as “sufferings that cannot be assessed in financial terms”.87 At the echr, judges have acknowledged that it is difficult or impossible to “express in monetary terms the pain of having lost [a]‌son”.88 It would appear that the quantification of compensation for non-​material injury necessarily rests entirely on equitable considerations. This means that moral harm is “estimated in monetary terms” through the “reasonable application of judicial discretion and equity”.89 In Al-​Jedda v. United Kingdom, the echr described that equity “above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the

84 85 86 87 88 89

Stephan Wittich “Non-​Material Damage and Monetary Reparation in International Law” (2004) 15 Finnish Yearbook of International Law 329. Edwin Borchard “Important Decisions of the Mixed Claims Commission United States and Mexico” (1927) 21 American Journal of International Law 516, at 517. Case of the Moiwana Community v Suriname, Members of the Moiwana Village v Suriname, Preliminary objections, merits, reparations and costs, [2005] iachr at para. 191. Merits, [1999] iachr 17, at para. 84. Nagmetov v. Russia, Application No. 35589/​08, Judgment of the European Court of Human Rights, 30 March 2017, concurring opinion of Judges Nussberger and Lemmens, para 5. Moiwana Village v. Suriname (above note 86), at para. 191.

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case, including not only the position of the applicant but the overall context in which the breach occurred”.90 The standard of “equity” admits a significant degree of freedom into judicial decision-​making under the law of reparations. Moreover, international jurisprudence has yet to develop –​or at least acknowledge –​a system for the exercise of this discretion. The degree of discretion exercised appears to depend on the institution, and who you talk to. Some scholars describe “absolute discretion” in the quantification of moral damages,91 a position which is confirmed by some judges.92 According to Dina Shelton, still other judges respond that “[w]‌e have principles, we just do not apply them”.93 Whatever the degree of discretion is, Fikfak reports that judges at the echr “openly admit” that they “struggle” in with the quantification of moral harm and “have no expertise in this respect”.94 The result, as Christine Gray writes, is that awards for moral damages are “inevitably … somewhat arbitrary”.95 Compounding the problem, damages awards for non-​material damage often lack any clear reasoning, perpetuating the problem for States litigants and their advocates.96 By contrast, one might think that claims for material loss should be relatively easy to quantify. These types of losses should be more subject to objective proof –​receipts or statements of income, or reference to standards such as market prices or minimum wages –​which would make the exercise of evaluating the extent of the harm more straightforward. The case law shows that this can be true, but not always. The extent to which judicial discretion enters the equation, it appears, will depend on the circumstances of the case and the type of material harm at issue. In relation to the pecuniary consequences of a wrongful death, for example, the “ ‘Lusitania’ standard” is regularly applied.97 This formulation includes “the amounts (a) which the decedent, had he not been killed, would probably have 90 91 92 93 94 95 96 97

Al-​Jedda v. United Kingdom, Judgment of the European Court of Human Rights, 7 July 2011, at para. 114. Sergey Ripinsky & Kevin Williams Damages in International Investment Law (biicl, 2008), at 308. Dinah Shelton Remedies in International Human Rights Law (Third edition, Oxford, 2015) at 2. Id. Veronika Fikfak “Changing State Behaviour: Damages before the European Court of Human Rights” (2018) 29 European Journal of International Law 1091, at 1097. Christine Gray Judicial Remedies in International Law (Clarenden, 1990), at 171. Stephan Wittich “Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility” (1998) 1 Australian Review of International and European Law 101. Para 18 of the Commentary to Art. 36 of the Articles on State Responsibility (above note 7), referring to Opinion in the Lusitania cases (above note 16), at 35.

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contributed to the claimant … [and] (b) the pecuniary value to such claimant of the deceased’s personal services in claimant’s care, education or supervision”.98 Even from its own wording it is clear that applying this formulation will require speculation. Indeed judges are asked what a person, had they lived, would “probably” have earned, and how much of that income a dependant would “probably” have received. It is also clear that determining the value of “care”, “education” or “supervision” is an exercise requiring a level of guesswork. After all, who is to say that the dependent would have received a secondary or tertiary education, assuming that they would qualify therefore, for example? And, if they did, who can say what that would cost, given the variations at issue. Indeed, the cost of a degree from an Ivy League school is one thing, that of a community college is another. Even items which one might consider as being easily evaluated in economic terms, such as assets and businesses, will involve approximations. In the valuation of a company, for example, the Iran-​US Claims Tribunals in the aig v. Iran case made the finding that It might be possible to draw some conclusions regarding the higher and the lower limits of the range within which the value of the company could reasonably be assumed to lie. But the limits are widely apart. In order to determine the value within those limits, to which value the compensation should be related, the Tribunal will therefore have to make an approximation of that value, taking into account all relevant circumstances in the case.99 Indeed, in the case of Aminoil v. Kuwait –​overseen by Sir Gerald Fitzmaurice no less, among others –​the tribunal held that It is well known that any estimate in money terms of amounts intended to express the value of an asset, of an undertaking, of a contract, or of services rendered, must take equitable considerations into account.100 In some cases, the harm will not be quantifiable because of the limits of existing knowledge. For example, in the case of Certain Activities Carried Out by 98 99

Id. American International Group, Inc. and American Life Insurance Company v. The Islamic Republic of Iran and Central Insurance of Iran (Bimeh Markazi Iran), Award of the Iran-​ United States Claims Tribunal, 19 December 1983, at para. 109. 100 Aminoil v. Kuwait, Award of the Arbitration Tribunal, 24 March 1982, at para. 78.

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Nicaragua in the Border Area (Costa Rica v. Nicaragua), the icj was requested to attach a monetary value to goods and services provided by the ecosystem, namely “trees, other raw materials, gas regulation and air quality services, and biodiversity”.101 The Court acknowledged that international law does not prescribe any specific method of valuation for the purposes of compensation for environmental damage.102 The evidence showed that Nicaragua had wrongfully felled close to 300 trees and cleared 6.19 hectares of vegetation within Costa Rican territory, making it self-​evident that Costa Rica had suffered harm to its ecosystem.103 Nevertheless, Costa Rica was unable to establish the extent of the environmental damage to its raw materials, biodiversity and air quality. One can appreciate why. As regards the lost “gas regulation and air quality services” alone, it is not clear that the state of science is such that it is even possible to measure the impact of 300 trees on “gas regulation” or “air quality” in a given area, or the rate at which regeneration might occur relative to the pre-​felling capacity of a given tree. The extent of the harm under this head of damage is simply not knowable, as a matter of science. In the circumstances, the Court acknowledged that the ordinary rules as to the burden of proof “may be applied flexibly” and that, in cases of environmental damage, an “absence of certainty as to the extent of damage does not necessarily preclude it from awarding an amount that it considers approximately to reflect the value of the impairment or loss of environmental goods and services”.104 In the result, the Court relied on elements of the Parties’ proposed methodologies which it found “reasonable” and made its award based on “equitable considerations”.105 The basis for this decision was the Trail Smelter case, wherein the tribunal opined that Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the

101 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (above note 19) at para. 75. 102 Id., para. 52. 103 Id., para. 75. 104 Id., para. 86. 105 Id., at paras. 35, 52 and 86.

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damages as a matter of just and reasonable inference, although the result be only approximate.106 In still other cases, the quantification of the harm suffered will be complicated by an uneven access to information. In certain cases, by virtue of the nature of the violation or the actors involved, the respondent State may be in a better position to establish the extent of the harm suffered or indeed the claimant may be in a disadvantaged position to do so. In the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), for example, the Court acknowledged that Mr. Diallo’s expeditious expulsion from the Democratic Republic of the Congo may have “diminished the ability of Mr. Diallo and Guinea to locate the certain documents, calling for some flexibility by the Court in considering the record before it”.107 As in the Trail Smelter case, it would be a perversion of justice to deny compensation on the basis of a lack of evidence of the extent of the harm in such cases. 4.2 The Importance of a Principled Approach It is clear from the above that the quantification of compensation will often involve guesswork and approximation. The intent of this observation is not to discredit compensation as a pseudoscience. Quite the opposite. As was determined by Lusitania and has been affirmed so often since, “damages are no less real because of the difficulty of estimating them”.108 This is all the more so for violations of jus cogens norms, which provide the clearest examples of cases where significant harm can be presumed from the nature of the violation even in the absence of specific evidence. Having found liability for a violation of the utmost seriousness, justice would surely not be served if international tribunals were to impose overly-​strict standards of evidence at the reparations phase. By the same token, in the absence of clear evidence, international tribunals are forced to make their determination based on “reasonableness” and “equitable considerations”. Monetary awards based on these grounds, however, run the real risk of appearing arbitrary. The case against arbitrariness is not helped by the fact that compensation awards are frequently determined without any real explanation of the methodological basis for the valuation. In addition, lump-​sum awards are often made for all heads of material or non-​material 106 Trail Smelter case (United States, Canada), Judgment of the United Nations, Reports of International Arbitral Awards (riaa), 16 April 1938 and 11 March 1941, Vol. iii, 1920. Emphasis added. 107 Ahmadou Sadio Diallo (above note 19), at para. 33. Emphasis added. 108 Id., Separate Opinion, Judge Greenwood, para. 7.

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damage without specification as to the heads of damage, or even the distinction between moral and material damages, making it all the more difficult to infer the applicable methods and factors affecting the valuation. The case law demonstrates that a shift is needed in order for the law of damages to maintain its integrity. The principle of equity, integral though it may be, introduces a degree of discretion so significant that without conceptual development it may discredit the law of reparations. As Judge Greenwood declared in his separate opinion in Diallo, “the determination of compensation should be no less principled because the task is difficult and imprecise”.109 Understanding the exercise of judicial discretion in the quantification of compensation takes on particular significance in the context of claims concerning jus cogens violations, where the extent of the harm is likely to be serious. The pecuniary consequences of a violation of the prohibition on war or genocide, for example, risk being extensive (even crippling) for States. This is true for both the wronged State, which has suffered those consequences, and the wrongful State, which must pay for them. To add to this, any award made will be politically sensitive and carry great moral weight, given the nature of the violation at issue, the potential scale of the awards and the serious implications which these may have for future peace and stability between the States involved. Ensuring that the judicial discretion is principled and reasoned is particularly important in these circumstances. 4.3 Finding a Way Forward A possible solution would be for decision-​makers to clearly describe the factors which underpin their awards or constitute their “equitable considerations”. In other words, the case law should spell out the exact considerations which are given weight in a determination of the equities of the case. The relative weight which is given to each of these considerations might also be detailed. Judge ad hoc Dugard, in the Certain Activities case, advocated for such an approach. His dissenting opinion criticised the majority decision on the grounds that it suggested, without clearly asserting, the relevance of equitable considerations in awarding compensation for damage caused … There [were] a number of equitable considerations that the Court might, and in my judgment, should have taken into account in its quantification of damages. These include the protection of the environment, the importance 109 Ibid.

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attached to measures to combat climate change in today’s world, and the gravity of the respondent State’s actions.110 As Dugard pointed out, however, despite the Court having stated that its decision would be based on equitable considerations, the only consideration which it explicitly took account of was “the character of the affected area as an internationally protected wetland”.111 By contrast, Dugard gave content to each of the factors which he listed as weighing on the equities of the case, providing his reasons for the relevance of each to the case at hand and the impact that that analysis should have on the quantum of the award. Accepting that the quantification of harm is not a science, as such, does not mean that the decisions of international tribunals might equally reflect ambiguity in their reasoning. The exercise of judicial discretion can, and should, be transparent. Among the equitable considerations that Dugard listed in the Certain Activities case, he drew on a factor which most –​if not all –​decisionmakers weigh in the balance in their valuation of harm. He stated that In assessing compensation in this case, the Court should have had regard to the gravity of Nicaragua’s unlawful activities. The amount of compensation should be assessed so as to fit the wrongful conduct.112 Dugard finds ample support for the view that the seriousness of the violation is relevant to the quantification of a compensation award. Indeed, Whiteman, writing in 1937, observed that “the gravity of the offense” is “borne in mind in practically all cases”.113 In the Commentary on the Draft Articles on State Responsibility, the ilc declared that, “[a]‌s to the appropriate heads of compensable damage and the principles of assessment to be applied in quantification, these will vary, depending upon [amongst other factors,] content of particular primary obligations”.114 International courts and tribunals have long –​at least implicitly –​taken into account the gravity of the violation in the assessment of compensation. The British Commissioner in the 1872 Alabama Claims arbitration was unambiguous

110 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) (above note 19), Dissenting Opinion Judge Ad Hoc Dugard, at para. 29. 111 Id., para. 29. 112 Id., para. 41. 113 Marjorie Whiteman Damages in International Law (Vol. i, Washington US Govt., 1937), at 385. 114 Para. 7 of the Commentary to Articles on State Responsibility (above note 7).

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in his view that “arbitrators should … take into account not only the loss incurred but the greater or less gravity of the default itself”.115 The Alabama Claims decision drew support in the dissenting opinion of Judge Azevedo in the Corfu Channel Case (United Kingdom v. Albania), who felt it necessary to clarify that “in spite of the gravity of the offence, it is not the penal law which is being applied”.116 The echr acknowledges that the “absolute nature” or “fundamental character” of a right will play a role in the award of non-​pecuniary damages.117 The nature of the violation was explicitly taken into account in the assessment of compensation by the eecc. The Commission stressed the need to achieve “a measure of proportion between the character of a delict and the compensation due” and commented that it had been informed by the “gravity” and “seriousness” of the violations in making its determination in respect of compensation.118 Allowing the nature of the violation to weigh in the balance of the equities may be criticised on the basis that, strictly speaking, the focus of reparations ought to be the extent of the harm and not the nature of the wrongful act. In the absence of clear evidence as to the extent of the harm, however, the degree to which international law insists on the application of the “full” reparation standard may be more flexible. An alternative approach would be to abandon the victim-​focus of reparations and instead set a norm-​specific standard for reparations award. Given the general acceptance that international tribunals appear to accord to the Chorzow test for reparations, it is surprising to note that the idea is in fact not at all novel to jus cogens cases. The practice of the South African government is relevant as the only existing example of an apartheid reparations scheme in practice. Within this scheme, the State legislature designed the Regulations Regarding Reparations to Victims in order to support the work of the Truth and Reconciliation Commission.119 It is noteworthy that, within these regulations, monetary compensation was set at a fixed amount (zar 30,000.00) for all persons identified by the Truth and Reconciliation Commission as a “victim”, irrespective of their individual circumstances or the precise nature of the harm 115 Sir Alexander Cockburn’s dissenting opinion in the Alabama Claims Arbitration of September 14th, 1872, in: Papers Relating to the Treaty of Washington (1872), 305. 116 Corfu Channel case (above note 18), at Dissenting Opinion of Judge Azevedo, at 12. 117 Fikfak (above note 94), at 105. 118 eecc, Ethiopia’s Damages Claims (above note 59), at paras. 103, 310–​312. 119 South African Department of Justice and Constitutional Development, Promotion of National Unity and Reconciliation Act No. 34 of 1995: Regulations Regarding Reparation to Victims, Government Gazette No. 25695 available at https://​www.justice.gov.za/​trc/​ legal/​20031112-​gg25695_​nn1660.pdf (accessed on 27 November 2020).

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suffered.120 Similarly, by a decision of its Governing Council, the uncc established claims categories and set monetary “ceilings” for specific types of harm, such as physical injury or mental pain and anguish.121 At the echr, a detailed study of compensation awards has discovered that victim or case-​specific variables (such as “a victim’s assessment of loss, their particular circumstances or vulnerability, and distress suffered”) do not appear to not have a significant bearing on the final awards made.122 Fikfak states that there is “little” variation in the amounts awarded for findings of specific types of violations. In relation to violations of Article 3 of the European Convention on Human Rights (which provides that “[n]‌o one shall be subjected to torture or to inhuman or degrading treatment or punishment”),123 Fikfak was able to conclude that 74.5% of all Article 3 applicants are awarded compensation below 10,000 Euros, and in 94.8% of victims, the amount is below 20,000 … The consistency of the Court’s approach is such that out of 1128 applicants whose Article 3 rights were found to have been violated in the last 13 years, only one stands out as a clear outlier: a case of multiple occasions of torture, which exceptionally brought the victim 105,000 Euros. Even if the Court enjoys discretion when it comes to the award of damages, it seems that it is choosing to exercise it in a consistent, predictable manner. 124 The approach of the echr may present something of a compromise between the fixed-​sum approach to quantification, versus the “full” reparation standard. A floor and ceiling amount is established based on the nature of the harm, with some room for the individualisation of the award based on the circumstances of the case. As such, “if the victim is particularly vulnerable, the award will go towards the maximum limit”.125 Controversial as it may seem to move away from the “full” reparation standard, fixed (or ceiling) sums would at the very least provide transparency and introduce a degree of certainty to compensation awards. The concern is, 1 20 Id. 121 “Determination of ceilings for compensation for mental pain and anguish”, Decision taken by the Governing Council at its fourth session, at the 22nd meeting, held on 24 January 1992 (S/​ac.26/​1992/​8) (1992). 122 Fikfak (above note 94), at 107. 123 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. 124 Fikfak (above note 94), at 107. 125 Octavian Ichim Just Satisfaction under the European Convention on Human Rights (Cambridge, 2015) 121, at para. 6.5.3.

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however, that an approach of this type will not always be possible in cases of where the number or identities of the victims are not known. In addition, in cases where the harm at issue results from a systemic violation (i.e., apartheid or slavery) or arises in a post-​conflict context, the risk of assessing the actual value of the harm or providing fixed-​rate reparations at on an individualised basis is that the sum of the compensation is likely to amount to more than most States can afford to pay. Tomuschat declares that “almost inevitably, a State having gone through the bitter experience of war finds itself at the brink of financial and economic collapse. It simply cannot shoulder the burden of making good all the harm caused by violations of the jus contra bellum and the jus in bello”.126 In these circumstances, there are compelling reasons to abandon the standard of full reparations altogether. Once again, this idea is in fact neither new nor controversial in practice. In reaction to the Versailles reparation regime’s failure to restore peace and economic stability,127 it is noteworthy that reparations agreements concluded after World War ii have openly taken into account the obligated party’s ability to pay.128 A noteworthy modern example is found in the United Nations’ Security Council Resolution 687, establishing the uncc, which requested the Secretary-​General to develop “mechanisms for determining the appropriate level of Iraq’s contribution to the Fund […] taking into account the requirements of the people of Iraq, Iraq’s payment capacity […] and the needs of the Iraqi economy”.129 Kalshoven goes so far as to say that the economic capacities have been the determining factor in post-​conflict lump-​sum agreements.130 Nevertheless, academic consensus is that international custom has not yet embraced a limit based on capacity to pay.131 In fact, a limit on full reparation 126 Christian Tomuschat “State Responsibility and the Individual Right to Compensation Before National Courts” in Andrew Clapham, Paola Gaeta, Tom Haeck (eds.) and Alice Priddy (Assistant eds.) The Oxford Handbook of International Law in Armed Conflict (2014) 826. 127 Pietro Sullo and Julian Wyatt “War Reparations” in Max Planck Encyclopedia of Public International Law (2014) para 19. Available at http://​www.lalive.ch/​data/​publications/​ EPIL_​War_​Reparations_​(1).pdf (accessed 9 October 2019). 128 Article 14 of the 1952 Treaty of Peace with Japan; Conclusions of Protocol of the Berlin Conference of the Three Heads of Government of the ussr, US, and UK, Protocol of Proceedings [on 1 August 1945], at Section iib para. 19; Article 74A (3), Article 74B (3) 1947 Treaty of Peace with Italy. 129 United Nations Security Council Resolution 687 (S/​r es/​687) (1991). 130 Fritz Kalshoven “State responsibility for War-​ like Acts of the Armed Forces” 40 International and Comparative Law Quarterly (1991) 827, 836. 131 Bert-​Wolfgang Eichhorn “Reparation als völkerrechtliche Deliktshaftung –​Rechtliche und praktische Probleme unter besonderer Berücksichtigung Deutschlands“ (1918–​1990)

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was expressly rejected by States participating in the drafting of the Articles on State Responsibility. An initial draft of the Articles included the proviso that “[i]‌n no case shall reparation result in depriving the population of a State of its own means of subsistence”.132 The submissions that States made in protest over the inclusion of this text highlight the serious conceptual and practical problems with a possible limit on full reparation. The United Kingdom and us criticised the rule for ambiguity and subjectivity, the former submitting that “[i]t is not clear what level of financial hardship is contemplated, nor how it is to be determined if that level has been reached in any particular case”.133 The US,134 Australia,135 Israel136 and Japan137 expressed concern that the rule, and particularly its perceived abstruseness, could be “abused”138 as a “loophole”,139 allowing States to use their limited economic capacity “as a pretext”140 to avoid making full reparation. Ultimately, the proviso was struck from the text. Crawford commented that it “created more problems than it resolved”.141 Still more issues are however imaginable. For one, to the extent that a State is not able to make good the harm that it perpetrates, it is the victim-​State that is made to shoulder the burden of the wrong.142 This does not seem just –​why should the wrongdoer State be prioritised at the expense of the injured State?

132 133 1 34 135 136 137

1 38 139 140 141 142

in Nomos-​Verlag (1992) 75, at 112; Elke Schwager “Reparation for Individual Victims of Armed Conflict” in Kolb and Gagglioli Research Handbook on Human Rights and Humanitarian Law (2013) 637: “Whilst in the past reparation paid as a consequence of armed conflict has often been limited, no rule has evolved that the economic resources necessarily have to be taken into account.”; Pierre D’Argent Les Réparations de Guerre en Droit International Public: la Responsabilité Internationale des États à l’Épreuve de la Guerre (Brylant, 2002) 740. Articles on State Responsibility adopt, Report of the International Law Commission, Forty-​ Eighth Session, General Assembly Official Records (A/​51/​10) (1996), at 66. “State Responsibility: Comments and Observations Received from Governments”, Yearbook of the International Law Commission 1998, vol. ii (Part One) (A/​c n.4/​488 and Add.1–​3) (1998), at 145. Id., at 156. A/​C.6/​54/​s r.23 (1999), at para. 43. Id., at para. 60. A/​C.6/​54/​s r.23, at 108. Japan was in this comment responding to an exception provided in then-​article 43, paragraph (d), which provided for a limit to full reparation if that reparation would seriously jeopardize the political independence or economic stability of the State which had committed the internationally wrongful act. Israel (A/​C.6/​54/​s r.23), para. 60. United States (A/​C.6/​54/​s r.23), at 156; and Israel (A/​C.6/​54/​s r.23), para. 60. Japan (A/​C.6/​54/​s r.23), at 108. Third Report of the Special Rapporteur, Summary record of the 2613th meeting, 1 Yearbook of the International Law Commission 2000, Vol. i (A/​c n.4/​s r.2613) (2000) at 5, para. 18. Id., Commentary to draft Article 42(1),(3),(4), at 12–​13, para. 22.

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Moreover, if the standard of full reparation were to be relaxed for mass harm or gross violations, it may operate to incentivise serious transgressions by offering a perverse type of group discount. Further, treating economically weak States to a lower standard of reparation could also incentivise poverty. Although it may seem hard to believe that a State would deliberately act against its own economy, it is certainly not beyond the realm of possibility. Indeed, Myerson ventures that “a crude calculation could actually suggest that the Great Depression, as a way of escaping the reparations, might not have been such a bad investment for Germany”.143 5

Concluding Observations

In light of all of the above, it becomes clear that the notion of full reparations, combined with the nature and seriousness of jus cogens violations, creates conundrums of troubling proportions for international tribunals in their consideration of an ever-​increasing volume of claims for compensation. On the one hand, compensation is limited by the standard of full reparation. In its application, tribunals must steer a course between acknowledging the gravity of a wrong violating a jus cogens norm and not punishing the wrongdoer in its award. Yet the principled stance taken against punitive damages would, strictly speaking, prohibit tribunals from considering the “seriousness” of the violation as a factor in the quantification of the harm. Indeed, the focus of reparations law has traditionally been the extent of the harm and not the nature of the norm at issue. However, and herein lies the rub, jus cogens violations will frequently give rise to types of harm that are difficult to quantify either due to their extent or character (or, likely, both). In these circumstances, the case law shows that tribunals have not been willing to turn claims for compensation down on the basis of a failure to meet the burden of proof. By the same token, in the absence of evidence as to the extent of the harm, the gravity of violation is a factor which will clearly have an impact on the quantification exercise. How can decision-​makers avoid these issues but by making awards that are either wholly unreasoned or based on “equitable considerations” that are not explained? On the other hand, compensation is over-​extended by the standard of full reparation in jus cogens cases. Tribunals must either faithfully apply the

143 Roger B. Myerson “Political Economics and the Weimar Disaster” 160 Journal of Institutional and Theoretical Economics (2004) 187, at 205.

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standard of full reparation, thereby imposing potentially crippling debts in contravention of the human rights rule that “[i]‌n no case may a people be deprived of its own means of subsistence”,144 or limit the award to account for capacity to pay, thereby short-​changing the victim-​State and potentially creating perverse incentives. Furthermore, in choosing between these options, judges will have to bear in mind that they are (usually) not trained economists, there is no inter-​State precedent on how to apply a limit to the standard of full reparation based on the capacity to pay, and academic commentary proposing a limit to full reparation does not provide practical guidance. Still more troubling is the fact that these conundrums are not merely imagined. The problem of capacity to pay has already played out in one case involving claims for compensation following a war between two low-​income States, and a second such case is currently pending at the icj. In the former, the eecc stated that “these countries are among the poorest on earth”, yet in both rounds of damages proceedings, both Parties “sought amounts that were huge, both absolutely and in relation to the economic capacity of the country against which they were directed”.145 The Commission determined that it “could not disregard the possibility that large damages awards might exceed the capacity of the responsible State to pay or result in serious injury to its population if such damages were paid”.146 Beyond this, however, the Commission’s awards reveal nothing as to the methodology used, if any, to incorporate capacity to pay into the quantification of harm. It will as such be of little practical use to future tribunals. Tribunals would be greatly assisted by the ilc’s further engagement with these issues. Existing rules and precedents relating to the award of compensation should be invoked in the pursuit of a balance between the exigencies of the particular issues raised by jus cogens cases and the standard of full reparation. These include notions of equity, fairness and reasonableness and the principle that the award of damages should not destroy a wrongful State. The frank airing of these issues may indeed create more problems than they are able to solve, at least immediately. Nevertheless, the caseload of claims for compensation for jus cogens violations continues to rise, and the warning toll of the Treaty of Versailles rings loud. 144 1976 International Covenant on Economic, Social and Cultural Rights (icescr) and the 1976 International Covenant on Civil and Political Rights (iccpr). Both Covenants provide in common Article i (2). 145 eecc, Eritrea’s Claims (above note 60), at paras. 19-​22; reproduced in Ethiopia’s Award (above note 59), at paras. 19-​22. 146 Id.

Chapter 17

Peremptory Norms and Resolutions of the United Nations Security Council Daniel Costelloe 1

Introduction

The relationship between peremptory norms and resolutions of the United Nations (“UN”) Security Council raises important issues in theory and practice, which have come into increasingly sharp focus since the end of the Cold War. This is no coincidence. Rather, it is a result of the fact that the Security Council has adopted resolutions with so-​called general “legislative” features, such as Resolution 1373 (2001) on terrorist financing or Resolution 1540 (2004) on non-​State actors and nuclear, chemical or biological weapons. Such resolutions create general obligations for all UN Member States, rather than obligations that are specific to a particular situation, with the result that their compatibility with other rules and principles of international law may need to be tested.1 This Chapter explores the relationship between peremptory norms and Security Council resolutions, with particular regard to the legal consequences that peremptory norms of general international law may have for Security Council resolutions and for the UN Charter’s collective security apparatus. There is limited international practice directly addressing the question concerning the effects of peremptory norms of general international law for acts of the Security Council. This Chapter also reflects on the International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), adopted on first reading in 2019. Before examining the relationship between peremptory norms and Security Council resolutions, it is necessary to clarify an important and oft-​ overlooked terminological imprecision. Article 25 of the UN Charter provides

1 Draft Conclusions on Peremptory Norms of General International law (Jus Cogens), adopted by the Commission on first reading, Report of the International Law Commission, Seventy-​ First Session, General Assembly Official Records (A/​74/​10)(2019).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_018

442 Costelloe as follows: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” It is common to speak of Security Council resolutions, because in practice resolutions are the format in which virtually all Security Council decisions are published. Indeed, the documents themselves are identified as resolutions and are assigned a number. Yet the relevant legal act under Article 25 of the Charter is Security Council’s decision, not the resolution of which that decision forms part. Security Council resolutions do not enjoy any distinct legal status under the Charter, and indeed the word “resolution” appears nowhere in the Charter, let alone in connection with the Security Council. The Security Council’s 1946 Provisional Rules of Procedure in Chapter vi (“Conduct of Business”) refer to proposed resolutions and draft resolutions. Further, Rule 46 under Chapter viii (“Languages”) refers to “resolutions and other documents”. The Charter, by contrast, in Article 25 only refers to “decisions” of the Security Council; or, in a variety of other articles, to the Security Council’s power to “decide”.2 Under Chapter vii of the Charter, the Security Council has the power not only to “decide” but also, under Articles 39 and 40, to make “recommendations”. Acts of the Security Council can also take other forms, such as declarations. In principle, it would be possible for the relevant legal act under Article 25, i.e., the Security Council’s decision, to be published in a form other than a resolution. For example, it would be possible, in principle, for a statement by the President of the Council to contain the Security Council’s decision, and there have been some examples of this in practice.3 The vast majority of Security Council decisions are, however, published in the form of resolutions.4 This would certainly include the types of decisions most likely to require testing against peremptory norms. Terminological imprecision notwithstanding, this Chapter in general refers to Security Council “resolutions” or “acts” and only to Security Council “decisions” where precision so requires.

2 Under the Charter and, even more so in subsequent Member State practice, the term “decision” has not been used consistently. Loraine Sievers and Sam Daws The Procedure of the UN Security Council (4th Edition, Oxford, 2014), at 373–​374. 3 Id., at 374–​376. 4 Ibid.

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The Possibility and Consequences of a Conflict between a Security Council Resolution and a Peremptory Norm

2.1 Possibility of a Conflict The first question is whether it is possible for a Security Council resolution to be in “conflict” with a peremptory norm. Here, the legal basis of the term “conflict” is not Article 53 or 64 of the Vienna Convention on the Law of Treaties (“vclt”), because these articles do not apply as treaty provisions to Security Council resolutions. The vclt and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations5 do not apply to the rules of an international organization.6 These two instruments also do not apply to legal instruments adopted under a treaty but that are not themselves treaties, including Security Council resolutions.7 Nevertheless, it might seem inconsistent with the overall principles reflected in Articles 53 and 64 of the vclt if States were in a position to establish an international organization and confer powers on it to adopt legal instruments that are binding on the member States, but which are conceivably in conflict with peremptory norms of general international law. Where member States of an international organization act through one of the organization’s organs, they may be in a position to avoid what would otherwise be a treaty in conflict with a peremptory norm in a manner that instrumentalizes the organization’s separate legal personality. Further, while under the vclt the term “derogation” in Articles 53 and 64 refers only to treaties, a Security Council resolution containing a decision arguably in conflict with a peremptory norm may also seem like a type of derogation. In practice, a Security Council resolution could be in conflict with a peremptory norm simply on its face. That might be the case where it contained a decision requiring States to assist in carrying out acts that amounted to serious violations of international humanitarian law. Thus, a Security Council resolution might be in conflict with a peremptory norm if it contained a decision creating an obligation for UN Member States, under Article 25 of the Charter, the performance of which necessarily amounted to the breach of an obligation under 5 Not yet in force. 6 See Article 5 of the 1969 Vienna Convention on the Law of Treaties; Article 5 of the 1986 Vienna Convention on the Law of Treaties between State and International Organisations or between International Organisations. 7 Article 1 of the vclt provides: “The present Convention applies to treaties between States.”

444 Costelloe a peremptory norm of general international law. Political realities, on the other hand, make such a decision almost inconceivable. It might also be possible for a conflict to arise out of the application of a decision that is otherwise unobjectionable on its face.8 This may even occur “inadvertently or in an unforeseen manner”, as Judge ad hoc Lauterpacht suggested in a separate opinion in the provisional measures phase of Application of the Convention on the Prevention and Punishment of the Crime of Genocide.9 The line between an instrument conflicting with a peremptory norm on its face and an instrument conflicting with a peremptory norm in its application can be difficult to draw, but it is important to appreciate that this determination itself is typically already the outcome of interpretation. Interpretation of the Security Council resolution in its context and in light of other applicable rules of international law may already provide an answer as to whether its application would be in conflict with a peremptory norm. 2.2 Legal Consequences of a Conflict Under the vclt, the consequences of a treaty conflicting with a peremptory norm are set out in Articles 53 and 64 and more specifically in Article 71. The structure of the vclt, and in particular the combined operation of Articles 42 and 69, make it clear that despite the words “is void” in Articles 53 and 64, respectively, it is Articles 65 and especially 66 that authoritatively establish the invalidity of a treaty and other legal consequences following from a treaty’s conflict with a peremptory norm. None of these provisions apply as treaty provisions in relation to an international legal instrument such as a Security Council resolution, and any legal consequences of peremptory norms for such instruments would instead arise under general international law. Where a Security Council resolution conflicts with a peremptory norm within the meaning above, by contrast, there are various possible outcomes: (a) the entire resolution could be invalid; (b) the provision(s) containing the conflicting decision(s) could, to the extent possible with respect to the rest of the resolution, be severed; and/​or (c) the resolution as a whole and the conflicting provision(s) could, to the extent possible, be interpreted in such a manner as to avoid a conflict. The grounds for and consequences of invalidity by reason of a legal instrument’s content are most developed in the law of treaties under the vclt.10 8 9 10

Separate Opinion of Judge ad hoc Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, icj Reports 1993, p. 325, at paras. 100–​102. Id., at para. 102. Notably under Articles 46–​53, 69 and 71 vclt.

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Under the Charter, by contrast, there is no clear basis on which a Security Council resolution could be found to be invalid by reason of its content. A Security Council resolution might be considered invalid if it was adopted on the basis of a procedural flaw, for example. Invalidity on the basis of a resolution’s content, however, is a more difficult proposition. Even where a conflict between a Security Council resolution and a peremptory norm of general international law arises, it is not clear, based on international practice, that the primary legal consequence for the Security Council resolution under general international law would be the resolution’s invalidity, as is the case in the law of treaties, as opposed, for example, to its mere inapplicability. Still, it could be argued that, where a Security Council resolution conflicts with a peremptory norm, the resolution is invalid under general international law, or at least that the provision(s) giving rise to the conflict are invalid and severable. Such an argument might also involve accepting the reviewability of Security Council acts allegedly in conflict with peremptory norms by the icj11 –​similar to judicial review mechanisms under several constitutional systems –​as an institutional feature of the UN. This argument proceeds by analogy to the law of treaties, and it is defensible as a matter of principle, but it seems to assume its desired outcome. The argument that a Security Council resolution is invalid as a matter of general international law remains largely untested in international practice, and there are difficulties associated with this suggestion. Ultimately, there is little basis in international practice supporting the argument that a Security Council resolution in conflict with a peremptory norm of general international law is invalid as a whole, or even that the provision(s) generating the conflict are invalid but severable. The Security Council has the power under the Charter to take action in certain situations, including the power to adopt decisions that by virtue of Article 25 of the Charter create obligations for Member States. These obligations are derivative of the Charter. In its orders indicating provisional measures of 14 April 1992, in the two Lockerbie cases, the icj stated that such obligations prevailed over obligations under any other international agreement by operation of Article 103 of the Charter.12 Security Council Resolution 748 (1992), which 11

12

The invalidity of a treaty under Articles 53 and 64 vclt was only acceptable to a significant number of States at the United Nations Conference on the Law of Treaties if the Convention provided for compulsory dispute settlement with respect to disputes under these provisions. The centrality of this provision is reflected in several States’ objections to other States’ reservations to Article 66. Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional

446 Costelloe was one of the resolutions at issue and which formed a basis for the United Kingdom’s and the United States’ preliminary objections to the Court’s jurisdiction, had been adopted under Chapter vii of the Charter. The obligations under Article 25 are obligations under the Charter within the meaning of Article 103.13 The only possible textual basis in the Charter for the suggested invalidity of a Security Council resolution or the severability of its provisions is Article 24(2) of the Charter. Article 24(2) provides: “In discharging these duties [set out in Article 24(1)] the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” That provision, however, does not address the legal consequences of a failure to act in accordance with the purposes and principles of the UN, nor does it provide for any possible invalidity of Security Council acts. On the contrary, Article 24(2) arguably creates a presumption that Security Council resolutions are in conformity with the purposes and principles of the UN. To the extent that these purposes and principles include international human rights obligations, Security Council obligations would presumptively be in conformity with those as well.14 The fact that there is no specific Charter-​based review mechanism of Security Council acts arguably also supports a presumption of validity.15

Measures, icj Reports 1992, p. 3, at para. 39; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, icj Reports 1992, p. 114, para. 42. 13 The question whether Security Council decisions in resolutions not adopted under Chapter vii of the 1945 Charter of the United Nations were binding by virtue of Article 25 of the Charter arose, more controversially, in the icj’s advisory opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, p. 16. See Sievers and Daws (above note 2), at 387–​389, 391. The Court in Namibia stated that the declaration in paragraph 2 of Resolution 276 (1970), according to which the continued presence of South African authorities in Namibia was unlawful, was binding upon Member States by virtue of Article 25 (para. 113). This was the position notwithstanding the fact that the Council had not adopted enforcement measures under Chapter vii of the UN Charter. See Sievers and Daws (above note 2), at 385–​388. 14 See Al-​Jedda v. United Kingdom, Judgment of the Grand Chamber of the European Court of Human Rights, 7 July 2011. 15 On the prima facie formal validity of resolutions of UN organs, see generally Namibia (above note 13), at para. 20. There, the Court said that “[a]‌resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ’s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted.”

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It is important to have regard to the Security Council’s function under the Charter to maintain international peace and security, and the fact that in exercising this function the Security Council acts on Member States’ behalf. Article 24(1) of the Charter provides as follows: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. While the absence of a review mechanism, particularly by the UN’s principal judicial organ, the International Court of Justice, may seem surprising in light of the importance and sensitivity of the Security Council’s mandate, the drafters of the Charter chose not to provide for one. If Security Council acts were, contrary to the argument above, not presumptively in conformity with the purposes and principles of the UN and a resolution were legally speaking capable of being invalid where it conflicts with a peremptory norm, there is a risk that Member States might, in the absence of an authoritative review mechanism, resort to unilateral determinations of invalidity. A unilateral determination of invalidity, presumably accompanied by a refusal to comply with obligations under the resolution, is difficult to reconcile with the Charter’s collective security apparatus, which has always been a central pillar of the Charter. This would be in tension with the Security Council’s functions in that regard under Article 24(1) and its power to enforce collective security through coercive measures under Chapter vii. From a historical perspective, the drafters of the Charter would not have countenanced the possibility of unilateral determinations of invalidity and refusals to comply with obligations stemming from Security Council decisions.16 There is nonetheless a certain degree of judicial and academic support for the proposition that a Security Council resolution in conflict with fundamental rules of international law is invalid, or at least that it does not create rights or obligations. The Security Council, like other UN organs, it is argued, exists within the confines of international law, both under the Charter and under

16

Michael Wood, “The Security Council’s Powers and their Limits”, Second Lecture delivered during the Hersch Lauterpacht Memorial Lectures on 8 November 2006, held at the Lauterpacht Centre for International Law at the University of Cambridge, at para. 64. See further Nico Krisch Selbstverteidigung und kollektive Sicherheit (Springer, 2001), at 45–​48.

448 Costelloe general international law.17 The UN has many institutional features, including its near-​universal membership, that render it different in degree from other international organizations. Yet it is not different in kind from other organizations. It is still a legal subject of and limited by international law. Judge ad hoc Lauterpacht in his separate opinion to the Court’s Order of 13 September 1993 in Application of the Convention on the Prevention and Punishment of the Crime of Genocide addressed these questions directly. He took the view that even the Security Council did not have the power to impose obligations on Member States that were incompatible with Member States’ obligations under peremptory norms. He noted that Security Council resolutions could be subject to the legal effects of peremptory norms of general international law.18 He also rejected the suggestion that States were unconditionally under a legal obligation to comply with decisions in a Security Council resolution by virtue of Article 103 of the Charter, regardless of the resolution’s compatibility with a peremptory norm.19 Judge ad hoc Lauterpacht was the only judge to explore the question whether a Security Council decision would be valid if it required Member States to breach an obligation under a peremptory norm. The question, though, is not so much whether the Security Council is subject to international law, but rather how any limitations to the Security Council’s powers can be enforced. Arguably, a Security Council resolution could be considered invalid on the basis of implied limitations to the Council’s powers under the Charter, or on the basis of limitations to its powers stemming from general international law, where a resolution conflicts with a peremptory norm. It is more difficult, however, to make an authoritative determination of invalidity in the absence of a review mechanism and to determine what the consequences of such a finding of invalidity would be. While unilateral determinations can be a feature of all legal systems, they are more problematic in a system without compulsory adjudication, and in particular where the UN’s collective security apparatus might be jeopardized. In the absence of a competent judge and an authoritative determination on the validity of a resolution, Member States might make unilateral

17 See Admission of a State to the United Nations (Charter, Art. 4), Advisory Opinion, icj Reports 1948, p. 57, at 64. 18 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (above note 8), Separate Opinion of Judge ad hoc Lauterpacht, at para. 100. 19 Ibid. See further Second Lecture by Michael Wood (above note 16), at para. 37: “It is widely considered that this is a correct statement of the position, though the matter has not been determined authoritatively.”

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determinations regarding the resolution’s validity.20 As explained above, however, this might lead Member States to refuse to comply with obligations under the resolution, irrespective of whether the Council acted under Chapter vii when adopting the resolution. May a Member State ever act upon such a unilateral determination of invalidity by not complying with decisions of the Security Council, and if so to what extent?21 First of all, this scenario is not unique in international law, in that most such questions will never become the subject of third-​party adjudication. Unilateral determinations can be a feature of many institutional settings, especially where there are no institutional review or dispute resolution procedures.22 States frequently make unilateral assessments with respect to the legal aspect(s) of a situation or instrument and often act upon such a unilateral determination.23 This reality, however, must be balanced against the stability of international legal relations. The fear of unilateral determinations of invalidity lay at the heart of concerns during the United Nations Conference on the Law of Treaties in 1968–​1969 and ultimately led to the adoption of Article 66 of the vclt. The particular concern was that Articles 53 and 64 of the vclt might lead States to invoke those provisions to make unilateral determinations of invalidity and then act upon them, thus undermining the stability of treaty relations. Similar concerns apply, possibly even a fortiori, with respect to resolutions of the Security Council. These concerns would be particularly acute where resolutions adopted under Chapter vii are concerned, since any unilateral determination that Security Council resolution were invalid would undermine the Charter’s collective security system. One of the objectives of the Security 20

21 22 23

On peremptory norms and unilateral determinations in this volume see Michael Wood “The Unilateral Invocation of Jus Cogens Norms” (Chapter 14). See further Antonios Tzanakopoulos Disobeying the Security Council: Countermeasures against Wrongful Sanctions (Oxford, 2011), at 173–​174. See generally Tzanakopoulos (above note 20), at 157–​190. See Dissenting Opinion of Judge Winiarski in Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, icj Reports 1962, p. 151, at 232. See also Dissenting Opinion of Judge Bustamante, at 304. The rules relating to countermeasures in the law of State responsibility offer another illustration, but the availability of countermeasures is in any event subject to certain restraints. See para. 2 of the commentary to Article 52 of the Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10): “Countermeasures are a form of self-​help, which responds to the position of the injured State in an international system in which the impartial settlement of disputes through due process of law is not yet guaranteed.”

450 Costelloe Council’s powers under Chapter vii to authorize the collective use of force in response to a threat to the peace, a breach of the peace or an act of aggression was to prevent the recourse to unilateral forcible measures by States. The centralization of the decision whether and how to take such measures is a critical component of the Charter’s collective security apparatus; any absence of such centralization may lend itself to abuse. 3

The Possibility of Reviewing a Security Council Resolution Allegedly Conflicting with a Peremptory Norm

The question concerning a Security Council resolution’s validity, as explained above, is closely related to the question whether it is possible to review a Security Council resolution.24 The review of a resolution by a competent, independent organ would be necessary in order to adjudicate in an authoritative and final manner the question whether such a resolution is in conflict with a peremptory norm and what the consequences of any such conflict would be. Such a review mechanism may even be desirable: it could, among other things, remove some uncertainty associated with possible unilateral determinations by Member States. Yet as noted above, there is no such review mechanism under the Charter. This might be a shortcoming from the perspective of legal certainty. That said, the Security Council’s competence in the field of international peace and security is essentially political, and the distribution of competences under the Charter was set up in a way that did not render the Security Council’s acts susceptible to challenge by another UN organ or by Member States. Reviewing a Security Council resolution and determining the possible consequences of such a review could require the Court to substitute its judgment for the essentially political role of the Council under Article 39 of the Charter, something that the Court may even be unwilling to do. In addition, there are prudential reasons why Security Council resolutions, in particular those adopted under Chapter vii of the Charter, should not be susceptible to review, given the Security Council’s functions in matters of international peace and security. For these reasons, the icj, General Assembly and other UN organs are likely to show deference to the Security Council. If a system of review did exist, the icj would be the obvious organ to carry out such a review. Yet no system of judicial review of Security Council action, not even one based on implied or inherent powers of review, has in practice 24

See generally Tzanakopoulos (above note 20), at 94–​110.

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developed in the Court’s contentious or advisory jurisdiction.25 In its Namibia advisory opinion, the icj stated specifically that it did not have the power to review Security Council action.26 The resolution in that case, Security Council Resolution 276 (1970), was not even adopted under Chapter vii of the Charter. Had it been adopted under Chapter vii, arguments against judicial review of the resolution would have been even stronger. No system of review has developed in the practice of other international courts or tribunals, either. It is not inconceivable that the icj might, if confronted with the question, in the future find that it has implied or inherent powers to review Security Council action. That said, such a development would likely face criticism. In the Certain Expenses advisory opinion, the icj stated that within the UN “each organ must, in the first place at least, determine its own jurisdiction”.27 This is an accepted institutional principle. Nevertheless, it does not follow that the Court would consider its contentious or advisory jurisdiction to include a power to review Security Council acts. Even if the Court exercised a modest power of review in the event of an alleged conflict of a Security Council resolution with a peremptory norm, the powers associated with such review would likely be very limited. Specifically, the Court could not point to a Charter-​based power to pronounce the act invalid, much less could it point to a Charter-​based power to specify the consequences of this invalidity for Member States.28 In his dissenting opinions in Lockerbie (Preliminary Objections), Judge Schwebel noted in this connection that [i]‌t does not follow from the facts that the decisions of the Security Council must be in accordance with the Charter and that the International Court of Justice is the principal judicial organ of the United Nations, that the Court is empowered to ensure that the Council’s decisions do accord with the Charter.29 25 26 27 28

29

Namibia (above note 13), at para. 89. Ibid. Certain Expenses (above note 22), at 168. Cf. the jurisdiction of the Court of Justice of the European Union under Article 267(b) of the Treaty on the Functioning of the European Union to give preliminary rulings concerning “the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.” But see further Article 189 of the 1982 United Nations Convention on the Law of the Sea, according to which “the Seabed Disputes Chamber shall not pronounce itself on the question of whether any rules, regulations and procedures of the Authority are in conformity with this Convention, nor declare invalid any such rules, regulations and procedures.” Dissenting Opinion of Judge Schwebel in Questions of Interpretation and Application of the 1971 Montreal Convention (Libyan Arab Jamahiriya v. United Kingdom), Preliminary

452 Costelloe Judge Schwebel referred to elements of the Charter’s drafting history, including a proposed amendment by the Belgian delegation at the 1945 United Nations Conference on International Organization that would have granted Member States the right to refer the question whether “a recommendation or a decision made by the [Security] Council or proposed in it infringes its essential rights” to the Permanent Court of International Justice. However, other States objected to this proposal, and Belgium eventually withdrew it. The Conference also rejected a proposal by Belgium that would have referred disagreements between UN organs on the interpretation of the Charter to the Court.30 If the Court declared an act of the Security Council to be invalid, it would be exercising powers beyond the letter of the Charter in a way that might undermine the Charter’s objective. In a very carefully worded but guarded passage in the Court’s Order of 14 April 1992 on the Request for the Indication of Provisional Measures in Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), the Court –​no doubt aware of the institutional and political implications of an excess of jurisdiction –​came as close as it ever has to assuming a quasi-​ constitutional function of review. In that order, the Court noted that the parties’ obligation to accept and carry out the decisions of the Security Council in accordance with Article 25 of the Charter extended “prima facie” to Resolution 748 (1992). The words “prima facie” indicate a deliberate qualification to the otherwise absolute character of Article 25 obligations.31 Again, however, there is no express Charter-​based mechanism for reviewing a Security Council resolution, including where it allegedly conflicts with the purposes and principles

30

31

Objections, Judgment, icj Reports 1998, p. 9, at 76 (see further at 111 (Dissenting Opinion of Judge ad hoc Sir Robert Jennings)); Dissenting Opinion of Judge Schwebel in Questions of Interpretation and Application of the 1971 Montreal Convention (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, icj Reports 1998, p. 115, at 167. But see Dissenting Opinion of Skubiszewski in East Timor (Portugal v. Australia), Judgment, icj Reports 1995, p. 90, at para. 86. Questions of Interpretation and Application of the 1971 Montreal Convention (Libyan Arab Jamahiriya v. United Kingdom) (above note 29), Dissenting Opinion of Judge Schwebel, at 77–​79; Questions of Interpretation and Application of the 1971 Montreal Convention (Libyan Arab Jamahiriya v. United Kingdom) (above note 29), Dissenting Opinion of Judge Schwebel, at 169–​170. Questions of Interpretation and Application of the 1971 Montreal Convention (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures (above note 12), para. 39; Questions of Interpretation and Application of the 1971 Montreal Convention (Libyan Arab Jamahiriya v. United States of America), Provisional Measures (above note 12), para. 42 (for further discussion of the reviewability of Security Council resolutions, see Dissenting Opinion of Judge Weeramantry, at 166 and 168). The judge suggested that the Court had no power to review Security Council action under Chapter vii.

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of the UN or another fundamental principle of international law, such as a peremptory norm of general international law. Likewise, it is unlikely that there is an implicit power of review, though there have been suggestions to this effect.32 In practice, Security Council decisions will almost without exception be considered valid. Similarly, the UN General Assembly has not developed a practice of taking a position on the validity of Security Council resolutions. Like the icj, the General Assembly is not authorized under the Charter to review the Security Council’s resolutions.33 A declaration by the General Assembly that an act of the Security Council is invalid because it conflicts with a peremptory norm would presumably be ultra vires and not have any legal effect. In practice, therefore, despite the fact that the Security Council exists within the confines of international law and is not free of legal limitations, the limits to the Security Council’s powers are primarily political rather than legal.34 Judge ad hoc Lauterpacht in his separate opinion in Application of the Convention on the Prevention and Punishment of the Crime of Genocide stated: [T]‌hat the Court has some power [of judicial review] can hardly be doubted, though there can be no less doubt that it does not embrace any right of the Court to substitute its discretion for that of the Security Council in determining the existence of a threat to the peace, a breach of the peace or an act of aggression, or the political steps to be taken following such a determination.35 Judge ad hoc Lauterpacht’s opinion observed, though, that these limitations to the icj’s review of a Security Council resolution did not apply in the case at hand. Article 103 of the Charter did not suspend the prohibition of genocide, because that prohibition arose under a peremptory norm of general international law.36 32 See, e.g., Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006), at 480–​484. 33 However, as UN General Assembly Resolution A/​r es/​66/​253B (2012) on Syria of 3 August 2012 indicates, it may deplore the Council’s inaction with respect to an international situation. 34 See, e.g., Miguel Lemos “Jus Cogens Versus the Chapter vii Powers of the Security Council: With Particular References to Humanitarian Intervention and Terrorism” (2020) 19 Chinese Journal of International Law 1, at 35, para. 76; Second Lecture by Michael Wood (above note 16), at para. 16. 35 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures (above note 8), Separate Opinion of Judge ad hoc Lauterpacht, para. 99. 36 Id., at para. 100.

454 Costelloe A similar question concerning the reviewability of Security Council resolutions, including in light of EU law, arose in Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities before the Court of First Instance (now called the General Court) of the European Union and subsequently in the European Court of Justice (now called the Court of Justice of the European Union). The General Court concluded in this regard that “the resolutions of the Security Council at issue fall, in principle, outside the ambit of the Court’s judicial review and that the Court has no authority to call in question, even indirectly, their lawfulness in the light of Community law.”37 It subsequently asserted that [n]‌one the less, the Court is empowered to check, indirectly, the lawfulness of the resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible.38 The General Court took the position that where a Security Council resolution was in conflict with a peremptory norm, that resolution “would bind neither the Member States of the United Nations nor, in consequence, the Community”.39 The General Court held that it had the power to review a Security Council resolution in order to determine whether it conflicted with a peremptory norm, noting that the Charter “presupposes the existence of mandatory principles of international law, in particular, the protection of the fundamental rights of the human person”.40 It referred in support to Article 24(2) of the Charter, according to which the Security Council shall act in accordance with the purposes and principles of the UN. The Court also referred specifically to the Charter’s Preamble and to Chapter I, observing that these “principles” associated with peremptory norms and their legal consequences were binding both on UN Member States and on the UN’s organs.41 The Court recalled that the Security Council had to exercise its powers of sanction in accordance with international law, particularly in light of its obligations under Article 24(2) of the Charter.42 37 38 39 40 41 42

Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities, Judgment of the Court of First Instance of the European Communities, 21 September 2005, at para. 225. Id., at para. 226. Id., at para. 230. Id., at para. 228. Id., at paras. 228–​229. Id., at para. 229. See further id., at para. 230: “International law thus permits the inference that there exists one limit to the principle that resolutions of the Security Council have

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The Court of Justice of the European Union on appeal held that it was not necessary to consider the reviewability of a Security Council resolution against peremptory norms.43 Importantly, however, it held that the General Court had erred in its reasoning, because, contrary to the General Court’s findings, EU acts implementing a Security Council resolution themselves were not immune from judicial scrutiny against EU law itself. The Court of Justice therefore no longer found it necessary to consider the heads of claim relating to peremptory norms.44 Although the Court of Justice did not specifically disapprove of the possibility of reviewing a Security Council resolution against a peremptory norm, it did not take a position on that question, given that it found itself able to answer the question on the basis of EU law alone.45 Ultimately, reviewing a Security Council resolution on the basis of an alleged conflict with a peremptory norm of general international law likely exceeds the jurisdiction not only of the icj but also of other international courts and tribunals. Yet, there remains a theoretical possibility that an international court or tribunal or another body may find that it has an inherent jurisdiction to review a Security Council resolution in order to determine whether the resolution conflicts with a peremptory norm. This might also involve a determination

43

44 45

binding effect: namely, that they must observe the fundamental peremptory provisions of jus cogens. If they fail to do so, however improbable that may be, they would bind neither the Member States of the United Nations nor, in consequence, the Community.” Yassin Abdullah Kadi, Al Barakaat International Foundation v. Council of the European Union, Commission of the European Communities (Appeal Judgment), Judgment of the Grand Chamber of the European Court of Justice, 3 September 2008, at para. 329. France, the Netherlands and the United Kingdom opposed the General Court’s findings with respect to the effects of peremptory norms for the review of Security Council resolutions. See id., at paras. 262–​266. For discussion of the Kadi-​litigation, see Gráinne de Búrca “The European Court of Justice and the International Legal Order after Kadi” (2010) 51 Harvard International Law Journal 1. Kadi, Al Barakaat v. Council of the European Union (above note 43), at para. 327. Ultimately, even the General Court had decided that the freezing of the applicants’ funds did not constitute an arbitrary, inappropriate or disproportionate interference with the right to private property and could much less have been considered a breach of an obligation under a peremptory norm. Kadi v. Council of the European Union and Commission of the European Communities (above note 37), at paras. 238 and 242. See also BVerfG, Order of the Second Senate of 26 October 2004 -​2 BvR 955/​00, at paras. 117–​119. In Kadi ii, the General Court confirmed the position of the Court of Justice with respect to the reviewability of measures freezing individuals’ assets pursuant to a Security Council resolution adopted under Chapter vii of the Charter and also specified the legal safeguards that an individual was entitled to. Yassin Abdullah Kadi v. European Commission, Judgment of the European Court of Justice, 30 September 2010, at paras. 125–​126, 151, 171–​188.

456 Costelloe that Member States are in such a case not under any obligation to accept and carry out a Security Council decision.46 Nevertheless, it would still lie outside such an organ’s power to make a determination of invalidity and to indicate the consequences of this invalidity for UN Member States, particularly where the reviewing organ is not a UN organ. Moreover, even if the icj were the organ exercising a power of review in contentious proceedings, its decision in such a matter would in any event, according to the principle of the relative effect of judgments reflected in Article 59 of the Court’s Statute, not be binding upon the Security Council. Similarly, there is little basis for the review of Security Council resolutions in the Court’s advisory jurisdiction, especially where an organ other than the Security Council requests an advisory opinion. In any case, the non-​contentious character of the proceedings and the limitations to the Court’s powers under the Charter and its Statute in advisory proceedings make it unlikely that it would review a Security Council resolution against a peremptory norm of general international law.47 4

Relevance of Peremptory Norms for the Interpretation of Security Council Resolutions

Questions concerning the interpretation of Security Council resolutions have arisen and continue to arise in international practice, including in proceedings before courts and tribunals.48 Particularly difficult and pertinent questions can arise when the resolution is alleged to conflict with a peremptory norm of general international law. Interpretation has served as a way to avoid the difficulties associated with the possible invalidity of Security Council resolutions and the question whether any organ is competent to review such resolutions, particularly in extreme cases. The tensions surrounding Security Council Resolution 1441 (2002) in the lead-​up to the Iraq War starting in 46

See Individual Opinion of Committee Member Nigel Rodley in Sayadi and Vinck v. Belgium, Decision of the Human Rights Committee, 29 December 2008 (ccpr/​C/​94/​D/​ 1472/​2006), at 36. 47 Article 65(1) of the 1946 Statute of the International Court of Justice simply provides: “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.” 48 See, e.g., Al-​Jedda v. United Kingdom (above note 14), at para. 76. On the interpretation of Security Council resolutions in general, see Michael Wood “The Interpretation of Security Council Resolutions, Revisited” (2016) 20 Max Planck Yearbook of United Nations Law 3.

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2003,49 and the interpretation of Resolution 1973 (2011) with respect to military intervention in Libya in 2011, are illustrations of some of the difficulties in interpreting Security Council resolutions in practice. Resolution 2249 (2015), concerning responses to the activities of Da’esh in Syria, also generated much discussion related to interpretation.50 It is not easy to articulate a single set of interpretive rules governing international legal instruments adopted under treaties but that are not themselves treaties.51 In its advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea set out principles for the interpretation of regulations adopted by the Council of the International Seabed Authority.52 The Chamber stated: The fact that these instruments are binding texts negotiated by States and adopted through a procedure similar to that used in multilateral conferences permits the Chamber to consider that the interpretation rules set out in the Vienna Convention may, by analogy, provide guidance as to their interpretation.53 The Seabed Disputes Chamber also noted that “[i]‌n the specific case before the Chamber, the analogy is strengthened because of the close connection between these texts and the Convention”.54 While the position that the vclt provides a starting point is defensible, one must have regard to certain considerations when interpreting Security Council resolutions.55

49 See Report of the Dutch Committee of Inquiry on the War in Iraq “Chapter 8: The Basis in International Law for the Military Intervention in Iraq” (2010) 57(1) Netherlands International Law Review 81. See also United Kingdom Report of the Iraq Inquiry (“Chilcot Inquiry”) on the subject, available at https://​www.gov.uk/​government/​publications/​the-​ report-​of-​the-​iraq-​inquiry (accessed on 22 April 2021). 50 See Michael Wood (above note 48), at 16–​18. 51 On interpretation and peremptory norms in this volume see Sâ Benjamin Traoré “Peremptory Norms and Interpretation in International Law” (Chapter 6). 52 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, International Tribunal for the Law of the Sea, 1 February 2011, at para. 60. 53 Id., at para. 60. 54 Ibid. 55 Note that the rather more inclusive procedure leading to the adoption of International Seabed Authority regulations is starkly different from the procedures leading to the adoption of a Security Council resolution.

458 Costelloe A number of factors make the interpretation of a Security Council resolution difficult. Resolutions can range from those addressing internal institutional matters to those producing external legal effects by virtue of Article 25 of the Charter. Those producing external legal effects for Member States are fewer in number, but they are typically the most important from a political perspective.56 Other resolutions are even less frequent, including those establishing the statute of an international criminal tribunal. These resolutions may require an even more particular approach to interpretation to determine the jurisdiction of the criminal tribunal established by the resolution.57 Another reason why the interpretation of Security Council resolutions involves considerations different from other international instruments is that the drafting of these resolutions can be politicized. The drafting of a resolution can, due to the nature of the circumstances, take place in a short period of time and receive only limited review from legal advisers. The drafting process is in this regard different from the drafting of legislation or of treaties.58 A resolution’s exact wording is sometimes deliberately left ambiguous in order to achieve a consensus between the members of the Security Council. Consequently, the ordinary meaning of the text might arguably be less significant than in legislation or a treaty.59 Another question is which of the six official languages of the UN, all in principle equally authoritative, is controlling. In practice, English is often the controlling language.60 In its Kosovo advisory opinion, the icj set out its views on the interpretation of Security Council resolutions. It articulated these principles in the context of Security Council Resolution 1244 (1999). Most importantly, the Court cautioned that Articles 31 and 32 of the vclt, while offering guidance, were not a complete set of interpretive rules. Against this background, the Court stated that

56 57

58 59 60

Michael Wood, “The Interpretation of Security Council Resolutions”, (1998) 2 Max Planck Yearbook of United Nations Law 73, at 79. On the interpretation of such a statute, see especially Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Judgment of the Appeal Chamber of the Special Tribunal for Lebanon, 16 February 2011, at para. 26; Prosecutor v Dusko Tadić (Appeal Judgment), Judgment of the Appeals Chamber of the International Tribunal for the former Yugoslavia, 15 July 1999, at paras. 71–​142; Wood (above note 56), at 91. Michael Wood “The Legal Framework of the Security Council”, Lecture delivered during the Hersch Lauterpacht Memorial Lectures on 7 November 2006, held at the Lauterpacht Centre for International Law at the University of Cambridge, at para. 34. Ibid. Id., at 87–​88. See further Sievers and Daws (above note 2), at 97–​100.

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While the rules on treaty interpretation embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties may provide guidance, differences between Security Council resolutions and treaties mean that the interpretation of Security Council resolutions also require [sic] that other factors be taken into account.61 Among the reasons for the Court’s distinction between the interpretation of a Security Council resolution and the interpretation of a treaty were procedural differences between the adoption of the respective instruments: Security Council resolutions are issued by a single, collective body and are drafted through a very different process than that used for the conclusion of a treaty. Security Council resolutions are the product of a voting process as provided for in Article 27 of the Charter, and the final text of such resolutions represents the view of the Security Council as a body. Moreover, Security Council resolutions can be binding on all Member States … irrespective of whether they played any part in their formulation. The interpretation of Security Council resolutions may require the Court to analyse statements by representatives of members of the Security Council made at the time of their adoption, other resolutions of the Security Council on the same issue, as well as the subsequent practice of relevant United Nations organs and of States affected by those given resolutions.62 Thus, in Kosovo, the icj articulated an interpretive process for Security Council resolutions based on the interpretation of the resolution’s text in good faith and on the basis of its ordinary meaning,63 in its context and in light of the resolution’s object and purpose,64 and with regard to applicable rules of 61

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, icj Reports 2010, p. 403, at para. 94. 62 Ibid. See further id., at para. 117, on the interpretation of a Security Council resolution for the purpose of determining the subjects for which a resolution creates legal obligations. For commentary on the icj’s dicta in Kosovo on the interpretation of Security Council resolutions, see Sean Murphy “Reflections on the icj Advisory Opinion on Kosovo: Interpreting Security Council Resolution 1244 (1999)” in Marko Milanovič and Michael Wood (eds.) The Law and Politics of the Kosovo Advisory Opinion (Oxford, 2015), at 157–​159. 63 See Kosovo (above note 61), at paras. 113–​115. 64 See id., at paras. 95-​100. The icj in these passages assumed that Security Council Resolution 1244 (S/​r es/​1244(1999)) (1999) had an object and a purpose –​a notion from the law of treaties –​and that they were relevant to the Court’s interpretation of the resolution.

460 Costelloe general international law.65 The Appeals Chamber of the Special Tribunal for Lebanon in Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging took a less nuanced position than the icj in Kosovo. The Appeals Chamber of the Special Tribunal simply noted that “[t]‌hose rules of interpretation [that evolved in international custom and were codified or developed in the 1969 Vienna Convention on the Law of Treaties] must … be held to be applicable to any internationally binding instrument, whatever its normative source.”66 However, Article 31 vclt cannot serve as an unmodified interpretive rule for Security Council resolutions. This is because, among other things, a Security Council resolution has no parties. It is an instrument that reflects an act of the Security Council as a single body, not an agreement between the members of that body. Also, it is misleading to speak of Security Council resolutions as a single, general category, because there is a variety of processes by which these instruments are drafted, and resolutions can reflect acts of the Council in various fields of application.67 At most, a Security Council resolution may have to be interpreted by taking into account obligations under conventional or customary international law in force for the UN as an institution. In accordance with this approach, the icj suggested in its Namibia advisory opinion that the interpretation of the relevant Security Council resolution had to have regard to various external factors.68 The significance of treaty rules in force for Security Council resolutions may, moreover, be diminished by operation of Article 103 of the Charter. Similarly, the significance of ordinary rules of customary international law for interpretation may be diminished if the resolution constitutes a lex specialis. Peremptory norms, by contrast, may have particular interpretive significance. In Al-​Jedda, the ECtHR noted: [I]‌n interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on Member States to breach fundamental principles of human rights. In the event of 65 See id., at paras. 79-​81. See generally Murphy (above note 62), at 157–​158. 66 Interlocutory Decision on the Applicable Law (above note 57), at para. 26. However, the Special Tribunal also took into account the icj’s more cautious approach in Kosovo (para. 27). 67 Michael Wood (above note 48), at 11–​14. 68 Namibia (above note 13), at para. 114. Among those external factors, the Court mentioned –​ for instance –​the discussions leading to the resolution, the Charter provisions invoked, and other circumstances that might assist in determining the legal consequences.

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any ambiguity in the terms of a United Nations Security Council resolution, the Court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations.69 The ECtHR further held that “it is to be expected that clear and explicit language would be used were the Security Council to intend States to take particular measures which would conflict with their obligations under international human rights law.”70 That situation arose in Nada v. Switzerland, a case regarding the compatibility of Switzerland’s travel-​and-​entry ban implementing Security Council Resolution 1390 (2002) with the right under Article 8 of the echr to respect for private and family life and the right under Article 13 to an effective remedy. In its analysis of the alleged breach of Article 8 the ECtHR stated: When creating new international obligations, States are assumed not to derogate from their previous obligations. Where a number of apparently contradictory instruments are simultaneously applicable, international case-​law and academic opinion endeavour to construe them in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law … The Grand Chamber confirms those principles [the relevant principles in Al-​Jedda]. However, in the present case it observes that, contrary to the situation in Al-​Jedda, where the wording of the resolution in issue did not specifically mention internment without trial, Resolution 1390 (2002) expressly required States to prevent the individuals on the United Nations list from entering or transiting through their territory. As a result, the above-​mentioned presumption is rebutted in the present case, having regard to the clear and explicit language, imposing an obligation to take measures capable of breaching human rights, that was used in that Resolution.71

69 70 71

Al-​Jedda v. United Kingdom (above note 14). Ibid. The principles in these passages were confirmed in Nada v. Switzerland, Judgment of the Grand Chamber of the European Court of Human Rights, 12 September 2012. Nada v. Switzerland (above note 70), at paras. 170, 172.

462 Costelloe In Nada, the ECtHR held that Article 8 was prima facie engaged,72 and that Switzerland enjoyed a degree of latitude in implementing the Security Council resolution.73 It concluded that Switzerland should have persuaded the Court that it had taken, or had attempted to take, “all possible measures to adapt the [Security Council] sanctions regime to the applicant’s individual situation”,74 and that Switzerland was therefore in breach of Article 8.75 In making this finding, the ECtHR did not consider arguments relating to the hierarchy of obligations between the echr and the Charter.76 The Court also held, albeit applying a slightly different analysis, that Switzerland had breached Article 13 of the echr.77 There are examples from other institutional settings as well. In Sayadi and Vinck v. Belgium, one member of the UN Human Rights Committee, Sir Nigel Rodley, in his concurring opinion on the merits suggested criteria for determining whether there was a conflict between a Security Council resolution and Member States’ obligations under the International Covenant on Civil and Political Rights. Sir Nigel suggested, among other criteria, that “there should be a presumption that the Security Council did not intend that actions taken pursuant to its resolutions should violate human rights”. He further noted “a presumption that, in any event, there was no intention that a peremptory norm of international (human rights) law (jus cogens) should be violated”.78 These presumptions reflect the basic manner in which peremptory norms produce effects for a Security Council resolution in the event of an apparent conflict. Interpretation can serve as a tool for avoiding conflicts between Security Council resolutions and other international legal norms. These suggested presumptions, while in accordance with the principle that a Security Council resolution should, to the extent possible, be interpreted and applied in a way that is consistent with peremptory norms, at the same time cannot license a de facto amendment of such resolutions under the banner of interpretation.79 The interpretation of a Security Council resolution in accordance with these presumptions can also serve the purpose of avoiding a conflict with a peremptory norm where the resolution is not in conflict with a peremptory norm on its face, but where it may come into conflict with a peremptory norm in application. The 72 73 74 75 76 77 78 79

Id., at para. 167. Id., at para. 180. Id., at para. 196. Id., at para. 197. Ibid. Id., at paras. 209–​214. Sayadi and Vinck (above note 46), Individual Opinion of Committee Member Nigel Rodley, at 36–​37. Tzanakopoulos (above note 20), at 58.

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provisional measures phase in Application of the Convention on the Prevention and Punishment of the Crime of Genocide offers an illustration. Indeed, the above would be the more typical scenario: a resolution would, if at all, likely only come into conflict or apparent conflict with a peremptory norm in the course of being applied, because it is politically inconceivable that a resolution would be in conflict with a peremptory norm on its face. The Security Council resolution at issue in Bosnia and Herzegovina’s request for the indication of provisional measures was Resolution 713 (1991). In that resolution the Security Council, acting under Chapter vii, imposed an arms embargo on what the resolution referred to as “Yugoslavia”.80 In 1991, the year in which the Security Council adopted the resolution, “Yugoslavia” referred to the entire territory of the Socialist Federal Republic of Yugoslavia. Soon thereafter, however, the authority of the entity previously known as “Yugoslavia” over its one-​time territory began to recede significantly, to such an extent that by 1992 the Conference on Yugoslavia Arbitration Commission declared that the former Socialist Federal Republic of Yugoslavia had ceased to exist as a State. The European Community Member States recognized Bosnia and Herzegovina as an independent State in April 1992, and it became a UN Member State in May of that year. On its face, Resolution 713 (1991) appeared to be perfectly valid.81 The problem arose when it came to the way the resolution was interpreted and applied, in particular as concerned the meaning and extent of the reference to “Yugoslavia”. Bosnia and Herzegovina in its request for the indication of provisional measures requested the Court to declare that Security Council resolution 713 (1991), imposing a weapons embargo upon the former Yugoslavia, must be construed in a manner that shall not impair the inherent right of individual or collective self-​defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law.82 Bosnia and Herzegovina also submitted that all subsequent resolutions referring to or reaffirming Security Council Resolution 713 (1991) should be interpreted 80

UN Security Council Resolution 713 (S/​r es/​713) (1991), at para. 6. See also Further Report of the Secretary-​General Pursuant to Security Council Resolution 721 (1991) (S/​23363) (1992), at para. 33. 81 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures (above note 8), Separate Opinion of Judge ad hoc Lauterpacht, at para. 98. 82 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Provisional Measures, icj Reports 1993, p. 3, para. 2.

464 Costelloe in the same way.83 The question ultimately was whether Security Council Resolution 713 (1991), which the Security Council had by the time the proceedings had been instituted reaffirmed without modification in Resolution 727 (1992),84 could be interpreted in a way that excluded Bosnia and Herzegovina from the arms embargo imposed on “Yugoslavia”. The difficulty with such an interpretation lay in the fact that the Security Council had in fact had the opportunity on later occasions specifically to exclude Bosnia and Herzegovina from the arms embargo imposed on “Yugoslavia” but had failed to do so. In fact, a vote to that effect had been defeated in the Security Council.85 The question here was therefore not whether the Security Council resolution was in conflict with the peremptory norm prohibiting genocide on its face. Rather, the question was what the possible effects of the prohibition of genocide and the right to self-​defence under international law were for a Security Council resolution. In that case, it was the interpretation and application of the resolution that might prejudice the rights of a State in a way arguably inconsistent with a peremptory norm. 5

The ilc’s Draft Conclusions Adopted on First Reading

Two of the ilc’s 23 Draft Conclusions adopted on first reading in August 2019 are principally relevant for the relationship between Security Council resolutions and peremptory norms, namely Draft Conclusions 16 and 20. Draft Conclusion 16 (“Obligations created by resolutions, decisions or other acts of international organizations conflicting with a peremptory norm of general international law (jus cogens)”) reads: A resolution, decision or other act of an international organization that would otherwise have binding effect does not create obligations under international law if and to the extent that they conflict with a peremptory norm of general international law (jus cogens). Draft Conclusion 16 does not refer specifically to Security Council resolutions, but the commentary does. It comes as no surprise that several States 83 84 85

Ibid. UN Security Council Resolution 727 (S/​r es/​727) (1992), at para. 6 and preamble. Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures (above note 8), Separate Opinion of Judge ad hoc Lauterpacht, at 438, para. 94.

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in their written statements submitted to the Sixth Committee (Legal) of the General Assembly on the Draft Conclusions opposed referring specifically to the Security Council in the commentary.86 Notwithstanding this concern, however, certain States, notably Brazil and South Africa, would have supported a specific reference to the Security Council in the text of Draft Conclusion 16 itself.87 Paragraph 4 of the commentary also singles out Security Council acts by reference to Article 103 of the Charter. This position, however, is not without difficulties; indeed, Article 103 arguably provides a reason why peremptory norms might not straightforwardly apply to Security Council acts, as the Al-​Jedda litigation demonstrated. Further, the commentary could pay further regard to the purposes and principles of the UN under Article 1, Member States’ obligations under Article 2, and the duties and obligations of the Security Council under Article 24, all of which provide reasons why obligations under Security Council resolutions should sooner prevail over other international legal obligations, precisely by virtue of Article 103, rather than the other way around. References to the Security Council should always be made against the background risk that States might otherwise make their own determination of whether a resolution is in conflict with a peremptory norm, thereby unsettling the collective security apparatus. Draft Conclusion 20 (“Interpretation and application consistent with peremptory norms of general international law (jus cogens)”) provides: Where it appears that there may be a conflict between a peremptory norm of general international law (jus cogens) and another rule of international law, the latter is, as far as possible, to be interpreted and applied so as to be consistent with the former. While this provision is of course of general application, it is highly relevant to Security Council resolutions, given the key function of interpretation described in this chapter. In light of Draft Conclusion 20’s general character, and given that it describes the most widespread –​indeed often the only –​legal effect that peremptory norms have, there might have been something to be said for placing it at the beginning of Part Three (Legal consequences of peremptory norms of general international law (jus cogens)). That said, the Commission was ultimately well-​advised to position the Draft Conclusion where it did, given that it 86 87

See especially Statement by China (ga/​L/​3605), at 4; Statement by the United States of America (ga/​L/​3606), at 3; Statement by the United Kingdom (ga/​L/​3605), at 9–​10. Statement by South Africa (ga/​L/​3608), at 9; Statement by Brazil, UN General Assembly, Sixth Committee Report of the International Law Commission, at 4.

466 Costelloe does not address situations where there is a conflict with a peremptory norm but situations “[w]‌here it appears that there may be a conflict”. In other words, while Draft Conclusions 10 to 16 address actual conflicts, and Draft Conclusions 17 to 19 address the consequences of peremptory norms in the law of international responsibility, Draft Conclusion 20 addresses apparent or prima facie but ultimately avoidable conflicts. Given this nuance, it would, however, be helpful if the commentaries included some discussion of what a “conflict” is for the purposes of Draft Conclusion 20 in particular but also the other draft conclusions. The word “conflict” is central to the entire discussion about peremptory norms but is rarely explored. This would benefit not only Draft Conclusion 16 but indeed all draft conclusions referring to a “conflict”, because the vclt does not specify what amounts to a “conflict”.88 6

Conclusions

The relationship between peremptory norms of general international law and Security Council resolutions is difficult. The legal effects that peremptory norms produce in the law of treaties, in particular under the vclt, cannot easily apply mutatis mutandis to Security Council resolutions, having regard to the particular legal characteristics of Security Council acts and to the role of the Security Council in maintaining international peace and security. One must also remember that an actual conflict between a peremptory norm and a Security Council resolution is little more than a hypothetical possibility, and politics provide a strong check on such an eventuality. In any event, the mere fact that obligations created by Security Council decisions prevail over other international legal obligations by virtue of Article 103 of the Charter does not inherently 88 The ilc’s Study Group on Fragmentation of International Law in its 2006 report on the topic included a passage bearing the heading “What Is a ‘Conflict’?”. In that passage, the Study Group stated: “A strict notion would presume that conflict exists if it is possible for a party to two treaties to comply with one rule only by thereby failing to comply with another rule. This is the basic situation of incompatibility. An obligation may be fulfilled only by thereby failing to fulfil another obligation. However, there are other, looser understandings of conflict as well. A treaty may sometimes frustrate the goals of another treaty without there being any strict incompatibility between their provisions.” Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalized by Martti Koskenniemi, (A/​c n.4/​L.682) (2006), at para. 24. The commentary to Draft Conclusion 20 might benefit from similar reflections on the concept of a conflict.

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render resolutions more susceptible to a potential conflict with peremptory norms. If anything, Article 103 may sooner protect the principles underlying peremptory norms, in light of the limits to Security Council power under the Charter. As in the law of treaties, the role of peremptory norms is chiefly interpretive. In this capacity, however, they have an important role to play.

pa rt 3 Particular Rules and Sets of Rules

∵

Chapter 18

“Magic” or Smoke and Mirrors? The Gendered Illusion of Jus Cogens Mary H. Hansel 1

Introduction

This chapter is written at a time of convergence. As the covid-​19 pandemic brings the issue of derogation to the fore, the U.N. International Law Commission (“ilc”) has recently adopted a set of Draft Conclusions containing an authoritative list of jus cogens norms.1 Meanwhile, the gendered impacts of the pandemic underscore the need for greater international legal protections for women, girls and gender minorities.2 This chapter explores how the positivist approach to jus cogens, epitomized by the ilc’s work, creates an illusion of methodological soundness that serves to marginalize gender. For decades, international lawyers focused on jus cogens have fallen into two ideological camps: positivism and normativism. Positivism is “the idea that the rules constituting international law flow from particular sources of law such as treaties or customary international law, and that these sources provide the content of international law regardless of their moral or ethical content.”3 1 See Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​first Session, General Assembly Official Records (A/​74/​10) [hereinafter, “Draft Conclusions”]. 2 A 2020 U.N. Human Rights Council Resolution expressed “[d]‌eep[] concern[] that the covid-​ 19 crisis has exacerbated pre-​existing forms of inequality and systemic discrimination faced by women and girls, including patriarchy, racism, stigma, xenophobia and socioeconomic inequalities, and has increased the occurrence of sexual and gender-​based violence and harassment, women’s and girls’ disproportionate share of unpaid care and domestic work, as well as loss of employment and livelihoods, particularly among women who work in the informal sector, . . .” U.N. Human Rights Council, “Resolution adopted by the Human Rights Council on 17 July 2020” (A/​h rc/​r es/​44/​17) (2020). See also Edith M. Lederer, “25 years after U.N. women’s meeting, equality remains distant” AP News, 1 October 2020 available at https://​apnews.com /​article/​virus-​outbreak-​beijing-​archive-​united-​nations-​antonio-​guterres-​ 5ee28ad63f2253d4c9446862a92848d6 (accessed 1 December 2020) (quoting U.N. Secretary-​ General Guterres saying, “Unless we act now, covid-​19 could wipe out a generation of fragile progress towards gender equality.”). 3 Jens David Ohlin, “In Praise of Jus Cogens’ Conceptual Incoherence” (2018) 63 McGill Law Journal 701, at 704.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_019

472 Hansel Positivism “endeavours to abstain from any value judgements” and asserts “that it is possible to have a morally neutral descriptive theory of law.”4 Pursuant to a positivist approach, one need only refer to existing sources to determine the jus cogens status of international legal norms5—​and one can do so without value judgments because of positivism’s objectivity and methodological rigor. The ilc’s approach to jus cogens is a positivist one.6 Normativism, by contrast, is rooted in value judgment and lays no claim to neutrality. This chapter conceives of normativism as encompassing a broad range of coherent theoretical touchstones, including natural law and fiduciary theory. Under a normativist approach, one refers to a theoretical touchstone in deciding which norms are deserving of jus cogens status. A substantial amount, if not the lion’s share, of jus cogens scholarship has focused on this positivism-​normativism binary, assuming that one approach begins where the other ends.7 This chapter seeks to dismantle this (false) dichotomy. It demonstrates that the positivist approach to jus cogens is not what it claims to be—​indeed, it cannot achieve any semblance of objectivity due to its unsalvageable methodological deficiencies. The chapter reveals the positivist approach as a subjective, discretionary selection process. This process is largely opaque and may or may not be driven by instinct or moral considerations; a sense of jus cogens agnosticism is thus appropriate. Yet under the cloak of positivism, the selection process masquerades as an objective, rigorous assessment. Such is the illusion of jus cogens. This illusion, in turn, facilitates the exclusion of norms that reflect the interests of women, girls and gender minorities.8 The novelty of this chapter is three-​fold. First, although not the first to lament the methodological failings of jus cogens positivism, it seems to be the first to identify and detail these failings. Second, this chapter exposes the

4 Frauke Lachenmann, “Legal Positivism” Max Planck Encyclopedias of International Law (last updated July 2011), at para. 6. 5 See Ohlin (above note 3), at 704–​5. 6 See Siegfried Wiessner and Christian Lee Gonzalez Rivera, “The International Law Commission at Its 70th Anniversary: Its Role in International Law and Its Impact on U.S. Jurisprudence” (2019) 13 Florida International University Law Review 1151, at 1159 (characterizing the ilc as “[a]‌conclave of traditional legal scholars, chosen by states, and mostly wedded to the jurisprudence of positivism”). 7 See A. Mark Weisburd, “The Emptiness of the Concept of Jus Cogens as Illustrated by the War in Bosnia-​Herzegovina” (1995) 17 Michigan Journal of International Law 1, at 28 (“When scholars cannot agree as to whether jus cogens norms are to be derived from positive law or are, instead, emanations of natural law, there is reason to question whether there is even a core understanding of the concept.”). 8 The terms “women” and “girls” include any persons who identify as such.

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discretionary basis of jus cogens decision-​making, which is obfuscated by the promise of a rigorous evidentiary calculus. Third, this chapter shows how the positivist illusion results in the exclusion of feminist priorities. Of note, despite the voluminous scholarship on jus cogens, there appears to be a stunning paucity of feminist literature addressing the doctrine.9 The oft-​ cited work on jus cogens through a feminist lens is Hilary Charlesworth and Christine Chinkin’s 1993 article “The Gender of Jus Cogens.” This article posits that “the concept of jus cogens is not a properly universal one as its development has privileged the experiences of men over those of women, and it has provided a protection to men that is not accorded to women.”10 The authors emphasize that “the privileged status of its norms is reserved for a very limited, male centered, category” and “the manner in which the norms have been constructed obscures the most pervasive harms done to women.”11 The article concludes with a call for gender inclusivity in designating jus cogens norms.12 Decades later, with this call still unanswered, this chapter builds on Charlesworth and Chinkin’s article in investigating the dynamics and gendered assumptions underpinning jus cogens. Section 2 highlights what several scholars have referred to as the “magic” of jus cogens norms: their exalted status in terms of legal effects, symbolic impact and ability to shape the international legal order. This “magic” contrasts with the smoke and mirrors of the positivist norm identification process. Section 3 describes this process by examining the identification methodology set forth and applied by the ilc. In his Fourth Report,13 the ilc Special Rapporteur on jus cogens excludes the prohibition of gender discrimination from jus cogens status on the purported basis that it does not pass evidentiary muster pursuant to positivist methodology. The conclusory

9

In 2017, Ekaterina Yahyaoui Krivenko referred to “the absence of any other attempt to analyze jus cogens from a feminist perspective” since Hilary Charlesworth and Christine Chinkin’s 1993 article “The Gender of Jus Cogens.” Ekaterina Yahyaoui Krivenko, “The ICJ and Jus Cogens through the Lens of Feminist Legal Methods” (2017) 28 European Journal of International Law 959, at 968. Such analyses are indeed scarce, although this chapter cites to a few feminist analyses of jus cogens published between 1993 and 2017. 10 Hilary Charlesworth and Christine Chinkin, “The Gender of Jus Cogens” (1993) 15 Human Rights Quarterly 63, at 65 [hereinafter, “Charlesworth & Chinkin”]. 11 Id., at 67, 70. 12 See id., at 67–​68, 75–​76. 13 See Fourth Report of the Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens) (Dire Tladi) (A/​c n.4/​727) (2019) [hereinafter, “Fourth Tladi Report”].

474 Hansel nature of this exclusion, however, raises a host of questions about the methodology, as a whole. Section 4 delves into the dynamics underpinning the entire jus cogens identification process—​uncloaking the doctrinal smoke and mirrors. This Section begins with a critique of positivism’s methodological legitimacy, explaining the myriad deficiencies that render the methodology unsound and irredeemable. The Section proceeds with a discussion of how the fatally flawed methodology engenders and obscures discretionary jus cogens determinations, while laying claim to objectivity and methodological rigor. The positivist illusion serves to marginalize gender, consistent with pervasive and structural gender biases within international law. Section 5 concludes the chapter with reflections on grounding the doctrine in a coherent normativist theory—​one that integrates feminist priorities—​in lieu of positivism. At least three caveats are appropriate here. First, although this chapter critiques the positivist methodology used for jus cogens identification, it does not dispute that the norms identified by the ilc are fundamental norms deserving of jus cogens status.14 Second, although this chapter focuses on developing a more gender-​inclusive jus cogens, the analyses herein provide support for a more inclusive jus cogens, generally. Third, notwithstanding the doctrinal aporia in the relevant literature, this chapter accepts the concept of jus cogens as legitimate and an important “ethical minimum” for the international community.15 The chapter seeks to avoid undermining the concept as a whole, mindful that “[i]‌nternational law’s perennial anxiety over jus cogens has real-​world costs.”16 Jus cogens is a powerful and, as some have said, “magical” doctrine. Its “magic,” however, is belied by the methodological deficiencies of the norm identification process, which ultimately marginalize feminist priorities. Such a doctrine calls for a coherent, gender-​inclusive foundation, rather than the smoke and mirrors of positivism. 14 See id., at 70 (“All the violations of human rights typically included in catalogues of jus cogens norms are of undoubted seriousness . . .. The silences of the list, however, indicate that women’s experiences have not directly contributed to it.”). 15 In 1937, Alfred Verdross brought attention to the concept of jus cogens by arguing for an “ethical minimum recognized by all the States of the international community.” Alfred Verdross, “Forbidden Treaties in International Law: Comment on Professor Garner’s Report on the ‘Law of Treaties’ ” (1937) 31 American Journal of International Law 571, at 576. 16 Evan J. Criddle and Evan Fox-​Decent, “A Fiduciary Theory of Jus Cogens” (2009) 34 Yale Journal of International Law 331, at 346–​47 [hereinafter, “Criddle & Fox-​Decent”] (observing that concerns about the doctrine’s uncertain basis have diminished its influence within States and in transnational dispute resolution).

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2

475

Abracadabra! The “Magical” Powers of Jus Cogens

Jus cogens status confers a dazzling panoply of effects—​some legalistic, some symbolic—​amounting to a supernatural force that helps shape the international legal order. Accordingly, the identification of such norms is of critical importance and global consequence. The legal effects flowing from a norm’s jus cogens status are robust. The Draft Conclusions define a jus cogens norm as “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.”17 By definition, States cannot derogate from a jus cogens norm, and such a norm can only be modified by a subsequent norm of identical status. Also, the Draft Conclusions provide that treaties are void if they conflict with a jus cogens norm.18 Sources other than the ilc have envisaged myriad legal effects beyond the definitional ones. Jean d’Aspremont speculates that the “creative pull” of the doctrine has inspired this proliferation.19 These additional effects include: obligations to nullify domestic law that is contrary to jus cogens;20 universal jurisdiction for crimes involving jus cogens violations;21 automatic State standing to bring claims based on jus cogens violations;22 the denial of State immunity in cases 17

Conclusion 2 of the Draft Conclusions (above note 1). This definition is mirrored by Article 53 of the Vienna Convention on the Law of Treaties. 18 Conclusion 10 of the Draft Conclusions (above note 1). 19 Jean d’Aspremont, “Jus Cogens as a Social Construct Without Pedigree” (2015) 46 Netherlands Yearbook of International Law 85, at 94. 20 See ibid., citing Antonio Cassese “For an Enhanced Role of Jus Cogens” in Antonio Cassese (ed.) Realizing Utopia: The Future of International Law (Oxford University Press, 2012), at 162. 21 See d’Aspremont (above note 19), at 94, citing M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes” (1996) 59 Law and Contemporary Problems 63; Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford University Press, 2006), at 288–​317. See also Almonacid-​Arellano v. Chile, Judgement of the Inter-​American Court of Human Rights, 26 September 2006, at para.153; German Bundersverfassungsgericht, 2nd Senate, 1290/​99, Judgement of the German Federal Constitutional Court, 12 December 2000, at para.17; Prosecutor v. Furundzija, Judgement of the International Criminal Tribunal for the Former Yugoslavia, Trial Chamber ii, 10 December 1998, at paras. 155–​156. 22 See, e.g., Charlesworth & Chinkin (above note 10), at 66. Such standing is an extension of the erga omnes character of the norms. As the Draft Conclusions make clear, “[p]‌eremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest.” Conclusion 17 of the Draft Conclusions (above note 1).

476 Hansel involving violations of jus cogens norms;23 interdiction or invalidity of amnesties in conflict with jus cogens norms;24 binding application to non-​State actors;25 and the invalidity of U.N. Security Council resolutions contrary to jus cogens.26 Aside from their legal effects, jus cogens norms represent the most fundamental values of the international community. Charlesworth and Chinkin explain that “[m]‌uch of the importance of the jus cogens doctrine lies not in its practical application but in its symbolic significance in the international legal process.”27 Scholars have described the doctrine as “guarding the most fundamental and highly-​valued interests of international society”;28 an “expression of a conviction, accepted in all parts of the world community, which touches the deeper conscience of all nations”;29 fulfilling “the higher interest of the whole international community”;30 “the foundation of international society without which the entire edifice would crumble”;31 and “so essential to the international system that their breach places the very existence of that system in question.”32 Moreover, as the Draft Conclusions confirm, jus cogens norms are hierarchically superior to other norms.33 Prosper Weil refers to their place “at 23

See, e.g., Mathias Reimann, “A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany” (1995) 16 Michigan Journal of International Law 403, at 423. 24 See, e.g., Orakhelashvili (above note 21), at 223–​38; Cassese (above note 20), at 162. 25 See William Conklin “The Peremptory Norms of the International Community” (2012) 23 European Journal of International Law 837, at 837–​61. 26 See, e.g., Dire Tladi, “The International Law Commission’s Draft Conclusions on Peremptory Norms of General International Law (jus cogens): Making Wine from Water or More Water than Wine” (2020) 89 Nordic Journal of International Law 244, at 256-​57; Orakhelashvili (above note 21), at 413–​448. 27 Charlesworth & Chinkin (above note 10), at 66. “The ‘most essential’ human rights are considered part of the jus cogens.” Id., at 68. 28 Id., citing Gordon Christenson, “Jus Cogens: Guarding Interests Fundamental to International Society” (1988) 28 Virginia Journal of International Law 585, at 587. 29 Id., citing Ulrich Scheuner, “Conflict of Treaty Provisions with a Peremptory Norm of General International Law and its Consequences” (1967) 27 Zeitschrift Fur Auslandisches Offentliches Recht und Volkerrecht 540, at 524. 30 Id., citing Alfred Verdross, “Jus Dispositivum and Jus Cogens in International Law” (1966) 60 American Journal of International Law 55, at 58. 31 Charlesworth & Chinkin (above note 10), at 67, citing Eric Suy, “The Concept of Jus Cogens in Public International Law” (1967) 2 The Concept of Jus Cogens in International Law (Carnegie Endowment for International Peace, 1967), at 18. 32 Jean Allain, “The Jus Cogens Nature of Non-​Refoulement” (2002) 13 International Journal of Refugee Law 533, at 535. See also Dinah Shelton, “Normative Hierarchy in International Law” (2006) 100 American Journal of International Law 291, at 323 (describing “universal norms” in international law as “a matter of necessity”). 33 Conclusion 3 of the Draft Conclusions (above note 1). See also Martti Koskenniemi “Hierarchy in International Law: A Sketch” (1997) 8 European Journal of International Law

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the summit (elite norms, as it were) of enhanced normativity.”34 And perhaps Anthony D’Amato sums it up best when he writes (albeit tongue-​in-​ cheek): “If an International Oscar were awarded for the category of Best Norm, the winner by acclamation would surely be jus cogens. Who has not succumbed to its rhetorical power? Who can resist the attraction of a supernorm against which all ordinary norms of international law are mere 97-​pound weaklings?”35 The status of jus cogens within international law is unparalleled. Jus cogens norms are constitutive; they help dictate the international legal order and influence State and individual actions. Jordan Paust emphasizes that “those who make claims about the inclusion of certain norms into the matrix of peremptory norms are actually participating in an effort to shape attitudes and, perhaps, human behavior.”36 In fact, he concludes that “[n]‌o human law is likely to be so eternal or so certain a guarantee to save us from ourselves.”37 In the same vein, former ilc chair Alain Pellet highlights the deterrent function of jus cogens. He analogizes that “peremptory norms are like nuclear weapons: their first role is dissuasive” and reasons that, as a result, they are “rather rarely infringed—​at least ‘frontally.’ ”38 Due to their rarefied status and potency, jus cogens norms are endowed with a certain sense of “magic.” Indeed, Andrea Bianchi asserts that the “evocative power” and “extraordinary force of social attraction” of jus cogens norms give them “an almost magical character.”39 And the Special Rapporteur himself has

34 35

36 37 38 39

566, at 566 (“[ J]‌us cogens or imperative norms. . . presuppose relationships of normative hierarchy.”). Prosper Weil, “Towards Relative Normativity in International Law?” (1983) 77 American Journal of International Law 413, at 416–​17. Anthony D’Amato, “It’s a Bird, It’s a Plane, It’s Jus Cogens!” (1990) 6 Connecticut Journal of International Law 1, at 1. Ulf Linderfalk stresses how evocative the term has become, noting that “[u]‌ttered to an audience of international lawyers it typically arouses strong emotions: depending on the context, either feelings of sympathy and compassion, or of repudiation and disgust.” Ulf Linderfalk, “All the Things That You Can Do with Jus Cogens –​ A Pragmatic Approach to Legal Language” (2013) German Yearbook of International Law 351, at 363. Jordan Paust, “The Reality of Jus Cogens” (1991) 7 Connecticut Journal of International Law 81, at 85. Ibid. “The major distinguishing feature of such rules is their relative indelibility.” Ian Brownlie Principles of Public International Law (Oxford University Press, 1979), at 513. Alain Pellet, “Comments in Response to Christine Chinkin and in Defense of Jus Cogens at the Best Bastion against the Excesses of Fragmentation” (2006) 17 Finnish Yearbook of International Law 83, at 87. Andrea Bianchi, “Human Rights and the Magic of Jus Cogens” (2008) 19 European Journal of International Law 491, at 508.

478 Hansel remarked on the doctrine’s “magical, revolutionary and perhaps miraculous quality.”40 One might reasonably assume that the process for identifying such vital, impactful norms would be unimpeachably rigorous. Yet, as Parts 3 and 4 demonstrate, this process is merely smoke and mirrors. 3

A Case of Misdirection: The Positivist Rejection of the Prohibition of Gender Discrimination

The “magic” of jus cogens norms is belied by the lack of methodological rigor in their identification process. A remarkable tension exists “between the weighty linguistic symbolism employed to explain the indispensable nature of jus cogens norms” and the “abstract and inconclusive nature of their formulation.”41 This “magical” doctrine with such profound impacts calls for a meticulous and equitable identification process. Yet a sound methodology for identifying jus cogens norms has yet to materialize.42 The recent ilc guidance, set forth in the Fourth Report and Draft Conclusions, can be seen as an effort to address this lacuna—​likely the most robust effort to date. The Fourth Report’s recitation and assessment of evidence seem to demonstrate the most comprehensive and precise methodology for identifying jus cogens norms.43 The ilc has expressed its commitment to optimizing the rigor of its methodology, stating that “[g]‌iven the importance and potentially far-​reaching implications of peremptory norms, it is essential that the identification of such norms and their legal consequences be done systematically and in accordance with a generally accepted methodology.”44 In a sense the ilc’s methodology serves as a “best case scenario” for jus cogens positivism.

40

41 42

43 44

Dire Tladi, “Codification, Progressive Development, New Law, Doctrine, and the Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens): Personal Reflections of the Special Rapporteur” (2019) 13 Florida International University Law Review 1137, at 1140. Charlesworth & Chinkin (above note 10), at 67. See Matthew Saul, “Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges” (2015) 5 Asian Journal of International Law 26, at 41 (“What is striking in relation to the body of literature as a whole is the general absence of detailed exploration of the methodological process that should be undertaken to determine whether or not a norm has jus cogens status.”). As Section 4 demonstrates, lack of robust analysis is an issue across jus cogens identifications made by States, international courts and scholars. Para. 2 of the Commentary to Draft Conclusion 1 of the Draft Conclusions (above note 1). Additionally, the ilc makes clear that the Draft Conclusions are “methodological in

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Thus, this chapter’s critique of the ilc’s methodology extends to the positivist jus cogens identification process as a whole. This Section addresses the ilc’s rejection of the prohibition of gender discrimination (the “pgd”), which is defined by inter alia the U.N. Convention on the Elimination of all Forms of Discrimination Against Women (“cedaw”).45 It begins by setting forth the ilc’s methodology for assessing and confirming a list of jus cogens norms, as well as excluding the pgd. This Section then unpacks the ilc’s rejection of the pgd, probing the omission of all favorable evidence and the reliability of the unfavorable evidence cited as a basis for exclusion. Indeed, this exclusion is a case of positivist misdirection: claiming rigorous objectivity while excluding the pgd without methodological basis. This Section concludes by posing a series of questions about the ilc’s methodology that arise from the pgd’s exclusion. The stage is set for uncloaking the deep methodological deficiencies and ultimate futility of jus cogens positivism, which are explored in Section 4. The International Law Commission’s Norm Identifications and Exclusions In the Fourth Report and Draft Conclusions, the ilc lays out its authoritative methodology for determining jus cogens status, as well as a list of norms that it has determined to be jus cogens. This list is non-​exhaustive such that virtually any norm might be jus cogens. The ilc, however, explicitly rejects the candidacy of the pgd and does in summary fashion. 3.1

45

nature.” See para. 1 of the Commentary to Draft Conclusion 23 of the Draft Conclusions (above note 1). cedaw, the global treaty on gender equity, defines gender discrimination as any “distinction, exclusion or restriction based on sex that has the effect or the purpose of compromising or destroying recognition, enjoyment or exercise by women, regardless of their marital status, on the basis of equality of men and women, human rights and fundamental freedoms in the political, economic, social, cultural and civil fields or in any other field.” Article 1 of the 1979 U.N. Convention on the Elimination of All Forms of Discrimination against Women (1979) [hereinafter, “cedaw”]. Under, cedaw, gender discrimination includes all forms of gender-​based violence. U.N. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19 (1992), at para. 6. Also, gender discrimination must be understood through an intersectional lens, as “inextricably linked with other factors that affect women, such as race, ethnicity, religion or belief, health, status, age, class, caste and sexual orientation and gender identity… [and] may affect women belonging to such groups to a different degree or in different ways to men.” U.N. Committee on the Elimination of Discrimination Against Women [hereinafter, “cedaw Committee”], General Recommendation No. 28 (2010), at para. 28.

480 Hansel The starting point for the Fourth Report is a list of norms that have been previously identified by the ilc and presumptively qualify as jus cogens.46 These norms are: the prohibition of aggression or aggressive force; the prohibition of genocide; the prohibition of slavery; the prohibition of apartheid and racial discrimination; the prohibition of crimes against humanity; the prohibition of torture; the right to self-​determination; and the basic rules of international humanitarian law (collectively, the “confirmed norms”).47 The ilc has adopted this list of norms in the Draft Conclusions.48 In establishing the jus cogens status of the confirmed norms, the Fourth Report devotes several pages to compiling and reviewing favorable evidence for each of them.49 While making clear that the evidentiary compilations may be incomplete, it nonetheless concludes that the evidence presented for each norm is sufficient to establish its jus cogens status.50 No reference is made to the existence of more comprehensive evidentiary compilations. And no reference is made to any evidence that might be unfavorable to the jus cogens status of the confirmed norms. The Report states that it is assessing “whether the peremptory character of those norms is ‘accepted and recognized by the international community of States as a whole.’ ”51 According to the Draft Conclusions, this assessment requires acceptance and recognition by “a very 46 47 48

49 50

51

Fourth Tladi Report (above note 13), at para. 122. Id., at para. 137. Annex to the Draft Conclusions (above note 1). For comparison, the influential Restatement on Foreign Relations of the United States states that jus cogens norms include: the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and “the principles of the United Nations Charter prohibiting the use of force.” Restatement (Third) of Foreign Relations of the United States, Section 702 cmts. d-​i, Section 102 cmt. k (1987). Fourth Tladi Report (above note 13), at paras. 62-​121. See Tladi (above note 40), at 1148 (“In each case the report concludes that there is ample support in State practice and the jurisprudence of the international courts and tribunals that the norms identified by the Commission in 2011 are accepted and recognized as norms from which no derogation is permitted.”); Fourth Tladi Report (above note 13), at para. 83 (“On the basis of the above, it can be concluded that the Commission’s inclusion of the prohibition of genocide in its previous list of norms of jus cogens is justified by the existing practice.”); id., at para. 90 (“This brief survey of sources illustrates that the prohibition of crimes against humanity is firmly established in both practice and doctrine as a norm that is accepted and recognized as one from which no derogation is permitted.”); id., at para. 108 (“For the reasons that will be advanced in the coming paragraphs of the present report, the Special Rapporteur is of the view that the Commission’s previous conclusions concerning the right to self-​determination was justified by the practice and that its inclusion in the list previously provided by the Commission is not in error.”) Fourth Tladi Report (above note 13), at para. 61.

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large majority of States.”52 No other benchmarks are provided, and no clarity is given as to whether jus cogens identifications are absolute or relative determinations. The ilc guidance as to how to identify and weigh evidence is limited to a list of primary and subsidiary forms of evidence that can establish jus cogens status. Primary forms of evidence include: treaty provisions, official statements and publications on behalf of States, domestic legislation and court decisions, and resolutions from international organizations.53 Subsidiary forms of evidence include international judicial decisions, scholarship and works by expert bodies established by States or international organizations.54 Beyond these groupings, no guidance is provided as to the evidentiary weight to be assigned to each form or to any particular item of evidence. The Report makes clear that the list of confirmed norms is non-​exhaustive and discusses a series of candidate norms.55 The Report spends a few paragraphs reviewing the evidence for the prohibition of enforced disappearances, the right to life and the principle of non-​refoulement,56 finding that there is “strong support” for their jus cogens status.57 It then states that there is “some support” for other norms, including the prohibition against arbitrary arrest, the right to due process and the prohibition of terrorism.58 Although it does not confirm their status, the Report does not foreclose the possibility that these candidate norms are jus cogens. In fact, it allows for the possibility that virtually any norm may qualify as jus cogens. Strikingly, however, the Fourth Report explicitly rejects the possibility that the pgd could be jus cogens. The Report finds that the pgd, along with the general principle of non-​discrimination and the duty to protect the environment, are not even candidates for jus cogens status.59 In doing so, the Report

52

53 54 55 56 57 58 59

Conclusion 7 of the Draft Conclusions (above note 1) (“It is the acceptance and recognition by the international community of States as a whole that is relevant for the identification of peremptory norms of general international law (jus cogens). . . Acceptance and recognition by a very large majority of States is required for the identification of a norm as a peremptory norm of general international law (jus cogens); acceptance and recognition by all States is not required.”). Conclusion 8 of the Draft Conclusions (above note 1). Conclusion 9 of the Draft Conclusions (above note 1). Fourth Tladi Report (above note 13), at paras. 52, 122–​23, 137. Id., at paras. 125-​33. Id., at para. 134. Ibid. Ibid. On the peremptory status of environmental protection, please refer to Nilufer Oral’s “Environmental Protection as a Peremptory Norm: Is it Time?” in this volume.

482 Hansel emphasizes the critical importance of these norms.60 These are the only norms that the Fourth Report identifies as unequivocally not jus cogens norms. The rationale for the definitive exclusion of the pgd is set forth in a single footnote. This footnote states, in relevant part, that “one of the hurdles that this proposition would have to overcome is the significant number of reservations that are attached to the principal instrument on gender discrimination, namely [cedaw], which has, at present, more than 55 reservations.”61 The Report does not explain why it only acknowledges these 55 reservations as evidence or their reliability as indicia of a lack of State acceptance and recognition. Nor does the Report mention any other evidence, favorable or unfavorable, specific to the pgd’s candidacy for jus cogens. The Report does point out that there is evidence in support of the general principle of non-​discrimination (not limited to gender discrimination).62 In another footnote, the Report lists a sampling of the myriad Inter-​American Court of Human Rights cases holding that the general principle of non-​ discrimination is a jus cogens norm.63 The Report does not explain why this chorus of judicial decisions does not suffice to qualify this norm for jus cogens candidacy, nor does it present additional evidence, favorable or unfavorable. Instead, the Report declares that “there is limited explicit opinio juris cogentis regarding the prohibition of discrimination in general (or the more limited, prohibition of gender discrimination).”64 Former ilc chair Alain Pellet has addressed the exclusion of the pgd in a similarly conclusory manner. In a 2006 essay, he opposes Chinkin’s arguments in favor of the pgd as jus cogens.65 He explains that, “regrettable as 60 61 62 63

64 65

Fourth Tladi Report (above note 13), at para. 135, note 411. Id., at note 411. Id., at para. 135. Id., at note 412. The cases listed in note 412 of the Fourth Report are the following: Yatama v. Nicaragua, Judgment of the Inter-​American Court of Human Rights, 23 June 2005, at para. 184; Servellón-​García et al. v. Honduras, Judgment of the Inter-​American Court of Human Rights, 21 September 2006, at para. 94; Expelled Dominicans and Haitians v. Dominican Republic, Judgment of the Inter-​American Court of Human Rights, 28 August 2014, at para. 264; Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile, Judgment of the Inter-​American Court of Human Rights, 29 May 2014, at para. 197; Veliz Franco et al. v. Guatemala, Judgment of the Inter-​American Court of Human Rights, 19 May 2014, at para. 205. Fourth Tladi Report (above note 13), at para. 135. The term “opinion juris cogentis” refers to “the acceptance and recognition of the international community of States as a whole.” Id., at note 413. Pellet (above note 38), at 84. He expounds that “[h]‌uman rights, or feminist, or environmentalist activism is, from my point of view, an extremely respectable posture –​but it can put lawyers into trouble.” Ibid.

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this situation might be,” there is insufficient evidence to support the norm because “the condemnation of gender discrimination is still limited to certain parts of the world and certain circles, which prevents it to be considered as ‘a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.’ ”66 With respect to the process of attaining jus cogens status, he emphasizes that “the lawyer is an observer of this process, not an actor”.67 Pellet does not mention any evidence, favorable or unfavorable, and does not provide or reference any analysis underlying his conclusion. In summarily excluding the pgd from jus cogens status, both Pellet and the Fourth Report indicate that the positivist identification process is an objective one. Yet they point to scant evidence as justification, while lamenting the purported ineluctability of the norm’s exclusion. A Lack of Basis for Excluding the Prohibition of Gender Discrimination The conclusory rejection of the pgd by the ilc68 raises serious questions about the positivist identification process as a whole. Scratching the surface reveals two particularly conspicuous issues: the near-​total omission of favorable evidence and the dubious reliance on cedaw reservations as unfavorable evidence. The ilc’s confident exclusion of the pgd, while citing to minimal evidence, might be understandable if a thorough analysis of the norm’s jus cogens status had been performed, either by the ilc or another international legal actor. It has not. As the following makes clear, it is far from self-​evident that the evidentiary calculus for the pgd does not qualify the norm for jus cogens status.69 3.2

3.2.1 Omission of Nearly All Favorable Evidence In declaring that the pgd does not pass evidentiary muster, neither Pellet nor the Fourth Report (nor any other ilc material) recognizes the substantial evidence in support of this norm. Yet support for the pgd as jus cogens can be

66 67 68 69

Id., at 85. Ibid. For the sake of simplicity, statements in the Draft Conclusions, the Fourth Report and Pellet’s essay are, at times, attributed to the “ILC” as an umbrella term; however, they may not reflect the views of the institution as a whole. Neither Pellet nor the Special Rapporteur, who authored the Fourth Report, were responsible for compiling and analyzing evidence for the PGD. This critique is only concerned with their cursory treatment insofar as it illustrates the general exclusion of the PGD in the absence of a rigorous methodological analysis.

484 Hansel found across various forms of evidence. Notably, this evidence is comparable to the Fourth Report’s compilations for each of the confirmed norms. Perhaps the strongest support for the pgd is found in treaty evidence, one of the primary forms of evidence set forth by the ilc. The norm has a dedicated global treaty in cedaw, which has been ratified by all but six U.N. Member States.70 Importantly, the U.N. Committee on the Elimination of Discrimination against Women (“cedaw Committee”), which oversees and interprets cedaw, has indicated that State obligations under the treaty have a non-​derogable character, emphasizing that “[t]‌he obligations of States parties do not cease in periods of armed conflict or in states of emergency resulting from political events or natural disasters.”71 Many treaties at the regional level also directly address and prohibit gender discrimination.72 Furthermore, general non-​discrimination provisions, which subsume prohibitions of gender discrimination,73 are found in every human rights treaty at the global and regional levels.74 Non-​discrimination provisions even permeate 70

71

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73

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U.N. Treaty Collection, Ch. iv Human Rights, 1979 Convention on the Elimination of All Forms of Discrimination against Women, available at https://​treaties.un.org/​Pages/​ ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​8&chapter=4&lang=en. (accessed 2 December 2020). cedaw Committee (above note 45), at para. 11. “Such situations have a deep impact on and broad consequences for the equal enjoyment and exercise by women of their fundamental rights. States parties should adopt strategies and take measures addressed to the particular needs of women in times of armed conflict and states of emergency.” Ibid. See, e.g., the 1982 African Charter on Human and Peoples’ Rights, at Article 18; the 2005 Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol); the 1994 Inter-​American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem Do Para); the 2014 Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). By the ilc’s own logic, treaty provisions prohibiting discrimination, generally, constitute evidence in support of the pgd. With respect to acts of apartheid, the Fourth Report asserts that because they constitute crimes against humanity, which have jus cogens status, “then it stands to reason that acts of apartheid . . . would themselves also be prohibited as jus cogens.” See, e.g., Fourth Tladi Report (above note 13), at para. 92. Similarly, because the pgd is subsumed within the general prohibitions of discrimination, evidence in support of the latter is evidence in favor of the pgd. See, e.g., the 1966 International Covenant on Civil and Political Rights, at Articles 2, 3 and 26; the 1966 International Covenant on Economic, Social and Cultural Rights, at Articles 2 and 3; the 1981 Convention on the Elimination of All Forms of Racial Discrimination, at Article 2; the 1953 European Convention on Human Rights, at Article 14; the 1982 African Charter on Human and Peoples’ Rights, at Articles 2 and 3; the 2004 Arab Charter on Human Rights, at Article 3; and the 1969 American Convention on Human Rights, at Articles 1 and 24.

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treaty articles that permit derogation75—​thus, effectively, this prohibition can not be derogated from when other rights can be.76 Such evidence seems particularly probative of jus cogens status.77 Additional evidence for the pgd can be found in international jurisprudence. At the regional level, there is a series of decisions by the Inter-​American Court establishing the general principle of non-​discrimination as jus cogens (many of which are listed in the Fourth Report’s aforementioned footnote).78 The Court’s advisory opinion entitled Juridical Condition and Rights of the Undocumented Migrants laid the foundation for these cases, holding that “the principle of equality before the law, equal protection before the law and non-​discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws.”79 Relevant scholarship also provides evidence for the pgd. For example, work by Lauri Hannikainen asserts that discriminatory treatment may trigger jus cogens status if sufficiently severe.80 Other scholarly works argue that certain 75 76

See, e.g., Article 4(1) of the 1966 International Covenant on Civil and Political Rights. “While article 4, paragraph 1, allows States parties to take measures derogating from certain obligations under the Covenant in time of public emergency, the same article requires, inter alia, that those measures should not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.” U.N. Human Rights Committee, General Comment No. 18 (1989), at para. 2. 77 Bolstering the treaty-​ based evidence are various General Comments and General Recommendations issued by treaty bodies. See, e.g., ibid. (“Non-​discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.”). 78 See Fourth Tladi Report (above note 13), note 412. 79 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion, Judgement of the Inter-​American Court of Human Rights, 17 September 2003, at para. 101. The Court reasoned that “[n]‌owadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable.” Ibid. See also Tatiana A. F. R. Cardoso Squeff and Marina de Almeida Rosa, “Jus Cogens: An European concept? An Emancipatory Conceptual Review from the Inter-​American System of Human Rights” (2018) 15 Revista de Direito Internacional 124, at 131–​32 (“Thus, it is established that the principles of equality before the law of non-​discrimination belong to the set of norms jus cogens¸ which gives them imperative character and entails erga omnes obligations of protection that bind all the States and generate effects with respect to third parties, including between individuals due to its horizontal and vertical efficacy breadth.”). 80 See Lauri Hannikainen, Peremptory Norms ( Jus Cogens) in International Law (Finnish Lawyers, 1988), at 208–​09, 482. Also, for decades, scholars have asserted that the general

486 Hansel aspects of the pgd are jus cogens. Such aspects include the prohibition of gender-​based violence during armed conflict.81 The foregoing is by no means an exhaustive review of the evidence in support of the pgd as jus cogens. Yet this incomplete compilation is comparable to the amount of evidence set forth (and deemed sufficient) for each of the confirmed norms. In particular, the treaty evidence for the pgd eclipses the treaty evidence in support of any one of the confirmed norms. Notwithstanding, the ilc confidently excludes the pgd without mentioning such evidence. 3.2.2

Questionable Reliance on cedaw Reservations as Unfavorable Evidence The Fourth Report cites only the number of State reservations to cedaw (“more than 55 reservations”) in excluding the pgd. There are numerous problems with relying on these reservations as evidence to undermine the pgd as jus cogens. Notably, the Fourth Report does not cite any reservations, or any unfavorable evidence at all, in its compilations of evidence for other norms.82

81

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principle of non-​discrimination constitutes customary international law. See, e.g., Ladan Askari, “Girls’ Rights Under International Law: An Argument for Establishing Gender Equality As A Jus Cogens”(1998) 8 Southern California Review of Law and Women’s Studies 3, at 8. See, e.g., David S. Mitchell, “The Prohibition of Rape in International Humanitarian Law As A Norm of Jus Cogens: Clarifying the Doctrine” (2005) 15 Duke Journal of Comparative and International Law 219, at 225 (arguing that “the prohibition of sexual violence in humanitarian law has emerged as one of the most fundamental standards of the international community as a norm of jus cogens.”); Veronica C. Abreu “Women’s Bodies As Battlefields in the Former Yugoslavia: An Argument for the Prosecution of Sexual Terrorism As Genocide and for the Recognition of Genocidal Sexual Terrorism As A Violation of Jus Cogens Under International Law” (2005) 6 Georgetown Journal of Gender and Law 1, at 8–​9 (asserting that the icty’s Furundzija decision establishes that “the icty’s Appeals Chamber has implicitly ruled that at least some acts constituting sexual terrorism violate jus cogens”). Scholars have deduced that the general prohibition on gender-​based violence is customary international law. See, e.g., Sara De Vido, “The Prohibition of Violence Against Women as Customary International Law? Remarks on the cedaw General Recommendation No. 35” (2018) 12 Diritti Umani e Diritto Internazionale 379. See, e.g., Fourth Tladi Report (above note 13), at para. 74 (citing the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights as evidence for the prohibition of torture, but not mentioning any reservations to these treaties).

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The sheer number of cedaw reservations is misleading.83 It is true that approximately 55 of the 189 State parties to cedaw have filed reservations.84 However, only approximately 36 of the 55 reserving States have reserved as to cedaw’s substantive rights.85 Approximately 19 of these States have only reserved as to cedaw’s optional dispute mechanism set forth in Article 29; reservations to this article have no bearing on the applicability of the substantive provisions and do not detract from the commitment of ratifying States to prohibiting gender discrimination.86 Also, reservations to cedaw are often temporary, as States modify or withdraw more cedaw reservations than reservations to any other human rights treaty.87 Accordingly, many existing reservations may be softened or retracted in the near future and cannot be interpreted as reflecting intransigent positions. Furthermore, certain reservations to cedaw’s substantive provisions might not be valid, which arguably undermines their evidentiary value. The Vienna Convention on the Law of Treaties nullifies reservations that are incompatible with a treaty’s object and purpose.88 The cedaw Committee and various scholars have found that the most common substantive reservation is incompatible with cedaw’s object and purpose and therefore invalid.89 Similarly, the Draft Conclusions make clear that “[a]‌reservation to a treaty provision that reflects a peremptory norm of general international law (jus cogens) does not affect the binding nature of that norm, which shall continue to apply as

83 84

85 86 87 88

89

Linda Keller, “The Impact of States Parties’ Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women” (2014) Michigan State Law Review 309, at 311. See U.N. Treaty Collection, Ch. iv Human Rights, 1979 Convention on the Elimination of All Forms of Discrimination against Women, Declarations and Reservations, available at https://​treaties.un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​8&chapter=4&clang=_​en#top (accessed 2 December 2020). Ibid. Ibid.; Keller (above note 83), at 311. Jane Connors, “Article 28” in Marsha A. Freeman, Christine Chinkin, and Beate Rudolf (eds.) The U.N. Convention On The Elimination Of All Forms Of Discrimination Against Women: A Commentary (Oxford University Press, 2012), at 591. Article 19 of the 1969 Vienna Convention on the Law of Treaties. See also U.N. Human Rights Committee, General Comment No. 24 (1994), at para. 8 (“Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant.”). See, e.g., cedaw Committee (above note 45), at para. 41 (finding that Article 2 is “the very essence of the obligations of States parties under the Convention” and thus that reservations to Article 2 are “in principle, incompatible with the object and purpose of the Convention and thus impermissible”); Keller (above note 83), at 317.

488 Hansel such.”90 Pursuant to this rule, if the jus cogens status of the pgd is established by other evidence, then cedaw reservations to substantive provisions are of no effect. Moreover, cedaw reservations are simply not accurate reflections of State attitudes and practice regarding gender discrimination. Scholars have found that “[o]‌verall, there does not seem to be a significant correlation between the number or type of reservation and the human rights conditions in a country.”91 Indeed, the U.N. Development Programme has ranked several of the approximately 36 States with substantive reservations among the top 15 States for gender equity.92 These States include Australia, Ireland, New Zealand, Singapore, Switzerland and the United Kingdom.93 These reservations cannot be relied upon as evidence of State repudiation of the norm. As the foregoing illustrates, the evidence in support of the pgd is compelling, while the reservations to cedaw are largely unreliable as evidence against the norm. It cannot be said that the pgd is manifestly ineligible for jus cogens status, such that a complete analysis need not be performed before excluding its candidacy. 3.3 Conclusion These issues call into question why the jus cogens status of the PGD is not the subject of much discussion or analysis. Given the strength of the relevant evidence, it is unclear why the Fourth Report cites only the number of cedaw reservations and leaves it at that—​while Pellet relies on a vague, unsupported assertion that the norm is “still limited to certain parts of the world and certain circles.” 90

91

92 93

Conclusion 13 of the Draft Conclusions (above note 1). See also Michael Domingues v. United States, Judgement of the Inter-​American Commission on Human Rights, 22 October 2002, at para. 85 (finding that the prohibition of capital punishment for juveniles is a norm of jus cogens binding the U.S., notwithstanding the State’s treaty reservations). Keller (above note 84), at 312. See also Todd Landman, Protecting Human Rights: A Comparative Study (Georgetown University Press, 2005), at 7, 118 (finding States that have recently ratified human rights treaties tend to include fewer reservations but tend to have more human rights violations); Neil Andrew Englehart, “Remarks at the Michigan State Law Review Symposium on Whether the U.S. Should Become a Party to the U.N. Convention on the Elimination of All Forms of Discrimination against Women,” 8 November 2013 (after a review of relevant data, observing no statistically significant impact of reservations on rights, regardless of the type of reservation). U.N. Development Programme, Human Development Reports: Gender Inequality Index (gii), available at http://​ hdr.undp.org /​en/​indicators/​68606 (accessed 2 December 2020). Ibid. Conversely, many of the lowest ranked States for gender equity have not filed any cedaw reservations. See ibid.

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Where is the analysis showing exactly how the pgd falls short of established and objective benchmarks or pales in comparison to other norms? Where is the comprehensive collection of relevant evidence for this norm, both favorable and unfavorable? Without it, how can one decide that sufficient evidence exists or does not exist for jus cogens status? What is the evidentiary weight of the cedaw reservations in undermining jus cogens status? Are they somehow enough to outweigh and preclude any mention of favorable evidence? How much more favorable evidence would be needed to outweigh the unfavorable evidence? And why is this evidence being used despite its demonstrated lack of reliability? In the absence of such evidence and analysis, how can the Fourth Report and Pellet definitively proclaim, with barely any explanation, that the pgd is not jus cogens? Their cursory dismissal of the pgd is not unique to the ilc, as the pgd is rarely, if ever, on authoritative lists of jus cogens norms. Yet, it is far from obvious that the norm prohibiting discrimination against over half the population, which is enshrined in every human rights treaty and the subject of a core human rights treaty, does not qualify as jus cogens.94 As Section 4 explains, the arbitrariness of the pgd’s exclusion is a byproduct of the methodological illegitimacy of jus cogens positivism; the exclusion of this particular norm, however, is not coincidental. 4

Beneath the Smoke and Mirrors: The Gendered Underpinnings of Positivist Methodology

Notwithstanding the foregoing, this chapter does not argue that the evidence for the prohibition of gender discrimination is sufficient for jus cogens status. Nor does it concede that such evidence is insufficient. Instead, as the questions raised by the pgd’s exclusion gesture toward, this chapter asserts that there is no way of knowing if the evidence relevant to this—​or any norm—​is sufficient or insufficient. This Section exposes the deeper mechanics of positivist methodology underpinning the exclusion of the pgd and the identification of the confirmed norms. Although this analysis focuses on the Fourth Report and the 94

As Charlesworth and Chinkin lament, “While a prohibition on sex discrimination . . . is included in every general human rights convention and is the subject of a specialized binding instrument, sexual equality has not been allocated the status of a fundamental and basic tenet of a communal world order.” Charlesworth & Chinkin (above note 10), at 70.

490 Hansel Draft Conclusions, the critique herein applies to positivist methodology, generally. (As explained above, these ilc efforts seem to set forth the most rigorous methodology to date.) Positivism remains the leading approach to jus cogens,95 and positivists outwardly “insist on rigorous adherence to positive sources of law.”96 The following analysis dispels such claims of rigor. Indeed, when viewed up close, the emperor has no clothes: Positivist methodology for jus cogens identification, as illustrated by the ilc, has fatal flaws that place the entire approach beyond redemption. These flaws render the process of jus cogens identification a discretionary exercise, ruled by subjectivity and potential biases. Yet the cloak of positivism obscures the discretionary basis of jus cogens determinations, such that the purported methodology can be cited as an objective basis on which to include or exclude norms—​ specifically, the pgd—​while the true bases remains hidden and unknown. This illusion is as harmful as it is intellectually dishonest; it serves to marginalize gender and devalue the interests and experiences of women, girls and gender minorities. As Section 5 explains, jus cogens may be untethered from positivism and grounded in a gender-​inclusive theoretical framework. 4.1 The Methodological Illegitimacy of Jus Cogens Positivism The Fourth Report’s methodology, described above in Section 3.1, is fatally deficient. Several defects render the methodology unsound, and the lack of reliability of the pool of evidence renders it unsalvageable. The ilc’s methodology is one of the (if not the) most rigorous and recent attempts at a positivist justification of jus cogens status; paradoxically, it lays bare the lack of rigor in the identification process—​as well as the impossibility of developing a legitimate positivist methodology. 4.1.1 Dissecting the Positivist Methodology The Fourth Report’s recitations of evidence and summary conclusions of jus cogens status, despite their rigor relative to other jus cogens identification efforts, do not constitute a sound methodology. There are myriad problems with this approach, a selection of which are addressed below. First, the methodology does not set forth meaningful standards for assessing the sufficiency of jus cogens evidence. Although the Draft Conclusions state that a “very large majority of States” must accept and recognize a jus cogens norm, it is unclear how much and what types of evidence will collectively 95 96

See Criddle & Fox-​Decent (above note 16), at 339 (“Most contemporary commentators continue to view jus cogens through the positivist prism of State consent.”). Ohlin (above note 3), at 707.

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satisfy this vague, malleable threshold.97 The ilc provides no objective benchmark, which would make clear, for example, why the confirmed norms are jus cogens and the pgd is not—​or how much more and what types of evidence would be needed for the latter to attain jus cogens status. The evidentiary compilations cannot be evaluated on an absolute basis without such a benchmark. The ilc does not make clear whether norms are to be recognized as jus cogens on an absolute or relative basis. Indeed, the absence of an objective benchmark raises the possibility that jus cogens status could be a relative determination, such that only a finite number of norms with the greatest evidentiary support may qualify. The Fourth Report does suggest a relative approach in stating that “it should be the case that such norms are few in number.”98 Pursuant to such a relative approach, the evidence pertaining to all international legal norms, including the confirmed norms and the pgd, would need to be compared and contrasted. A second methodological defect is that complete compilations of evidence do not exist for any of the norms, let alone all of them. Even though the Fourth Report’s compilations are styled as “brief surveys,”99 they are more comprehensive than other compilations the author has found.100 Yet, in the absence of complete evidence, including all unfavorable evidence, for each and every norm, there is no way to identify any jus cogens norms at all. Assuming jus cogens is an objective (yet unspecified) benchmark, then no norm can be deemed jus cogens unless all unfavorable evidence has been taken into account for every norm. For example, the jus cogens status of the confirmed norms cannot be determined in the absence of unfavorable evidence, such as treaty reservations. Also, norms, including the pgd, cannot be excluded from jus cogens classification because complete evidence cannot be compared against the benchmark. Even if jus cogens is a relative determination, no norms can be deemed jus cogens until the evidence for all norms have been compiled. Such evidence is a prerequisite for comparing and contrasting the evidentiary support for each norm, so that the finite (and unspecified) number of norms with the greatest evidentiary support can be identified. 97 98 99 100

See Conclusion 7 of the Draft Conclusions (above note 1). Fourth Tladi Report (above note 13), at para. 57. Id., at paras. 68, 90. The lack of evidentiary scrutiny for jus cogens norms by States, international courts and scholars is discussed below. Notably, in 1988, Lauri Hannikainen assembled impressive compilations of evidence for several norms and assessed their jus cogens status. See, generally, Lauri Hannikainen (above note 80). However, these compilations do not contain evidence from the last three decades and suffer from many of the methodological flaws discussed herein.

492 Hansel Third, the ILC lists the types of materials that may constitute evidence provides minimal guidance regarding how each evidentiary item is to be weighted in assessing jus cogens status. The Draft Conclusions divide the listed materials into primary and subsidiary forms of evidence, presumably indicating that the former should carry more weight than the latter.101 However, no additional guidance is provided. Thus, it is not clear what absolute or relative weight any individual form of evidence carries or what criteria determine the weight of any given evidentiary item. In the same vein, the ilc provides no guidance regarding how favorable evidence is to be weighed against unfavorable evidence. Currently, the ilc seems to be inconsistent in balancing these two types of evidence. The ilc’s treatment of State reservations to cedaw versus reservations to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“cat”) illustrates this inconsistency. The reservations to cedaw seem to outweigh the substantial evidence in favor of the pgd and may even be dispositive (notwithstanding their unreliability, as discussed above). Yet cedaw, the widely ratified core treaty dedicated to the pgd, does not seem to confer much relative weight in the jus cogens calculus. By contrast, the Fourth Report does seem to ascribe significance to cat, another core treaty dedicated to a norm, in justifying the prohibition of torture as jus cogens.102 cat is not as widely ratified as cedaw; in fact, cedaw has 18 more State parties than cat.103 Approximately 21 State parties to cat have lodged substantive reservations to the treaty, only 15 less than for cedaw.104 Thus, approximately 150 State parties to cat and 153 State parties to cedaw have not made substantive reservations. Based on this metric, which is the only one cited to justify the exclusion of the pgd, there is slightly more State support for the pgd than for the prohibition 101 Despite this indication, the Fourth Report heavily relies on the decisions of international courts in establishing the jus cogens status of the confirmed norms. See, e.g., Fourth Tladi Report (above note 13), at para. 63 (“The most cited example of the recognition of the prohibition of aggression is the Military and Paramilitary Activities case.”) The Fourth Report cites decisions of international courts as, apparently, leading evidence for the majority of the confirmed norms. Id., at paras. 63-​64, 69, 78, 84-​85, 92, 117. This reliance seems incongruous with the Draft Conclusions’ categorization of such decisions as subsidiary, rather than primary, forms of evidence. 102 Id., at para. 74. 103 Compare U.N. Treaty Collection (above note 70) (listing cedaw State parties) with U.N. Treaty Collection, Ch. iv Human Rights, 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at https://​treaties. un.org/​Pages/​ViewDetails.aspx?src=TREATY&mtdsg_​no=IV-​9&chapter=4&clang=_​en (accessed 2 December 2020) (listing cat State parties). 104 Ibid. Approximately 45 State parties to cat have filed reservations of any kind.

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of torture. Yet the Fourth Report seems to give enormous weight to cedaw reservations while not mentioning cat reservations.105 These methodological failings render the positivist approach, epitomized by the ilc, untenable. Further, even if these failings could be rectified—​even if there were clear benchmarks or guidance on relative comparisons among norms, even if all of the evidence for each norm was compiled and even if each evidentiary item was assigned weight in accordance with clear and consistent criteria—​jus cogens identifications still could not be made in a methodologically sound way. The unreliable pool of evidence precludes any such possibility. 4.1.2 An Irredeemable Pool of Evidence Compounding these methodological deficiencies is the questionable reliability of evidentiary items as indicators of the “acceptance and recognition by the international community of States as a whole.”106 Jus cogens evidence from States, international courts and scholars all suffer from reliability issues. These issues vary, but one commonality is a lack of rigorous analysis (or any analysis at all). Evidence of State acceptance and recognition of a norm’s jus cogens status is often unreliable due to its rarity, ambiguity and brevity. As Evan Criddle and Evan Fox-​Decent explain, “States rarely (if ever) express an affirmative intent to transform ordinary customary norms into peremptory law, and it is unclear what forms of State practice (if any) would support an inference of implied intent.”107 Further, scholars have found that State expressions of support for a norm’s jus cogens status are typically ambiguous and difficult to decipher.108 Such ambiguity is exacerbated by State actions that undermine statements of support. For example, the prohibition against torture, a confirmed norm that many States vocally support, is widely violated in practice.109 (Conversely, as explained in Section 3, State reservations to treaties do not necessarily correlate with a State’s repudiation of the norm to which the treaty is dedicated.)

1 05 106 107 108

See Fourth Tladi Report (above note 13), at paras. 69-​77. Conclusion 7 of the Draft Conclusions (above note 1). Criddle & Fox-​Decent (above note 16), at 340. See, e.g., Weisburd (above note 7), at 30. Accordingly, Weisburd emphasizes that “reliance on state practice to determine rules of jus cogens is necessarily undesirable.” Ibid. 109 See Criddle & Fox-​Decent (above note 16), at 340; Orakhelashvili (above note 21), at 113 (pointing out that State noncompliance with the prohibitions of aggression, genocide and slavery are also widespread). Notably, the same has been said of the pgd. Pellet (above note 38), at 85. This contradiction between word and deed seems to be overlooked for the prohibition of torture but not for the pgd.

494 Hansel Also, when States express their support for norms, they rarely expound on the reasons why jus cogens status is appropriate. One example is the Netherlands’ submission to the International Court of Justice (the “icj”) for the 2010 advisory matter Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo.110 The submission asserted that the right to self-​determination is a norm of jus cogens, relying on a single paragraph of references as to the norm’s “inalienable” and erga omnes character, as well as the ilc’s statement that its jus cogens status is “generally accepted.”111 The submission did not provide a clear explanation as to why the right to self-​ determination qualifies as a norm of jus cogens.112 As Matthew Saul observes, the general willingness of States “to endorse but not to explain the jus cogens concept places an onus on the subsidiary sources of international law, scholars and judges, to help make the concept workable.”113 Yet these sources are no more reliable than evidence from States. Indeed, international court decisions are generally marked by the same lack of depth as many State expressions of support. Saul has discovered that the “most prominent approach to the identification of jus cogens norms that is found in judicial practice is to accord a norm the status without further explanation; to just posit that a norm has jus cogens status.”114 There are countless examples of this “just posit” approach.115 One high-​profile example is the decision of the European Court of First Instance in Kadi v. Council of the European Union and Commission of the European Communities.116 In this case, the Court found it had the authority to review the legality of freezing assets, pursuant to the U.N. terrorist sanction regime, only with respect to alleged violations of jus cogens norms.117 The Court “just posited” that arbitrary deprivation of the right to property and denial of the right of access to a court would be contrary to jus cogens norms, although neither right was found to be infringed in this case.118 The Court provided minimal explanation of why these norms were jus cogens.119 Another high-​profile “just posit” example is the Inter-​American 1 10 See Kosovo Advisory Opinion, Written Statement of the Netherlands, 17 April 2009. 111 Id., at para. 3.2. 112 Saul (above note 42), at 30. 113 Ibid. 114 Id., at 43. 115 Id., at 43-​44. 116 See Yassin Abdullah Kadi v. Council of the European Union & Commission of the European Communities, Judgment of the Court of First Instance of European Communities Second Chamber, 21 September 2005. 117 Id., at para. 226. 118 Id., at paras. 227-​91. 119 Saul (above note 42), at 43–​44.

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Court’s decision in Juridical Conditions and Rights of the Undocumented Migrants (discussed above as evidence in favor of the pgd). In this case, the Court gave only a passing acknowledgement of relevant evidence in arriving at the conclusion that the prohibition of discrimination is a jus cogens norm.120 In fact, the Court’s reasoning has been described as “axiomatic.”121 Even court decisions considered to be among the most robust in their jus cogens analyses have been denounced as cursory. For example, many have criticized the icj’s decision in Belgium v. Senegal, which the Fourth Report relies on as evidence for the confirmed norms and is deemed to be more rigorous than the majority of decisions.122 Saul points out that the decision merely provides a “somewhat ambiguous reference” to customary law and several treaties that prohibit torture as a methodology.123 icj Judge Cancado Trindade, issuing a separate opinion, expressed his disappointment with the thinness of the main opinion’s methodology, stating: “My satisfaction would have been greater if the Court dwelt further upon it, and developed its reasoning on this particular issue, as it could and should, thus fostering the progressive development of 120 Juridical Condition and Rights of the Undocumented Migrants (above note 80), at paras. 97-​101. 121 See Bianchi (above note 39), at 506. Saul identifies additional decisions exemplifying the “just posit” approach, including: Prosecutor v. Zejnil Delalić, Judgment of the Trial Chamber of the International Tribunal for the Former Yugoslavia, 16 November 1998, at para. 454 and Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, icj Reports 2006, at para. 64. Saul (above note 42), note 95. Both of these cases are relied on as evidence by the Fourth Report. Fourth Tladi Report (above note 13), at paras. 69, 79. The latter case was relied on by the Netherlands in its submission to the icj, discussed above. See Kosovo Advisory Opinion (above note 110). 122 See Belgium v. Senegal (Questions Relating to the Obligation to Prosecute or Extradite), icj Reports 2012, at para. 99; Fourth Tladi Report (above note 13), at paras. 69, 84; Saul (above note 42), at 32 (“With this passage, the icj is more forthcoming than it has previously been on the source and method for jus cogens identification.”). 123 Saul (above note 42), at 26-​27. The passage comprising the bulk of the Court’s methodology reads as follows: “In the Court’s opinion, the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens). That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application (in particular the Universal Declaration of Human Rights of 1948; the 1949 Geneva Conventions for the protection of war victims; the International Covenant on Civil and Political Rights of 1966; General Assembly resolution 3452/​30 of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.’’ Belgium v. Senegal (above note 122), at para. 99.

496 Hansel international law.”124 He added that “up to now, the Court has not shown much familiarity with, nor strong disposition to, elaborate on jus cogens.”125 Similarly, scholars have criticized the methodological deficiencies of the Inter-​American Commission on Human Rights’ decision in Domingues v. United States, recognized as “one of the fullest discussions of jus cogens identification in any international judicial or quasi-​judicial forum.”126 In its decision, the Commission reviewed treaties, U.N. materials and domestic practice that generally support the relevant norm, the prohibition on executing defendants under the age of 18.127 However, the Commission still failed to explain how the evidence established the norm as jus cogens.128 As Saul remarks, “[o]‌ne is thus left wondering about the exact basis upon which the Commission thought that this norm, as opposed to other norms of customary law, had come to have an elevated normative status.”129 Moreover, the evidentiary value of many scholarly works may be questionable due to a similar lack of methodological rigor in identifying jus cogens norms. Saul has found that scholarship focused on the methodology for identification “often goes little beyond a collection of broad directives.”130 He argues that scholars in this space have been primarily concerned with justifying the concept of jus cogens, at the expense of methodological considerations and explaining norm identifications.131 Relevant scholarly works, in addition to State and judicial sources of evidence, are marked by shallow investigation and summary conclusions. The foregoing demonstrates that the positivist methodology for jus cogens identification, typified by the ilc’s approach, is fatally flawed. Even if its deficiencies could somehow be rectified, the unreliability of the pool of evidence 124 See separate opinion of Judge Cançado Trindade in Belgium v. Senegal (above note 122), at para. 158. 125 Id., at para. 159. 126 Saul (above note 42), at 50. 127 See Domingues v. United States (above note 90), at paras. 50-​85. 128 See Saul (above note 42), at 50. 129 Ibid. Often, international court decisions that express general support for norms but do not identify them as jus cogens are relied upon as evidence of such status. See, e.g., Fourth Tladi Report (above note 13), at paras. 78, 92, 109, 117. One could argue, pursuant to well-​ established canons of legal interpretation, that if the courts intended to find that a norm was jus cogens, they would have expressly stated as much. In turn, the reliability of these decisions as evidence may be particularly limited. 130 Saul (above note 42), at 41, note 84. There are, however, some exceptions. See, e.g., Mitchell (above note 81), at 234-​56 (detailing the evidence in support of the prohibition of sexual violence in humanitarian law as a norm of jus cogens). 131 Saul (above note 42), at 45.

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renders any positivist methodology unsound—​and irredeemably so, given that decades of unreliable evidence cannot now be made reliable. Proponents of the positivist approach might argue that courts regularly employ rather loose, indefinite methodologies when applying judicial tests. However, such methodologies are typically developed and refined through caselaw, which does not seem to be an option here (in part because, as explained above, international courts barely engage with methodology). Also, jus cogens identifications seem to be qualitatively different than judicial tests, as underscored by the fact that a range of international legal actors, not only courts, conduct such identifications.132 Indeed, judicial determinations of jus cogens are merely subsidiary evidence of a norm’s status. Perhaps the most important distinction is that, unlike most judicial tests, positivist jus cogens identifications are cloaked in false claims of objectivity and methodological rigor, as explored in detail below. 4.2 The Illusion of Jus Cogens and Its Gendered Consequences Although the foregoing critique may seem pedantic, it lays bare the inchoate and unsalvageable positivist methodology for jus cogens identification. Positivism’s methodological illegitimacy leaves decision-​makers with an enormous amount of discretion in identifying jus cogens norms. Meanwhile, positivism’s claims of objectivity and rigor provide cover for gendered assumptions and biases. The ramifications of this illusion for women, girls and gender minorities are profound. 4.2.1

Overwhelming Discretion Conferred by Positivism’s Methodological Deficiencies The fatally flawed and irredeemable methodology for identifying jus cogens norms confers a staggering amount of discretion on the decision-​maker. The decision-​maker is effectively unconstrained in choosing, for example: whether to apply an absolute or relative standard; what evidentiary benchmark to use or how many norms can be deemed jus cogens; how much and what types of evidence suffice to establish jus cogens status; which evidentiary items, favorable or unfavorable, to self-​select; and how each evidentiary item should be

132 In fact, jus cogens identifications may be more analogous to expert opinions proffered to courts to assist them in rendering their decisions. It is difficult to imagine a court admitting an expert opinion on jus cogens status based on positivist methodology, as the proffered opinion would likely be deemed inadmissible for lack of methodological soundness. See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., Judgement of the U.S. Supreme Court, 28 June 1993, at 597 (emphasizing that expert testimony must “rest[] on a reliable foundation” to be admissible).

498 Hansel weighted, notwithstanding that many of the evidentiary items are unreliable and based on discretionary identifications, themselves. The wide latitude bestowed upon decision-​makers leaves them free to make determinations based on subjective preferences—​in fact, it requires them to do so. It is not possible for decision-​makers to make objective jus cogens identifications using positivist methodology. Because the cloak of positivism provides cover for the true bases of decision-​ making, the actual discretionary processes for jus cogens identification are opaque and unknown. Scholars have speculated that decision-​makers base their norm identifications on instinct, an approach amounting to little more than “I know it when I see it.”133 Indeed, some decision-​makers may believe “that certain unwritten norms are of such importance that they should be accepted as legal on the basis of intuition, rather than only after satisfying a rigorous scientific method.”134 In a 1990 review of Theodor Meron’s work, former ilc member Martti Koskenniemi diagnoses Meron’s positivist methodology as intuitive decision-​making. In the context of customary international law, Koskenniemi explains that, despite Meron’s commitment to “irreproachable legal methods” and “a noncontroversial litmus test,” it is the decision-​maker’s “certainty” that a norm must be unlawful that determines its status, rather than State behavior.135 Koskenniemi asserts that even if positivist methodology could be made more rigorous, norm recognition would always come down to instinct.136 He seems to endorse such instinctive reasoning as a valid basis for identification, stating: Might it not be that the certainty we have of the illegality of genocide, or of torture, or of depriving ethnic wholes the right of self-​determination, 133 This is the judicial standard made infamous by United States Supreme Court Justice Potter Stewart in Jacobellis v. Ohio, Judgement of the United States Supreme Court, 22 June 1964. In his concurrence, Justice Stewart employed the “I know it when I see it” standard when discerning whether or not the content at issue constituted “hard-​core pornography” in violation of obscenity laws. Id., at 197. 134 Saul (above note 42), at 45–​46. 135 Martti Koskenniemi, “Review: The Pull of the Mainstream, Human Rights and Humanitarian Norms As Customary Law by Theodor Meron” (1990) 88 Michigan Law Review 1946, at 1952. 136 Id., at 1953. Koskenniemi states: “It is, of course, true that people are uncertain about right and wrong. . . But one should not pretend that this uncertainty will vanish if only one is methodologically ‘rigorous.’ If the development of the human sciences has taught us anything during its short history, it is that the effort to replace our loss of faith in theories about the right and the good with an absolute faith in our ability to understand human life as a matter of social ‘facts’ has been a failure.” Ibid.

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is by itself sufficient reason to include those norms in international law? What does it add to such certainty if we find, or do not find, a precedent, a State, or the United Nations General Assembly, saying the same? Very little, I feel.137 With respect to jus cogens norms, Koskenniemi also emphasizes an instinctive approach, positing that “if you and I believe something is so important that it can in no circumstance be derogated, then surely this conviction is deeper and more forceful than any conviction about legal validity created by any formal test, and we will feel fully justified in enforcing it as law.”138 This approach is one possibility of how decision-​makers identify norms. Other scholars have declared that any decision-​making that does not adhere to positivism must be based on natural law theory. In this vein, Jens David Ohlin describes jus cogens as “natural law in positivist clothing”139 and asserts that “anything that goes beyond positivism has some element of naturalism in it, because the theory flows either directly or indirectly from reason, rather than from the positive sources of law.”140 Likewise, scholars have claimed that “[o]‌utside of positivism, the only legal theory we have for explaining substantive norms is natural law.”141 These depictions of jus cogens decision-​making present another possibility, one aligned with the historical and persistent positivism-​normativism binary. Despite scholarly conjecture, however, the author is not aware of any studies establishing the true bases of jus cogens decision-​making. The international community simply does not know how these identifications are being made, how decision-​makers are exercising their vast discretion. There is no reason 1 37 Id., at 1952. 138 Id., at 1961. Koskenniemi speculates that legitimacy concerns explain the reluctance of decision-​makers to explicitly acknowledge instinctive norm identifications. See id., at 1948. 139 Ohlin (above note 3), at 715. “Natural law” is defined as “norms and principles deducible from nature, reason, or the idea of justice.” Alexander Orakhelashvili, “Natural Law and Justice” Max Planck Encyclopedias of International Law (last updated August 2007), para. 1. Although there may be intersections with the instinctive approach Koskenniemi describes, the natural law approach, pursuant to this definition, has a certain coherence (“norms and principles”) that seems to be qualitatively different from ad hoc, instinctive decision-making. 140 Ohlin (above note 3), at 719–​20. 141 Mary Ellen O’Connell, “Jus Cogens: International Law’s Higher Ethical Norms” in Donald Earl Childress (ed.) The Role of Ethics in International Law (Cambridge University Press, 2012), at 83. See also Weisburd (above note 7), at 30 (“[I]‌nternational law offers two . . . means of determining the content of jus cogens. They are . . . either a focus upon positive acts of states, or reliance upon natural law.”).

500 Hansel to think that decision-​makers consistently base jus cogens identifications on either instinct or natural law. In fact, States, which produce the primary evidence of jus cogens status, are particularly unlikely to rely on either of these bases. While it is conceivable (but in no way established) that some judges and scholars might find these bases attractive, States are most likely to use their discretion to make jus cogens identifications based on their own interests and diplomatic agendas. Accordingly, in light of the overwhelming discretion conferred by positivist methodology and the unknown bases of jus cogens decision-​making, there is no reason for the international community to remain committed to the positivist-​normativist binary. Positivism is revealed as a catalyst and a cloak for discretionary decision-​making. And the discretion that governs jus cogens identifications may or may not include a normativist dimension—​depending on whether decision-​makers elect to incorporate one. If they do, they may only apply parts and combinations of normativist theories and may or may not use the same normativist theory as one another or from one decision to the next. The international community must embrace jus cogens agnosticism. All that is known is that the cloak of positivism provides cover for a wide range of bases for jus cogens decisions making. Under this cloak, decision-​makers need not explain how or why they extended or denied jus cogens recognition. The thinness of State, judicial and scholarly items of evidence, described above, exemplify this point.142 Although such unfettered discretion may offer a certain quixotic appeal, the illusion of jus cogens ultimately results in significant harms. 4.2.2 How the Obfuscation of Such Discretion Marginalizes Gender Having revealed that positivist jus cogens identifications are grounded in discretionary decision-​making, this Section explores the resulting detriment to women, girls and gender minorities. Pantomiming adherence to a sound methodology, while making discretionary identifications, is duplicitous. This duplicity, however, is more insidious than mere intellectual dishonesty; it has deleterious consequences. Indeed, the positivist illusion involves using the pretense of objective and rigorous methodology to justify the discretionary selection of jus cogens norms—​and, perhaps more importantly, the discretionary exclusion of norms from jus cogens status.

142 Similarly, the breadth of discretionary options further elucidate the unreliability of the pool of jus cogens evidence, seemingly based on a hodgepodge of opaque and inconsistent rationales.

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The exclusion of the pgd instantiates this illusion. The Fourth Report laments that the pgd does not pass evidentiary muster (while assuring that on a normativist basis the pgd would qualify as jus cogens).143 In doing so, the Report only cites the number of State reservations to cedaw, notwithstanding their unreliability and the substantial evidence in support of the norm.144 Also, Pellet justifies excluding this norm by relying on the purported objectivity of the jus cogens identification process. In response to Chinkin’s argument in favor of the pgd, he baldly asserts that the norm is “still limited to certain parts of the world and certain circles.”145 With respect to the process of attaining jus cogens status, he claims that “the lawyer is an observer of this process, not an actor”146—​as if positivist identification were a rigorous means of assessment instead of a subjective and discretionary selection process. Despite their apparent deference to the positivist “process,” neither the Fourth Report nor Pellet provides or refers to any methodological assessment or evidentiary compilation relevant to the pgd.147 The positivist illusion relies on a fatally flawed methodology to exclude the pgd based on structural gender biases. Given their vast amount of discretion, positivist decision-​makers could find that the pgd is a jus cogens norm and quite easily justify this selection. They could point to inter alia the substantial favorable evidence set forth in Section 3, which rivals the Fourth Report’s compilations for the confirmed norms. In particular, they could cite to the voluminous treaty evidence, which is a primary form of jus cogens evidence. The pgd is enshrined in every human rights treaty, including in derogation provisions, and a widely ratified human rights treaty is dedicated to the norm. This treaty evidence eclipses the treaty evidence in support of any of the confirmed norms. Yet decision-​makers have consistently failed to entertain or have summarily rejected the pgd’s jus cogens candidacy while laying claim to methodological rigor and objectivity. The cloak of positivism, which conceals 1 43 144 145 146 147

Fourth Tladi Report (above note 13), at para. 135, note 411. Ibid. Pellet (above note 38), at 84–​85. Ibid. Linderfalk has found that uses of “jus cogens with a camouflaging intent” are often marked by terms such as “obvious” and “self-​evident,” or the assertion that “anything else would be absurd.” Linderfalk (above note 35), at 368, quoting Christopher Ford “Adjudicating Jus Cogens” (1994) 13 Wisconsin International Law Journal 145, at 153, 164. He adds that “[r]‌eferring to a proposition as the result of ‘a general understanding,’ or ‘a universal consensus,’ may also do the trick.” Linderfalk (above note 35), at 368, quoting Darcie L. Christopher, “Jus Cogens, Reparation Agreements, and Holocaust Slave Labour Litigation” (2000) 31 Law & Policy in International Business 1227, at 1234–​1236.

502 Hansel the discretion used to identify jus cogens norms, allows for unconstrained gender biases. It is well-​established that gender biases pervade international law; they are in its disciplinary bones. In 2000, Charlesworth and Chinkin detailed the marginalization of feminist perspectives across international legal institutions and doctrines in their path-​ breaking book The Boundaries of International Law: A Feminist Analysis.148 Recently, Judith Gardam has observed that little has changed in the past two decades, as much feminist engagement is still met with “vast indifference” by the “mainstream legal fraternity.”149 Additionally, Ekaterina Yahyaoui Krivenko has examined the persistent lack of receptivity to feminist perspectives within international legal institutions, including the icj, which she deems “impermeable” to feminist approaches.150 Viewed against this backdrop, the exclusion of the pgd is far from coincidental. It makes sense that the allowance of gaping room for discretion in an international law doctrine would default to the discipline’s intrinsic gender bias. As Catherine O’ Rourke explains, “jus cogens is revealed to be not incidentally silent on gender in its prevailing formulations, but instead structurally blind to gender in its foundational tenets.”151 Anne-​Marie Levesque explicitly links the exclusion of the pgd as a jus cogens norm to the androcentric bias permeating international law. She writes: The theories of jus cogens are indeed at the crossroads of several vectors carrying an implicit male standard, which only makes their overlapping more difficult to unravel and counter. A first vector would be that of equivalence between man and human, which colors international human rights law and consequently jus cogens; a second would be that of the masculine character of the State and of other international legal institutions, which would influence the identification of imperative standards according to the masculine standard. Finally, the process of 148 See, generally, Hilary Charlesworth and Christine Chinkin The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000). 149 Judith Gardam, “Feminist Interventions into International Law: A Generation On” (2019) 40 Adelaide Law Review 219, at 221, citing Hilary Charlesworth, ‘Talking to Ourselves? Feminist Scholarship in International Law” in Sari Kouvo and Zoe Pearson (eds), Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart Publishing, 2011). 150 Krivenko (above note 9), at 960. 151 Catherine O’ Rourke, Women’s Rights in Armed Conflict under International Law (Cambridge University Press, 2020), at 142.

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forming jus cogens itself, without necessarily favoring the male standard, would however help to maintain it by its very great propensity for the status quo.152 Levesque cites Catharine MacKinnon in arguing that human rights are prioritized according to “some basis men have decided is deserving of dignity and a measure of power . . . because that is a basis on which they have been deprived of dignity and power.”153 She asserts that the exclusion of the pgd can be explained by the fact that the “standard person,” which is conceptualized as a (presumably, cis-​gender) man, does not typically experience gender discrimination.154 The marginalization of gender due to the illusion of jus cogens is consistent with dynamics identified in feminist critiques of international human rights positivism. Kimberly Brayson describes the ways in which human rights positivism is propelled by myths that it is objective (“gender-​less”) and does not implicate power dynamics.155 These myths have been refuted by decades of critique exposing positivist foundations as patriarchal and deeply biased.156 Positivism is the “legal position of power over knowledge production in relation to the question what is law?”157 By claiming objectivity, however, positivism insulates itself from critiques based on societal inequalities or new points

152 Anne-​ Marie Levesque, “Jus Cogens and Non-​ Discrimination: Why Is Gender Discrimination Not Prohibited by a Peremptory Norm of International Law”(2014) 48 Revue Juridique Thémis de L’Université de Montréal. 453, at 503–​07 (originally published in French). 153 Ibid. 154 See ibid. Similarly, Charlesworth and Chinkin argue, “Jus cogens norms reflect a male perspective of what is fundamental to international society that may not be shared by women or supported by women’s experience of life.” Charlesworth & Chinkin (above note 10), at 67. 155 Kimberley Brayson, “Positivism and the Peace/​Power Dialectic: Feminist Reflections in a Transnational Age” (2019) in Siliquini-​Cinelli L. (eds) Legal Positivism in a Global and Transnational Age, at 227–​29. 156 Id., at 227. TWAIL scholars have also debunked such positivist myths. See, e.g., Antony Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-​Century International Law” (1999) 40:1 Harvard International Law Journal 1, at 7 (“The violence of positivist language in relation to non-​European peoples is hard to overlook. Positivists developed an elaborate vocabulary for denigrating these peoples, presenting them as suitable objects for conquest, and legitimizing the most extreme violence against them, all in the furtherance of the civilizing mission—​the discharge of the white man’s burden.”) 157 Brayson (above note 155), at 245

504 Hansel of view.158 Brayson adds that the beliefs and attitudes of those internal to the positivist tradition, most of whom are cis-​gender men,159 dictate the law of the tradition.160 She explains that their interest lies in perpetuating their privilege, at the expense of the outsiders: The continuing project of positivism as orthodox and valid is then precisely about maintaining this privileged position of power for both sovereign entities and for theorists attached to the positivist position, who are protected through insularity from witnessing the pain of positivism. Characteristic of the pain of positivism is the exclusion and non-​recognition of a vast proportion of those peoples living under its purview.161 According to Brayson, as positivist insiders shore up their privileged positions, feminist concerns and perspectives linger at the margins. Indeed, as Krivenko observes, “the notion of jus cogens is typically abstract and, for scholars unfamiliar with feminist literature, ‘neutral,’ ” yet “biases and silencing” lurk behind such abstraction.162 The staggering amount of discretion, created and camouflaged by a deficient methodology, allows for pervasive gender biases to inform jus cogens identification. Accordingly, the positivist illusion serves to entrench and recapitulate the marginalization of gender that permeates international law.163 4.3 Conclusion The “magical” powers of jus cogens stand in stark contrast to the gendered illusion of positivist methodology. Upon close examination, positivist claims of objectivity and methodological rigor are belied by the fatal deficiencies

158 Id., at 218, 226. “This has been successful to the extent that positivism has achieved intellectual isolation and protected analytical, positivist intellectual borders from feminist intrusions.” Id., at 244. 159 Notably, in its 73-​year history only seven of the ilc’s 229 members (3%) have been women. gqual, Current Composition of International Tribunals and Monitoring Bodies, available at http://​www.gqualcampaign.org/​ 1626-​2/​ (accessed 2 December 2020). 160 Brayson (above note 155), at 226. 161 Id., at 232. 162 Krivenko (above note 9), at 963, 967. 163 Cf. Ohlin (above note 3), at 711 (“for jus cogens to operate at its most demanding and utopian level—​which is why jus cogens exists—​it needs to move beyond the positive sources of law, which are inevitably apologist, since they end up mirroring existing State behaviour.”).

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of the norm identification process. These deficiencies allow for discretionary decision-​making that is cloaked by the positivist illusion. This obfuscation is at the expense of feminist considerations and serves to marginalize gender. Faced with positivism’s methodological failures and deleterious gender impacts, a sense of nihilism about the concept of jus cogens might seem appropriate.164 However, the doctrine remains one of the few international law tools to counter and rein in the harmful acts of States.165 Thus, jus cogens must find new ideological footing, as the following Section explores. 5

Conclusion

Perhaps the adoption of a coherent normativist foundation—​one that is gender-​inclusive—​could improve upon the smoke and mirrors of the positivist approach. It is true that, as Ulf Linderfalk explains, “legal idealists face a no less difficult task than legal positivists do”:166 Admittedly, a normativist framework, like positivism, will likely leave considerable room for discretion. At least, however, such discretion will not be cloaked by the illusion of an objective, rigorous methodology.167 Identifying the appropriate normativist theory on which to base jus cogens is beyond the scope of this chapter; there is no shortage of literature on this topic. In light of the foregoing, however, this chapter does urge the selection of a normativist foundation that reflects feminist priorities. Toward this end, the selected theory must support the recognition of the pgd as jus cogens. Such recognition would improve the lives of women, girls and gender minorities and help correct structural biases within international law. As explained in

164 See, e.g., Ulf Linderfalk, “The Emperor’s New Clothes –​What If No Jus Cogens Claim Can Be Justified?” (2020) 22 International Community Law Review 139, at 162 (stating that “if no justification of a jus cogens proposition can be presented, this is reason to doubt whether, eventually, the concept of jus cogens norms really serves its intended purposes” and wondering if the doctrine “should be discarded and other means be invented that serve these purposes better”). 165 Krivenko (above note 9), at 971. “Even Charlesworth and Chinkin do not challenge the category as such, despite their criticism; instead, they redefine its content.” Ibid. 166 Linderfalk (above note 164), at 143–​44. 167 Arguably, the origins of jus cogens were not grounded in positivism. Verdross conceptualized the concept as an “ethical minimum” and did not predicate jus cogens status on the views of States. Verdross (above note 15), at 576.

506 Hansel Section 2, jus cogens status is constitutive and would help “shape attitudes and, perhaps, human behavior” regarding gender discrimination.168 To further promote inclusivity, the selected normativist foundation should apply a feminist lens throughout the doctrine. Accordingly, additional norms could be recognized that reflect and represent the lives of women, girls and gender minorities.169 Such rights might include the right to an adequate standard of living170and the right to a healthy environment,171 given the profound gendered impacts of these rights. Moreover, the construction of all norms of jus cogens could include gender considerations. Indeed, references to evidentiary items reflecting such priorities are conspicuously absent from the ilc’s work,172 indicating that the construction of the confirmed norms do not meaningfully include feminist priorities. Including gender in norm construction would involve, for example, acknowledgement that State failures to prevent and redress domestic violence may amount to torture173 and emphasis on gender perspectives within the right to self-​determination.174 168 Given that gender discrimination must be addressed using an intersectional lens, also recognizing the general principle of non-​discrimination as jus cogens would make conceptual sense. See, generally, Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum 139. 169 As Charlesworth and Chinkin explained, “[f]‌eminist rethinking of jus cogens would also give prominence to a range of other human rights.” Charlesworth & Chinkin (above note 10), at 75. 170 See, e.g., Article 11(1) of the 1966 International Covenant on Economic, Social and Cultural Rights. 171 See, e.g., Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina, Judgement of the Inter-​American Court of Human Rights, 6 February 2020 (recognizing the right to a healthy environment). 172 Tellingly, in the 68 single-​spaced pages of the Draft Conclusions, there is not a single mention of “women,” “girl” or “feminist,” and the only mention of “gender” is a cite to Charlesworth and Chinkin’s Gender and Jus Cogens for a proposition concerning Article 53 of the 1969 Vienna Convention on the Law of Treaties. See Para. 2 of the Commentary to Draft Conclusion 2 of the Draft Conclusions (above note 1), note 701. 173 See, e.g., U.N. Committee Against Torture, General Comment No. 2, at para. 18; Opuz v. Turkey, Judgement of the European Court of Human Rights 9 June 2009; Rhonda Copelon, “Recognizing the Egregious in the Everyday: Domestic Violence As Torture” (1994) 25 Columbia Human Rights Law Review 291, at 296 (arguing that “when stripped of privatization, sexism and sentimentality, private gender-​based violence is no less grave than other forms of inhumane and subordinating official violence that have been prohibited by treaty and customary law and recognized by the international community as jus cogens, or peremptory norms.”); Charlesworth & Chinkin (above note 10), at 73 (“Violence against, and oppression of, women is therefore never a purely ‘private’ issue. . . [I]‌t is caused by ‘the structural relationships of power, domination and privilege between men and women in society. Violence against women is central to maintaining those political relations at home, at work and in all public spheres.’ These structures are supported by the patriarchal hierarchy of the nation State.”). 174 Charlesworth & Chinkin (above note 10), at 73 (pointing out that “the oppression of women within groups claiming the right of self-​determination has never been

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One normativist framework that might support a gender inclusive jus cogens is the fiduciary theory set forth by Criddle and Fox-​Decent. Under this theory, jus cogens norms flow from a fiduciary relationship between the State and its people and thus reflect the priorities of the latter.175 This approach moves beyond positivist reliance on evidence of State consent and relies instead “on the legal significance of dignity within the juridically secure confines of a full-​blooded legal relationship—​the State-​subject fiduciary relationship.”176 The resultant norms would likely include the pgd because “the fiduciary State must provide for every individual’s secure and equal freedom” and is “duty-​bound to protect every individual against all forms of arbitrary discrimination.”177 Also, this theory could support the recognition of additional norms that reflect feminist priorities. Recognition of these norms would be pursuant to the theory’s principles that “peremptory norms must be solicitous of the legal subject’s legitimate interests” and “norms that are indispensable to the fundamental and equal security of individuals qualify as peremptory norms.”178 Furthermore, this theory could help ensure that gender perspectives are mainstreamed across all jus cogens norms. For example, “[u]‌nder the fiduciary model, the jus cogens prohibition against genocide would have a broader scope than under the Genocide Convention because it would proscribe genocidal acts not only against ‘a national, ethnical, racial or religious group’ but also against groups based on political affiliation, gender, or other characteristics.”179 The fiduciary theory of jus cogens is not without its detractors180 and calls for a deeper feminist investigation; however, it serves as one example of a potentially viable framework. Jus cogens captures the imagination of international lawyers and shapes the global order through its legal and symbolic impacts. The doctrine does indeed appear to have “magical” powers. Yet positivism, the leading approach to jus cogens identification, involves an illegitimate methodology that results in discretionary determinations of which norms deserve jus cogens recognition and

1 75 176 1 77 178 179 180

considered relevant to the validity of their claim or to the form self-​determination should take.”) Criddle & Fox-​Decent (above note 16), at 347-​48. Id., at 348. “On the fiduciary theory, arguments about whether consensus or a supramajority are required for a jus cogens norm to emerge are misplaced, since they all begin from the false premise of State consent.” Id., at 347. Id., at 356. Id., at 363. Id., at 387 (emphasis supplied). For example, Mark Retter dismisses the model as “wishful thinking,” pointing out that “[n]‌ot even domestic law recognises such an overarching legal fiduciary relationship as applying to domestic governance.” Mark Retter, “Jus Cogens: Towards an International Common Good?” (2011) 2:4 Transnational Legal Theory 537, at 568.

508 Hansel which do not. Such discretionary determinations belie and are obscured by positivist claims of rigor and objectivity. This illusion serves to marginalize gender by, for example, excluding the prohibition of gender discrimination from jus cogens status. Abandoning this smoke and mirrors approach in favor of a gender-​inclusive foundation may help correct this doctrinal bias, as well as the gender bias pervading international law as a whole.

Acknowledgements

I would like to thank Dire Tladi for the invitation to contribute to this volume and Catherine Sweetser and Tzvika Nissel for their comments on an early draft. All errors and mistakes are the author’s own.

Chapter 19

Ending the Splendid Isolation—​Jus Cogens and International Economic Law Makane Moïse Mbengue and Apollin Koagne Zouapet 1

Introductory Remarks: “Civilize” the Restive Law…

There are two compelling observations for anyone who embarks on a study on jus cogens and international economic law (“IEcL”). First, surprisingly little research has been done on the relationship between jus cogens and international economic law.1 Yet, the two concepts are closer than they may seem at first glance. Both jus cogens and IEcL carry a certain idea of “constitutionalisation” of international law. The approach is well known concerning jus cogens and many authors argue that the peremptory norms of international law introduce hierarchy in international law which is characteristic of domestic legal orders.2 In this sense, jus cogens has been presented as a sign of the maturity of the international legal order, systematising international law both formally and substantively. In the same vein, it is seen as constituting an anti-​fragmentation tool or “an international common law”. Some rules of jus cogens are also considered as having a constitutional character in themselves.3 The idea of “constitutionalisation” has been explored in the context of IEcL, especially in the

1 To our knowledge, the only study that can be found on the same subject is from Thomas Cottier “Improving Compliance: Jus Cogens and International Economic Law”(2015) 46 Netherlands Yearbook of International Law 329. A study on a specific branch of the IEcL can also be found in the same issue of the Netherlands Yearbook of International Law, Valentina Vadi, “Jus cogens in International Investment Law and Arbitration” (2015) Netherlands Yearbook of International Law 357. 2 See Erika De Wet “The Emergence of International and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order” (2006) 19 Leiden Journal of International Law 614. 3 Jean d’Aspremont “Jus Cogens as a Social Construct Without Pedigree” (2015) 46 Netherlands Yearbook of International Law 85, at 92–​93. On the constitutionalisation of international law, see Anne Peters “Compensatory Constitutionalism: the Function and Potential of Fundamental International Norms and Structures” (2006) 19 Leiden Journal of International Law 579; Jan Klabbers “Setting the Scene” in Jan Klabbers, Anne Peters and Geir Ulfstein (eds.) The Constitutionalization of International Law (Oxford, 2009).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_020

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branch of international trade law.4 For some authors, IEcL theory supports the concept of hierarchy in international law, through the emerging doctrines of multi-​layered or multilevel governance.5 For these authors, IEcL contributes, in manifold ways and through different schools of thought, to the process of constitutionalisation of international law.6 It is therefore surprising, to say the least, that few studies have been carried out on the relationship between these two dynamics of “constitutionalisation” of international law. Such a vacuum is even more disconcerting given that IEcL has been one of the main drivers of jus cogens in international law. The prohibition of slavery, one of the first recognized norms of jus cogens in international law, was a reaction to what was still the permissible trade in human beings and forced labour. More recently, it is thanks to trade and investment restrictions in the field of international economic law that the struggle for the abolition of apartheid in South Africa was won, thus preserving another value protected by jus cogens.7 The second observation is the difficulty of reconciling two concepts of which the exact meaning and content are far from being fixed in legal scholarship. For each of the concepts, there are almost as many approaches as there are authors; one is faced with containers that each fills according to the use one intends to make of them. Concerning jus cogens, if its existence was sometimes challenged after its codification and inclusion in the 1969 Vienna Convention on the Law of Treaties (“vclt”),8 its reality in international law is no longer called into question. Both doctrine and case law have come to recognize the existence of “peremptory norms of general international law […] accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted”, according to the well-​known formula of Article 53 of the vclt.9 Even the very cautious International Court of Justice (“icj”), after a 4 See Klabbers (above note 3), at 20; Joel P. Trachtman “The International Economic Law Revolution” (1996) 17 University of Pennsylvania Journal of International Economic Law 33, at 35–​37. 5 See Ernst-​Ulrich Petersmann International Economic Law in the 21st Century: Constitutional Pluralism and Multilevel Governance of Interdependent Public Goods (Hart, 2012). 6 Cottier (above note 1), at 335. 7 Id., at 334–​335. 8 1969 Vienna Convention on the Law of Treaties. For a presentation of the historical evolution of the concept of jus cogens up to its enshrinement in the Vienna Convention, see First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n4/​693) (2016), at paras. 18-​41; Dinah Shelton “Sherlock Holmes and the Mystery of Jus Cogens”(2015) 46 Netherlands Yearbook of International Law23, at 24–​30. 9 Identical wording is found in Article 53 of the 1982 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. The latter Convention has not yet entered into force.

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long hesitation in admitting the existence of the concept,10 as well as using it without daring to name it expressly, has finally recognized it expressis verbis.11 Less concerned with the ramifications of the concept, many other international courts and tribunals had already recognized and applied the concept.12 This recognition is not only the work of judges. States have expressly referred to the jus cogens status of certain standards, both in their pleadings before these international courts and at meetings of certain international organisations such as the United Nations (UN), the International Labour Organisation (ilo), the African Union (au), the Council of Europe, and the Organisation of American States (oas).13 The international organisations themselves do not hesitate to refer to the concept in various frameworks.14 In fact, since the end of the twentieth century, there has been a remarkable increase in the use of jus cogens arguments in international legal discourse: the box is no longer empty 10

11

12

13 14

See Pierre-​Marie Dupuy “Le Jus Cogens, les mots et les choses : Où en est le droit impératif devant la CIJ près d’un demi-​siècle après sa proclamation” in Enzo Cannizaro (ed.), The Present and Future of Jus Cogens (Sapienza Università, 2015), at 104–​109; First Tladi Report (above note 8), at para. 46. See among others Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, icj Reports 2006, p. 31, at para. 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), icj Reports 2007, p. 110, at para. 161; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), icj Reports 2015, p. 47, at para. 87. For the International Criminal Tribunal for the former Yugoslavia (icty), see for example Prosecutor v. Kupreškić and others, Judgement of icty Trial Chamber, 14 January 2000, at paras. 519–​520; Prosecutor v. Furundžija, Judgement of icty Trial Chamber,10 December 1998, at paras. 153–​154. For the International Criminal Tribunal for the Rwanda (ictr), see for example, Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgement of ictr Trial Chamber ii, 21 May 1999, at para. 88. For the jurisprudence of the Inter-​American Court Court of Human Right (IACtHR), see for example Mendoza et al. v. Argentina, Merits, Reparation and Costs, Judgement of the IACtHR, 14 May 2013, at para. 199; Río Negro Massacres v. Guatemala, Preliminary Objections, Merits, Reparations and Costs, Judgement of the IACtHR, 4 September 2012, at paras. 114 and 227; Huilca Tcse v. Peru, Merits, Reparations and Costs, Judgement of the IACtHR, 26 August 2011,Serie C, No. 229. For the European Court of Human Right (ECtHR), see for example, Al-​Adsani v. The United Kingdom, Judgement of the Grand Chamber of the ECtHR, 21 November 2001, at paras. 60-​67; Naït-​Liman v. Switzerland, application, Judgement of the Grand Chamber of the ECtHR, 15 March 2018, at para. 129. For the Court of Justice of European Union (cjeu), see for example, Joined Cases C-​402/​05 P and C-​415/​05 P, Yassin Abdullah Kadi and Al Barakaat International Foundationv.Council of the European UnionandCommission of the European Communities, Judgement of the Grand Chamber of the cjeu, 3 September 2008, at paras. 280, 287. See First Tladi Report (above note 8), at paras. 48-​49. Id., at para. 48.

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and the car seems to leave the garage very often, even if the result before some tribunals might seem disappointing or frustrating.15 This increase in the invocation of jus cogens has also led to increased confusion about the concept, the modalities of identification of peremptory norms, and their effects in international law. Indeed, given the lack of clarity on the properties of jus cogens norms in Article 53 of the vclt, and the division of international courts and tribunals on its legal effects,16 international legal scholars have tried to define them with extraordinary fertility and unequalled creativity. Ulk Linderfalk thus identifies no less than thirteen functions assigned to jus cogens norms in international law,17 and forty-​six norms identified as belonging to jus cogens.18 Few lawyers would seem prepared to go as far as to argue, questionably, that all international crimes or all human rights standards have the status of jus cogens, for the mere reason of their categorisation as such.19 This would make the list of jus cogens norms in international law even longer, much more than the modest list of eight norms identified by the International Law Commission (ilc) and its Special Rapporteur on the issue.20 Beyond the effects expressly stipulated in Article 53 of the Vienna Convention, 15

16

17 18 19 20

We take up here the famous metaphors of Georges Abi-​Saab and Ian Brownlie on jus cogens, described respectively as an “empty box” or “a car that has never left the garage”. Georges Abi-​Saab “The Third World and the Future of the International Legal Order” (1973) 29 Revue Egyptienne de Droit International 53, Ian Brownlie, “Comment” in Antonio Cassese, Joseph Weiler (eds.) Change and Stability in International Law-​Making (Walter de Gruyter, 1988), at 110. The dynamic and relatively broad conception of the effects of the peremptory norms of the icty and the Inter-​American Court of Human Rights can be contrasted here with the narrower and more cautious approach of the icj and the European Court of Human Rights. See Stefan Kadelbach “Genesis, Function and Identification of Jus Cogens Norms” (2015) 46 Netherlands Yearbook of International Law 147, at 153–​160; Dupuy (above note 10), at 101–​103; Shelton (above note 8), at 38–​39. Ulk Linderfalk, Understanding Jus Cogens in International Law and International Discourse (Edward Elgar, 2020), at 11–​13. Id, at 15–​18. See for example, Alexander Orakhelashvili, “Audience and Authority-​The Merit of the Doctrine of Jus Cogens”,(2015) 46 Netherlands Yearbook of International Law 115, at 119–​122. The list indicated as non-​exhaustive and attached as an annex to the draft Conclusions includes: the prohibition of aggression, the prohibition of genocide; the prohibition of crimes against humanity; the basic rules of international humanitarian law; the prohibition of racial discrimination and apartheid; the prohibition of slavery; the prohibition of torture, and the right of self-​determination. See Annex Draft Conclusions on Peremptory Norms of General International Law ( Jus Cogens), Report of the International Law, Seventy-​First Session, (A/​74/​10) (2019). See for the methodology for identifying these peremptory norms, Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens), (A/​c n.4/​727), (2019), at paras. 56-​121.

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jus cogens has undergone a veritable “metamorphosis”,21 turning out to be the “core treasure of the international community”, in the words of Christian Tomuschat,22 producing effects that seem to extend far beyond the law of treaties while fulfilling multiple functions in legal discourse. Everything, or almost everything, can now be done with jus cogens!23 As has rightly been written, one’s approach to jus cogens and its effects depends closely on one’s conception of international law.24 It is a question of using these norms “d’essence civilisatrice”25 to ensure optimal respect for “the fundamental values of the international law community”,26 in particular, to “moralize” or “civilise” branches of international law that had hitherto seemed to develop (too) autonomously like the IEcL.27 Although its roots go back to ancient civilization and emerged as a topic of law in the mid-​20th century, the meaning of “international economic law”, is also still unsettled.28 Here again, there are almost as many definitions as there are authors on the subject. Indeed, the intersection that can be searched for between each of the words in its title (International, Economic, and Law) can prove to be particularly broad. It may include, in particular, trade and investment law, economic integration law, private international law, business

21 22 23

24 25 26

27 28

Karl Zemanek “The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?” in Enzo Cannizzaro (ed.) The Law of Treaties beyond the Vienna Convention (Oxford, 2011). Christian Tomuschat “The Security Council and Jus Cogens” in Cannizzaro (above note 10), at 27. See Ulk Linderfalk “All the Things You Can Do with Jus Cogens –​a Pragmatic Approach to Legal Language” (2013) 56 German Yearbook of International Law 351; Joe Verhoeven “Sur les ‘bons’ et les ‘mauvais’ emplois du Jus Cogens” (2008) 5 Annuario Brasileiro de Direito Internacional 133; Linderfalk (above note 17), at 75–​78; d’Aspremont (above note 3), at 93–​96. See Ulk Linderfalk “Understanding the Jus Cogens Debate: the Pervasive Influence of Legal Positivism and Legal Idealism” (2015) 46 Netherlands Yearbook of International Law 51. Robert Kolb “Conflits entre normes de Jus Cogens” in Nicolas Angelet et al. (eds.) Droit du pouvoir, pouvoir du droit: Mélanges offerts à Jean Salmon (Bruylant, 2007), at 482. This idea, formulated by the ilc’s Special Rapporteur on jus cogens in his first report (Draft conclusion 3.2), gave rise to debates both within the Commission and in the Sixth Committee of the United Nations General Assembly. See First Tladi Report (above note 8), at para 74.; Second Report of the Special Rapporteur (Dire Tladi) on jus cogens (A/​ cn.4/​706) (2017), at paras. 7-​30. See, for such a plea for restructuring international law in the light of jus cogens, Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006), at 248–​254. For a historical presentation, see Steve Charnovitz “The Field of International Economic Law” (2014) 17 Journal of International Economic Law 607.

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regulatory law, financial law, tax law, intellectual property law, development law …29 Limiting ourselves to the field of public international law and relying on the approach generally followed in the relevant textbooks, IEcL in this study can be limited to three areas: international trade law (more specifically the law of the World Trade Organization), international investment arbitration, and the law of international financial institutions. Be that as it may, there is a kind of apprehension, a reservation of the class of public international lawyers towards international economic law, which at least partly justifies the present study. Donald McRae explains this well, noting that it relates to the way in which trade law and investment law are viewed. The public international law project has always been perceived as one of social improvement –​making a better world. […] International economic law does not fit so well into the traditional public international lawyer’s perception of improving the world. […] It was almost seen as an affront that a discipline that at best is amoral might compare itself to a field such as human rights, which is all about core or fundamental values. […] There is, then, a qualitative difference between the way that international economic law is perceived and the way that human rights law or environmental law is perceived. […] the criticism levelled at international economic law is not about whether it is binding. It is treaty law and it is binding. The debate is more about whether it should exist!30 On the other hand, international economic law specialists, both theorists and practitioners, have denounced a “pronounced strabismus” towards investment

29 30

Id., at 623. Donald McRae “International Economic Law and Public International Law: the Past and the Future” (2014) 17 Journal of International Economic Law 627, at 632–​633. See for specific criticisms, addressed to the international financial institutions Paul Clements “Multilateral Development Banks and the International Monetary Fund” in John Linarelli (ed.) Research Handbook on Global Justice and International Economic Law (Edward Elgard, 2013), at 135. For specific criticisms to international investment law Bhupinder S. Chimni “Critical Theory of International Economic Law: a Third World Approach to International Law (TWAIL) Perspective” in John Linarelli (ed.) Research Handbook on Global Justice and International Economic Law (Edward Elgard, 2013), at 262; Frank J. Garcia Lindita Ciko, Apurv Gaurav, Kirrin Hough “Reforming the International Investment Regime: Lessons from Trade Law” (2015) 18 Journal of International Economic Law 861, at 862, 868–​872, 875.

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and trade.31 In the same way, dispute settlement in IEcL seems to not fit into a public international law paradigm.32 This is, therefore, one of the main interests of this study: jus cogens might serve to “correct” what might be seen as an imbalance in current international law and potential tensions with IEcL. Illuminating the trajectory of jus cogens in IEcL is important for the future of the field, as it can reinforce the perceived legitimacy of international trade law, international investment law and the law of international financial institutions. By attempting to subject international economic relations to jus cogens, international lawyers, whether theorists or practitioners, are thus trying to place the ideal of justice at the heart of this branch of international law; the hope that IEcL, as well as all other branches of international law, can be driven by justice and values other than the sole interests of the players in the economic game.33 Moreover, a study of the interrelationship between jus cogens and IEcL can also contribute to further clarifying jus cogens not only in international economic governance but also in other areas of international law. As said by an author, “in fact, ideas can cross-​ pollinate among fields of law”.34

31

Alain Pellet “Notes sur la ‘fragmentation’ du droit international: Droit des investissements internationaux et droits de l’homme” in Denis Alland, Vincent Chetail, Olivier de Frouville and Jorge E Viñuales (eds.) Unity and Diversity of International Law: Essays in Honour of Professor Pierre-​Marie Dupuy (Martinus/​Nijhoff, 2014), at 770. For specific criticisms relating to international trade law, see for example Richard B. Stewart, Michelle Ratton and Sanchez Badin “The World Trade Organization and Global Administrative Law” in Christian Joerges and Ernst-​ Ulrich Petersmann (eds.) Constitutionalism, Multilevel Trade Governance and International Economic Law (Hart, 2011), 457; Caroline Dommen “Safeguarding the Legitimacy of the Multilateral Trading System: the Role of Human Rights Law” in Frederick M. Abott, Christine Breining-​Kaufmann and Thomas Cottier (eds.) International trade and Human Rights: Foundations and Conceptual Issues (University of Michigan, 2006), at 125; Steven R. Ratner The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (Oxford, 2015), at 340–​347. 32 McRae (above note 30), at 634–​ 635; Ernst-​ Ulrich Petersmann “Human Rights, International Economic Law and ‘Constitutional Justice’ ” (2008) 19 European Journal of International Law 769, at 795, 797; Ernst-​Ulrich Petersmann “Judging Judges: From ‘Principal-​Agent Theory’ to ‘Constitutional Justice’ in Multilevel ‘Judicial Governance’ of Economic Cooperation among Citizens” (2008) 11 Journal of International Economic Law 827, at 883; Chimni (above note 30) at 258; Ratner (above note 31), at 373–​379. 33 See Garcia, Ciko, Apury, Guarav and Hough (above note 30), at 863; Pia Acconci “The Integration of Non-​Investment Concerns as an Opportunity for the Modernization of International Investment Law: is a Multilateral Approach Desirable” in Giorgio Sacerdoti, Pia Acconci, Mara Valenti and Anna de Luca General Interests of Host States in International Investment Law (Cambridge, 2014), at 165–​167. 34 Vadi (above note 1), at 361.

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Jus cogens would thus make it possible to solve several problems posed by IEcL for public international lawyers. Subjecting the various branches of international law to the fundamental rules of the international legal order would help to ensure the unity of this law. Specifically, in the face of the fragmentation and contradiction that the self-​contained regimes of IEcL could bring to bear on international law, jus cogens can ensure the coherence and cohesion of the whole.35 According to that logic, jus cogens would set outer limits to the degree to which IEcL and its specific regimes may consider themselves to be self-​contained. On the basis and conclusions of previous studies on jus cogens, it has been pointed out that further studies should focus not so much on the theoretical acceptance of jus cogens, but rather on the requirements for accepting a norm as jus cogens as well as its functions and legal consequences.36 It is within this latter perspective that the present study is inscribing itself. It leaves aside the debate on the existence and identification of jus cogens norms to focus essentially on their possible legal functions and consequences in the various fields of international economic law as identified above. It is a reflection on how to reconcile economic interests, rightly or wrongly regarded as the best promoters of development, with the respect for peremptory norms of international law, perceived as protecting international public policy. The next section of this contribution will, therefore, focus on the so-​called “classic” effects of jus cogens in IEcL. As a branch with multiple ramifications of the tree that is international law, IEcL is indeed irrigated by the same sap as the whole discipline, as these “classical effects” illustrate. Then, in the third section, the contribution will explore the interior of the three mentioned subdivisions of IEcL, to observe the specific dynamics of peremptory norms of international law within that field. 2

International Economic Law as Part of the International Legal System: the Realization of the Classical Effects of Jus Cogens

Far from being a patchwork of self-​contained regimes, IEcL is part of the international legal order, and therefore shares some of its characteristics.37 IEcL is 35 36 37

See Tomuschat (above note 22), at 25–​26; Maarten den Heijer and Harmen van der Wilt “Jus Cogens and the Humanization and Fragmentation of International Law” (2015) 46 Netherlands Yearbook of International Law 3, at 4, 6. Heijer and van der Wilt (above note 35), at 20. See Pierre-​Marie Dupuy “Relationship of International Economic Law to other Areas of Public International Law” in Thomas Cottier and Krista Nadakavukaren Schefer (eds.) Elgar Encyclopedia of International Economic Law (Cheltenham/​Northampton, 2017), at 6; Pellet (above note 31), at 762.

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part of public international law and not something, at least in terms of the effects of jus cogens, that should be seen as potentially or in practice separate or distinct from it. It should be thus noted that in IEcL, as in other branches of international law, the consequences of the violation of jus cogens seem modest. The main consequence of the violation of a peremptory norm of international law, the only one enshrined in the vclt, is the nullity of any contrary agreement. As it has rightly been pointed out, under articles 53 and 64 vcltjus cogens has a purely preventive function and serves to impede unlawful treaty stipulations from becoming operative. The vclt itself operates exclusively within the province of the law of treaties and does not apply beyond that. Above all, it is a question of limiting the legislative power of the subjects of the international legal order: no other sanctions are imposed and major complications are avoided.38 The consequences of jus cogens, however, were very quickly considered beyond the scope of the vclt.39 It is therefore now accepted that the invalidity stipulated in articles 53 and 64 of the vclt applies not only to international conventions but also to unilateral acts and customary norms that are contrary to norms of jus cogens.40 This is the first aspect that will be examined in this part of the contribution. The other major question dividing international legal scholars, on the effects of juscogens on the law of international responsibility will for the time being be left aside and examined in Part ii dealing with the specific effects of peremptory norms in IEcL. This part will also examine the impact, in international economic law, of peremptory norms on the conditions for the exercise of the jurisdictional function. This is what Joe Verhoeven has called “judicial jus cogens”. He identifies mainly two of them in the international legal order, which shall be examined in turn. First, he notes that, while the public policy does not as such attribute any jurisdiction to one judge rather than another, it may limit the jurisdiction that is granted to certain courts. Secondly, public policy may, where appropriate, alter the respective roles of the judge and the parties in the conduct of the trial, as reflected in the maxim jura novit curia.41

38 39 40

41

Tomuschat (above note 22), at 21, 34; Linderfalk (above note 17), at 23–​24. See Giorgio Gaja “Jus cogens beyond the Vienna Convention” (1981) 172 Collected Courses of the Hague Academy of International Law 271, at 271–​316; Linderfalk (above note 17), at 26–​28. See Draft Conclusions 10, 14, 15 and 17 of the Draft Conclusions on Peremptory Norms (above note 20); Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens), (A/​c n.4/​714/​Corr.1) (2018), at paras. 30-​44, 137-​159. Verhoeven (above note 23), at 143.

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The Invalidity in IEcL of Legal Acts/​Instruments Contrary to Jus Cogens This section will examine successively the impact of jus cogens on contrary norms of IEcL arising from treaty acts, unilateral acts and customary international law. On the first point, the legal consequence most synonymous with the jus cogens status of a norm in international law is the invalidity of the relevant treaties. It is the “nucleus of the concept of peremptory norms as expressed in the Vienna Convention”.42 Thus, States cannot conclude agreements within the scope of IEcL that would allow them to violate peremptory norms of international law. Such agreements would be void, whether concluded between States, between States and international organizations, or only between the latter. Indeed, international economic institutions, no less than other international organizations or States, are subject to general international law43 and therefore bound by jus cogens, whatever their objectives or powers. This submission of international economic agreements, including bilateral investment treaties (bit s), to general international law and jus cogens is not contested by international adjudicators, as recalled by an arbitral tribunal in a case brought before the International Centre for Settlement of Investment Disputes (icsid). The arbitral tribunal in Urbaser et al. v. Argentina, stated that the international law that any arbitral tribunal must apply in addition to the applicable law chosen by the parties, “necessarily include all such rules which according to their self-​determined scope of application cover the legal issue arising in the particular case”.44 In practical terms, says the Tribunal, an 2.1

illustration is given by peremptory norms of general international law (ius cogens) to the extent they may be of interest in an investment matter. If so, such norms must certainly prevail over any contrary provision of the BIT, as per the express statement in Article 53 of the Vienna Convention.45

42 Gaja (above note 39), at 282. 43 See Interpretation of the Agreements of 25 March 1951 between the who and Egypt, Advisory Opinion, icj Reports 1980, p. 73, at para 37. 44 Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, Award of the International Centre for Settlement of Investment Disputes, icsid Case No arb/​07/​26, award of 8 December 2016, at para. 1202. 45 Id., at para. 1203. See also United Utilities (Tallinn) B.V. and Aktsiaselts Tallinna Vesi v. Republic of Estonia, Award of the International Centre for Settlement of Investment Disputes, 21 June 2019, at para. 509.

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There can only be autonomy of will or legal liberalism within the general limits of the international community as a whole, i.e. within the higher ethical imperatives and minimum solidarity requirements of that community.46 Thus, an economic transaction that contemplated or facilitated genocide or torture, for instance, would be void. So, if the Agreement on Trade-​Related Aspects of Intellectual Property Rights (“trips”) or an amendment to it authorized slave-​ trading among World Trade Organisation (“wto”) members, for example, it would be void ab initio.47 This is a total invalidity, which affects not only the contrary provision but the entire treaty. Article 53 vclt considers the violation of a peremptory norm of international law sufficiently serious to vitiate the entire treaty instrument without the possibility of preserving its non-​ contentious provisions. This is because of the importance of the values protected by jus cogens norms: jus cogens norms “are of so fundamental a character that, when parties conclude a treaty” in conflict with an already existing norm of jus cogens, “the treaty must be considered totally invalid”.48 It is thus both a sanction and a dissuasive means of ensuring respect for the fundamental values protected by jus cogens. It is always open to the parties to an international convention/​agreement on economic relations, to revise if they so wish, the invalid treaty to bring it into conformity with jus cogens. A particular difficulty may arise in IEcL in respect of the validity of an agreement whose provisions in themselves do not violate a peremptory norm of international law, but whose conclusion would constitute such a violation. This is the issue raised by the Reciprocal Liberalization Measures Agreement between the European Community and the Kingdom of Morocco of 2006.49 The Polisario Front sought the annulment of this Agreement before the Court of Justice of the European Union (cjeu) on the grounds that the 46 47

48 49

Pierre Lalive “Ordre public transnational (ou réellement international) et arbitrage international” 1986 Revue de l’Arbitrage 329. Frederick M. Abott “TRIPS and Human Rights: Preliminary Reflections” in Abott, Breining-​Kaufmann and Cottier (above note 31), at 158; Jeroen Denkers and Nicola Jägers “The World Trade Organization: An Obstacle to Enforcing Human Rights Obligations?” in Jan Wouters, Eva Brems, Stefaan Smis and Pierre Schmitt (eds.) Accountability for Human Rights Violations by International Organisations (Intersentia, 2010), at 480. Third Tladi Report (above note 40), at para. 38. See European Council Regulation No 2012/​249 of 8 March 2012 on the Conclusion of the Reciprocal Liberalization Measures Agreement between the European Community and the Kingdom of Morocco, Official Journal of the European Union, L 141/​1, 26 May 2009.

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Agreement, which could potentially include the waters of Western Sahara, was a violation of the Saharawi people’s right to self-​determination, a norm of jus cogens.50 While the cjeu opted for a conciliatory interpretation that would preserve the treaty while reaffirming the peremptory nature of the right to self-​determination, “one of the essential principles of international law”,51 it is, however, questionable what the solution would have been if such conciliation between the peremptory norm and the economic agreement was impossible. It is this position –​an irreducible contradiction between the peremptory norm of self-​determination and a subsequent economic agreement –​that was defended by Portugal in the East Timor case before the icj.52 Here again, the court seized did not decide the question. In application of the Monetary Gold principle,53 the icj, while recalling the “erga omnes character” of the right to self-​determination, considered that it could not render a decision on this question in the absence of the consent of Indonesia, whose conduct was, in its view, at the heart of the dispute. In such a case, where a conciliation between the peremptory norm and the economic agreement is impossible, it should be accepted that, even though the provisions contained therein do not violate jus cogens norms, such an agreement should be considered null and void. Indeed, to allow a State which violates a peremptory norm of international law to subsequently conclude valid economic agreements would, in fact, result in allowing it to benefit from the violation, and for the other party to such an agreement to recognise an illegal situation, in violation of the obligation of non-​recognition incumbent upon it and stipulated in Article 41 (2) of the Articles on the Responsibility of States for Internationally Wrongful Acts.54 In line with the solution in the Articles on State Responsibility, the 2019 Draft Conclusions provide that States are obliged to “eliminate as far as possible the consequences of any act

50 51 52 53 54

Council of the European Union v Front Populaire pour la Libération de la Saguia-​el-​Hamra et du Rio de Oro (Front Polisario), Judgement of the Grand Chamber of the European Court of Justice, 21 December 2016. Id., at para. 88. Case Concerning East Timor (Portugal v. Australia),icj Reports 1995, p. 90. Case of the Monetary Gold Removed from Rome in 1943 (Preliminary Question), icj Reports 1954, p. 19. Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001): “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40 [serious breach of an obligation arising under a peremptory norm of general international law], nor render aid or assistance in maintaining that situation”.

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performed in reliance on any provision of the treaty which conflicts with” a jus cogens norm.55 This excludes both concluding an economic agreement on the “fruits” of the violation and recognizing the consequences of the violation of a peremptory norm by means of a unilateral act with economic effect. On the second point, –​ i.e.the impact of jus cogens on contrary norms of IEcL arising from a unilateral act –​it is no longer disputed that in IEcL, as in any other branch of international law, unilateral acts of subjects of international law can be a source of obligations. It is therefore quite logical that the ilc has recognized that a unilateral act that conflicts with a peremptory norm of international law is void.56 Thus, a unilateral act of the wto, or of an international financial institution or a State that creates rights or obligations inconsistent with jus cogens amounts to a derogation and is, thus, not permitted. Similarly, a reservation to an international trade or investment agreement shall not be considered valid if it would result in permitting its author to violate a peremptory norm, such as, for example, the implementation in economic matters of a policy of racial discrimination or apartheid. It is clear that invalidating a unilateral act that violates a peremptory norm of international law is only appropriate if that act has created an obligation vis-​à-​vis another State or international organisation, and consequently a right for the latter, like the recognition of a territorial acquisition achieved through the use of force.57 55

56 57

Draft Conclusions 12(1)(a) of the Draft Conclusions on Peremptory Norms (above note 20). This hypothesis poses a different problem from the one envisaged by the icj in 2012, which dealt with the link between the obligation of reparation and the peremptory norm prohibiting genocide. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), icj Reports 2012, p. 99. The obligation of cessation seems to have a closer link with the primary peremptory norm than the obligation of reparation, whether the beneficiary is a State or a private person. As Enzo Cannizzaro rightly explains, “If jus cogens rules are established for the protection of fundamental interests of the international community, it is consequential that the international community has a fundamental interest to secure the cessation of the breach. Since the failure to perform the obligation of cessation necessarily deprives the primary rule of its effectiveness, it is unimaginable that the obligation to cease a serious breach of jus cogens could be dispensed with, through a treaty or through unilateral waive. Not necessarily the same rationale applies also to the obligation of reparation. This obligation, although erga omnes, is not unconditional but, (…) is established in the interest of the injured State or of the beneficiaries of the breached primary obligation. Therefore, the obligation of reparation is not an indissoluble corollary of the primary rule breached, in the sense that its failure does not necessarily amount to a deprivation of the effectiveness of the primary rule breached”. Enzo Cannizzaro “On the Special Consequences of a Serious Beach of Obligations Arising out of Peremptory Rules of International Law” in Cannizzaro (above note 10), at 142–​143. Draft Conclusions 15 and 16 of the Draft Conclusions on Peremptory Norms (above note 20); Third Tladi Report (above note 40), at paras. 146-​159. Zemanek (above note 21), at 394–​395.

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On the third point (that is the impact of jus cogens on contrary norms of IEcL arising from customary international law), there are doubts about the “invalidity” of a customary norm of IEcL contrary to a norm of jus cogens. Such a reservation is not limited to international economic law alone, but to the possibility of having in general international law a customary norm that is contrary to jus cogens. If it is accepted, as stated in Article 53 vclt, that the jus cogens norm is a norm of general international law, it is difficult to conceive that it could emerge and continue to exist alongside a contrary practice that the international community as a whole considers to be law. Either a contrary customary norm exists or remains (the jus cogens superveniens hypothesis), in which case the jus cogens norm could not come into existence precisely because it lacks the opinio cogentis (the acceptance by the community of States as a whole that no derogation is possible) or the existence of the jus cogentis is a sign that within the international community the old customary norm has ceased to exist precisely because it is contrary to the emerging peremptory norm. Similarly, if a general practice later emerges that is accepted as the law and is contrary to an existing jus cogens norm, it should be concluded that the old jus cogens norm has lost its peremptory nature, which is a condition for a contrary practice to acquire customary status.58 This seems to be what is enshrined in the Draft Conclusions of the International Law Commission.59 One of the difficulties not resolved by the vclt concerns the procedure for invalidating a legal act contrary to a peremptory norm. Article 65 of that Convention provides for parties seeking to invalidate a treaty to notify other parties giving a specified notice period, which, if at the expiry of which there is no objection, the invalidation will take effect. If there is an objection, Article 65 also provides for an amicable resolution of the dispute. If there is no amicable solution under Article 65, Article 66 provides that any of the parties may submit the dispute on the interpretation or application of Articles 53 and 64 to the icj, unless they agree to resort to arbitration. This system has many shortcomings. Firstly, the procedure put in place covers only international conventions, excluding unilateral acts that had not been envisaged under the vclt. So what should the procedure be if a State considers, for example, that the resolution 58

59

See for the defence of a possible contradiction between a jus cogens norm and a customary norm, see Thomas Kleinlein “Jus Cogens as the ‘Highest Law’? Peremptory Norms and Legal Hierarchies” (2015) 46 Netherlands Yearbook of International Law 173, at 187–​189. For an analysis along the same lines as ours, see Zemanek (above note 21), at 396. See Draft Conclusion 14 of the Draft Conclusions on Peremptory Norms (above note 20). This is despite the Special Rapporteur’s analysis, which admitted the possibility of conflict between a customary norm and a peremptory norm. See Tladi Third report (above note 40), at paras. 138-​145.

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of an international financial institution violates a peremptory norm? Secondly, Article 66 does not indicate who may refer the matter to the icj to examine the validity of the treaty. Can a third State, bring a case before the Court because one or more provisions of a bit between two States appear to it to be contrary to a norm of jus cogens, and thus render the treaty invalid? Similarly, can a State not party to the vclt resort to the procedure of Article 66, including against a State that is not a party to the vclt? Unfortunately, the Vienna Convention does not settle this question, and it is difficult to give a definitive answer, since Article 66 and the procedure it prescribes are not themselves jus cogens or even customary international law, as Special Rapporteur Tladi has pointed out.60 To overcome this difficulty, the Special Rapporteur suggested as a recommended practice, “that, even in cases where the Vienna Convention does not apply because one or both of the States are not party to the Vienna Convention, the procedure in article 66 (a) should be applicable”.61 Such a proposal, however satisfactory it may be from an intellectual point of view, will raise many difficulties, particularly concerning its operationalization. Firstly, in this case, would it be obligatory for States to have recourse to the procedure under Article 66 (a) vclt? The proposed solution would only solve the problem raised if States were obliged to submit their dispute to the procedure of Article 66 (a). Indeed, as the law stands at present, there is nothing to prevent States not party to the Vienna Convention from concluding a specific agreement to refer such a dispute to the icj, under Article 36 of the Statute of the Court, or to an arbitral tribunal to be constituted for the case. While this, therefore, remains an option, the Special Rapporteur’s proposal adds nothing to the current state of international law. Secondly, Draft Conclusion 21 on jus cogens submitted to the ilc states that jus cogens has no impact on the rules relating to the jurisdiction of the icj or any other dispute settlement mechanism.62 The icj, therefore, finds itself in the same situation as the specific dispute settlement mechanisms of IEcL (hereinafter referred to as “IEcL adjudicators” or “adjudicators of international economic disputes”)63: jus cogens has a marginal effect on their jurisdiction.64 60 61 62 63

64

Third Tladi Report (above note 40), at para. 51. See also, Verhoeven (above note 23), at 140–​142; Gaja (above note 39), at 282–​283. Third Tladi Report (above note 40), at para. 52. See Draft conclusion 21(5) of the Draft Conclusions on the Peremptory Norms (above note 20). See for use of this catch-​all formula, Laurence Boisson de Chazournes, Sarah Heathcote and Gavan Griffith “The Role of the New International Adjudicator” (2001) 95 Proceedings of the Annual Meeting: American Society of International Law 129; Cesare P. R. Romano, Karen J. Alter, and Yuval Shany (eds.) The Oxford Handbook of International Adjudication (Oxford, 2013). On dispute settlement see in this volume Michael Wood “Unilateral Invocation of Jus Cogens” (Chapter 14).

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2.2 Limited Effects of Jus Cogens on the Jurisdiction of IEcL Adjudicators The principle invoked by the icj in its judgment of 30 June 1995,65 was clearly affirmed by the Court in 2006: The Court observes, however, as it has already had occasion to emphasize, that “the erga omnes character of a norm and the rule of consent to jurisdiction are two different things” […], and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute. The same applies to the relationship between peremptory norms of general international law (jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties.66 The icj, therefore, does not consider itself in a position to take up a case of violation of a peremptory norm if the consensual basis for its jurisdiction is not established. The Court’s position is hardly open to criticism. Indeed, an international court cannot be criticized for giving precedence to the rule of consent to its jurisdiction enshrined in its statute over a rule of substance, however essential it may be for the international community as a whole. For any international court or tribunal, the text which founds and organizes its jurisdiction is indeed imperative for it and it cannot derogate from it.67 There can be no doubt that the principle thus established is also applicable to international courts and tribunals dealing specifically with economic disputes: they cannot grant themselves powers that States have not wanted to confer on them. This is reflected,

65 66 67

East Timor case (above note 52), at para. 29. Armed Activities on the Territory of the Congo (above note 11), at para. 64. See also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (above note 11), at para. 147. Dupuy (above note 10), at 113. This is not, however, an imperative of the same kind as jus cogens as has been written. See Robert Kolb Théorie du Ius Cogens international (puf, 2001), at 209–​317. Jus cogens is in fact a norm of general international law accepted by the international community as a whole, and not a conventional rule which is not binding on third States. See Second Tladi Report (above note 26), at paras 40–​89.

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inter alia, in Article 3.2 of the wto Dispute Settlement Understanding (dsu) which stipulates that the wto dispute settlement system “serves to preserve the rights and obligations of Members under the covered agreements”. More specifically, dsu Article 1.1 limits the operation of the dsu to “disputes brought pursuant to the consultation and dispute settlement provisions of the agreements listed in Appendix 1” of the dsu and disputes regarding rights and obligations under the wto Agreement or the dsu. This means that a Panel or the Appellate Body (ab) could not normally treat jus cogens themselves as the basis of a wto claim. Claims can relate only to violations of any of the covered agreements, because that is the purpose for which the consent of the parties to the various wto agreements is limited.68 Consequently, the interpretation and application of jus cogens norms will be performed only to the extent necessary to interpret and apply wto law. A distinction must be made between the question of jurisdiction and the question of applicable law. The fact that a wto Panel may not be seized of an action relating primarily to the violation or interpretation of a peremptory norm of international law is without prejudice to its ability to examine a defence on the merits, based on the existence of an obligation of jus cogens.69 In international investment law also, peremptory norms have no impact on the limits of subject-​matter jurisdiction as defined by the relevant treaty. This was recalled by an arbitral tribunal constituted under the Rules of the United Nations Commission on International Trade Law (uncitral) in Biloune v. Ghana. Responding to a request from the complainant seeking redress for alleged human rights violations, including torture, against him, the tribunal stated that its jurisdiction was limited to foreign investment disputes and that it lacked the competence to address, as an independent cause of action, a claim for human rights violations, even, as in this case, torture, the prohibition of which is a jus cogens norm.70 So far, as noted by Valentina Vadi, the jus cogens claims of investors have not been taken into account by investment arbitral tribunals, a declaration of lack of jurisdiction being the outcomes of

68

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Andrew D. Mitchell “The Legal Basis for using Principles in WTO Disputes” (2007) 10 Journal of International Economic Law 795, at 822–​823; Gabrielle Marceau “The WTO Dispute Settlement and Human Rights” in Abott, Breining-​Kaufmann and Cottier (above note 31), at 187–​190. See 2.3 below. Biloune and Marine Drive Complex Ltd v. Ghana Investments Centre and the Government of Ghana, uncitral, Award on Jurisdiction and Liability, 27 October 1989, at para. 203.

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these disputes. She wonders then what would happen if the specific jus cogens claim was within the jurisdiction of such tribunals, i.e. was not invoked as an independent cause of action, but as a defence on a matter over which the tribunal has jurisdiction.71 In such a case, the tribunal should declare itself to have jurisdiction when the violation of a peremptory norm of international law is not the main cause of action but is raised as a defence to an action over which the arbitral tribunal has substantive jurisdiction. The arbitral tribunal is, as it will be shown,72 competent to apply general international law, including jus cogens, in the settlement of disputes within its jurisdiction. Many States have invoked jus cogens to exclude the jurisdiction of tribunals in international investment disputes. This is an attempt to transpose the effects of public policy in domestic legal orders into the international legal order. Indeed, as explained by Joe Verhoeven,73 in the domestic legal order, the violation of public policy can lead to the lack of jurisdiction of a court, even though invoking a breach of public policy is never sufficient to confer jurisdiction on a court. This is particularly true for arbitration: disputes concerning public policy are generally considered not “arbitrable”. This lack of jurisdiction of arbitral tribunals for public policy matters is itself a matter of public policy, which allows any interested party to invoke it even if the “non-​arbitrability” (“inarbitrabilité” in French) has not been raised before or accepted by the arbitrator. Does such an exception of “non-​arbitrability” exist in IEcL? In principle, there is no dispute which cannot be submitted to an international adjudicator, judge or arbitrator on the ground that it involves jus cogens. The explanation is that, contrary to domestic legal orders, there is not in international law a general or ordinary judge in relation to whom the IEcL adjudicator must be held to be exceptional. Any international adjudicator has jurisdiction under international law as long as the parties concerned have agreed to accept its jurisdiction.74 “Non-​arbitrability” cannot, therefore, have the same meaning in international law as in domestic law. The jurisdiction of the arbitral tribunal is defined by the agreement on the basis of which it has jurisdiction, and the pleas on the merits should not a priori affect its jurisdiction if it is established.Since there is not in principle an “ordinary court” to deal 71 72 73 74

Vadi (above note 1), at 372. See 2.3 below. Verhoeven (above note 23), at 144. See also Laurence Ravillon “Que reste-​t-​il du concept d’inarbitrabilité ?”, in Éric Loquin and Sébastien Manciaux(eds.) L’ordre public et l’arbitrage (LexisNexis, 2014), at 57–​77. Verhoeven (above note 23), at 145.

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with a possible preliminary question raised before the arbitrator, the arbitrator must, if the plea raised is related to the substantive question for which he/​she is competent, examine it. As a result, there is no general category of disputes involving issues of illegality that are “non-​arbitrable”.75 The lack of jurisdiction, if any, of an arbitral tribunal or the wto Dispute Settlement Body (dsb) for an action-​based primarily on alleged violations of peremptory norms is justified, as noted above, by the limits of their respective subject-​matter jurisdiction. It has nothing to do with jus cogens or any “non-​arbitrability” of the related dispute. They would be equally lacking jurisdiction to hear, for example, a claim relating to the delimitation of land and maritime boundaries between two States. However, there is an aspect of the theory of “non-​arbitrability” that seems to subsist before investment arbitral tribunals. In World Duty Free v. Kenya, an icsid tribunal referred to both national and international public policy to decline its jurisdiction: in light of domestic laws and international conventions relating to corruption, in light of decisions taken in the matter by courts and international tribunals, this tribunal is convinced that bribery is contrary to the international public policy of most, if not all states or, to use another formula, to transnational public policy. Thus, claims based on contracts of corruption or on contracts obtained by corruption cannot be upheld by this Arbitral Tribunal.76 According to the logic of this tribunal, an investment can only be protected under the rules of international law if it has been obtained in accordance with the rules prescribed by it, or at least without undermining the fundamental values of the international legal order. Consequently, an investment contract obtained in violation of peremptory norms would be deprived of the protection of international law and would deprive the arbitrator of any basis for jurisdiction. It can be seen as an application of the civil law maxim nemo auditur propriam turpitudinem allegans, no one can invoke his/​her own turpitude. A violation of a norm held to be fundamental cannot give rise to the protection of the “benefits” of this violation by the legal order whose essential values have been violated. If the host State of an investment violates international law in the course of the execution of a contract which is itself unlawful on 75 76

Zachary Douglas “The Plea of Illegality in Investment Treaty Arbitration” (2014) 29 icsid Review 160. World Duty Free Company Limited v. The Republic of Kenya, icsid Case No arb/​00/​7, award of 4 October 2006, para. At 157.

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its basis or formed unlawfully, due to a violation of a peremptory norm, then the tribunal cannot adjudicate upon this violation. Jus cogens, as international public policy, is not invoked to obtain an award of lack of jurisdiction because of the “non-​arbitrable” nature of the dispute, but for the tribunal to waive its jurisdiction for the reason that there is a defect affecting the constitution of the transaction at the origin of the dispute. Jus cogens is, therefore, used in an evasive function, in order to dismiss a legal claim and not, as is the case in the domestic legal order, to prohibit recourse to an alternative means of settling the dispute, such as arbitration.77 Indeed [t]‌his would be tantamount to coming to the assistance of a party that has violated international public policy. The investor is simply unable to assert a claim in investment treaty arbitration by reason of its own misconduct.78 It may, therefore, be inferred from the foregoing that the time of the occurrence of the violation of jus cogens is decisive in determining its effects on the jurisdiction of an arbitral investment tribunal. An agreement concluded as a result of a breach of a peremptory norm or for the purpose of breaching a peremptory norm vitiates the agreement and deprives the proposed investment of any protection: the arbitral tribunal will declare itself as lacking jurisdiction.79 On the other hand, if the alleged breach occurred in the course of the implementation of the agreement, or if jus cogens is invoked as a defence justifying the State’s actions (the State acted to comply with a jus cogens obligation incumbent on it), then the issue is a question for the merits that has no impact on the jurisdiction of the arbitral tribunal.80 Any contrary solution 77 78 79 80

Sébastien Manciaux, “L’ordre public international et l’arbitrage d’investissement” in Éric Loquin, Sébastien Manciaux(above note 73), at 43. Douglas (above note 75), at 180. See also Incesya Vallisoletana SL v. Republic of El Salvador, icsid Case No. arb/​03/​26, award of 2 August 2006, at para. 249: “it is not possible to recognize the existence of rights arising from illegal acts”. Grupo Francisco Hernando Contreras v. Republic of Equatorial Guinea, icsid Case No arb(af)/​12/​2, award on jurisdiction, 4 December 2015, at paras. 258-​264. Oxus Gold v. Uzbekistan Oxus Gold plc v. Republic of Uzbekistan, uncitral, final award, 17 December 2015, at para. 707; Quiborax S.A. and Non Metallic Minerals S.A. v. Plurinational State of Bolivia. icsid Case No. arb/​06/​2, award of 16 September 2015, at para. 129; MNSS B.V. and Recupero Credito Acciaio N.V v. Montenegro,icsid Case No arb(af)/​12/​8), award of 4 May 2016, at para. 214; Copper Mesa Mining Corporation v. Republic of Ecuador, pca No. 2012-​2, award of 15 March 2016, at paras. 5.54–​5.66; Gustav F W Hamester GmbH & Co KG v. Republic of Ghana, icsid Case No. arb/​07/​24 (Germany/​Ghana bit), Award of 18 June 2010, at para. 127; Phoenix Action, Ltd. v. The Czech Republic, icsid Case No. arb/​ 06/​5, award of 15 April 2009, at para. 78. See Patrick Jacob, Franck Latty and Arnaud de

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would result in the arbitral tribunal losing jurisdiction by an allegation of a violation or risk of violation of jus cogens without the possibility for the arbitral tribunal to examine the reality and plausibility of the argument. Jus cogens would then be transformed into an instrument of judicial strategy that could easily remove the jurisdiction of the international adjudicator and deprive the other party of the justice to which it is entitled. By retaining its jurisdiction, the international adjudicator will be able to assess the facts and the relevance of the alleged peremptory norm in the exercise of its jurisdictional powers. The Integration of Jus Cogens in the Office of the International Adjudicator in IEcL In domestic legal orders, the judge plays an essential role in the preservation and protection of public policy. As seen, in the absence of an “ordinary judge” in the international legal order, the protection of international public policy and jus cogens does not fall to a specific judge. While Article 66 vclt confers an important role on the icj, this role remains subject to the Court’s jurisdictional rules, which has reduced it to virtual non-​existence in practice. To date, neither the icj nor any arbitral tribunal has been seized of proceedings under article 66 vclt. Nevertheless, international judges have been active in gradually lifting the veil on the still thick mystery of jus cogens.81 The question that arises here is what role can the IEcL adjudicator play in this context. Drawing on the requirements of the international adjudicatory function, and taking into account the specificities of each of them, jus cogens essentially enters the office of the IEcL international adjudicators as part of the rules of general international law that they must apply. IEcL adjudicators must interpret the legal instruments they apply taking into account “any relevant rules of international law applicable in the relations between the parties”.82 As recalled by the ICJ, “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”.83 As a legal system, international law is not a random collection of norms. There are meaningful relationships between the norms and, therefore, rules and principles of each specific field 2.3

81 82 83

Nanteuil, “Arbitrage Transnational et Droit International Général (2016)” (2017) lxiiAnnuaire Français de Droit International, 587, at 633–​634. See cases cited above note 12. Article 31(3)(c) of the vclt. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Report 1971, p. 31.

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of the discipline should be interpreted against the background of other rules and principles.84 Since peremptory norms of international law are binding on all members of the international community, without any possible derogation, they necessarily form part of both the context and the legal framework which the interpreter must take into account in his/​her office. In the wto framework, the requirement to take account of general international law is based on Article 3.2 of the dsu.85 The Appellate Body has pointed out that this article “reflects a measure of recognition that the wto Agreement is not to be read in clinical isolation from public international law”.86 Therefore, general international law rules are essentially default rules that apply to wto agreements in the absence of States contracting out of them. This logical solution thus makes it possible to fill any gaps in the applicable law. It is indeed obvious that the drafters of the wto agreements did not foresee and could not have foreseen every possible dispute or circumstance that might arise in the future concerning the text. Furthermore, in some instances, the drafters may have deliberately left matters open or ambiguous due to an absence of agreement. It is clear then that wto panels and the Appellate Body cannot always simply declare the law as set out in specific wto rules. Rather, they will need to decipher the intentions of the drafters as reflected in the text through a careful process of interpretation, following general international law rules.87 Panels and the Appellate Body have explicitly recognized, for example, the role of Article 31 and 32 vclt in providing “customary rules of interpretation of public international law”.88 84

85

86 87 88

See generally Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,Report of the International Law Commission, Fifty-​Eighth Session, General Assembly Official Records, (A/​61/​10), Chapter xii. Article 3.2 of the dsu provides: “The dispute settlement system of the wto is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the dsb cannot add to or diminish the rights and obligations provided in the covered agreements”. Appelate Body Report, United States –​Standards for Reformulated and Conventional Gasoline (US –​Gasoline), wt/​d s2/​a b/​R, adopted on 20 May 1996, dsr1996:i, at 17. Mitchell (above note 68), at 798. See among others US –​Gasoline (above note 86), at 17; Appellate Body Report, Japan –​ Taxes on Alcoholic Beverages ( Japan –​Alcoholic Beverages ii), wt/​d s8/​a b/​R, wt/​d s10/​ ab/​R, wt/​d s11/​a b/​R, adopted on 1 November 1996, drs1996:i, p.10; Appellate Body Report, United States –​Import Prohibition of Certain Shrimp and Shrimp Products (US –​ Shrimp), para. 114; Appellate Body Report, United States –​Countervailing Duties on Certain

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Since jus cogens norms are, by definition, norms recognized by the international community as a whole as those from which no derogation is permitted, they are therefore not among those to which parties to a trade agreement may have to “contract-​out”.89 Moreover, consideration by panels and the Appellate Body of peremptory norms, in appropriate circumstances, would serve to locate the wto more clearly within the framework of public international law. Interpreting wto provisions in a manner consistent with jus cogens norms would avoid some potential conflicts and provide answers to questions on which the wto agreements are silent or unclear. dsu Article 3.2 supports such approach and could provide a coherent framework for interpreting rules, particularly in the face of ambiguity. Indeed, one of the objectives of wto dispute settlement described in Article 3.2 is to provide “security and predictability to the multilateral trading system”. In Japan –​Alcoholic Beverages ii, the Appellate Body stated that this objective was to be served by acknowledging the flexibility in the wto rules “for reasoned judgments in confronting the endless and ever-​changing ebb and flow of real facts in real cases in the real world” and that “wto rules are reliable, comprehensible and enforceable”.90 This approach would strive to reach consistent decisions. As the Appellate Body has recognised, adopted reports create legitimate expectations among members and should, therefore, be taken into account in deciding subsequent disputes.91 The more clearly the definition and articulation between the obligations of States under peremptory norms of international law and those under international trade are established, the better legal predictability and certainty is ensured under Article 3.2 of the dsu. Of course, the meaning and scope of a provision of an agreement can be significantly influenced by the requirements to take account of a peremptory norm. This has led many authors to state that panels and the Appellate Body cannot “apply” directly norms of general international law, but must only “take account” of them to the extent that they are reflected in the wto Agreements, which are the only applicable texts. They base their position on Articles 7 and 11 of the dsu, which state that the law applicable by the panels and the

Corrosion-​Resistant Carbon Steel Flat Products from Germany (US –​Carbon steel), wt/​ ds213/​a b/​R and Corr.1, adopted on 19 December 2002, dsr 2002: ix, para. 61. 89 See Panel Report, Korea –​Measures affecting government procurement (Korea –​ Procurement),wt/​d s163/​R, adopted on 19 June 2000, dsr2000:viii, at para. 7.96. 90 Japan –​Alcoholic Beverages ii (above note 86), at para. 31. 91 United States –​Final Anti-​Dumping Measures on Stainless Steel from Mexico (US –​Stainless Steel (Mexico), wt/​d s344/​a b/​R, adopted on 30 April 2008. See Mitchell, above note 68, p. 808; Petersmann, “Judging Judges” (above note 32), at 841.

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Appellate Body is the law contained in the wto Agreements. Based on these provisions, they assert that the applicable law of WTO Tribunals appears limited to the law reflected in the WTO agreements, and it is only to that extent that WTO Tribunals may apply principles of customary international law or general principles of law in resolving disputes.92 While this analysis seems plausible as far as jus dispositivum is concerned, since the parties can always contract outside general international law and stipulate particular rules for their relations, this is not the case for jus cogens norms. As indicated above, peremptory norms are by definition those which parties cannot choose to “contract-​out” of. This is the law which is outside the particular will of the parties to a wto agreement and which they may not derogate from. It is the outer and negative limit of what wto agreements can prescribe. As such, and contrary to other rules of general international law, it is “imperative” as its name indicates and is always part of the applicable law. It is therefore not, strictly speaking, a non-​w to law, which the Appellate Body indicated as not being invocable as a defence in Mexico –​Taxes on Soft Drinks.93 In this case, Mexico invoked in its defence of an international agreement binding upon the parties (i.e. the North American Free Trade Agreement (nafta)), but which the wto agreements can at least theoretically derogate from or ignore, whereas jus cogens is a non-​derogable law that is binding on all members of the international community, including wto members and the wto itself. The same is true for commercial or investment contracts: the freedom of choice of law of the parties only operates within the framework of what is delimited by jus cogens; it cannot result in the violation of norms which the international community as a whole considers to be imperative.94 92

Mitchell (above note 68), at 827; Marceau (above note 68), at 192–​199; Pellet (above note 31), at 774–​775. 93 Appellate Body Report, Mexico –​Tax measures on soft drinks and other beverages,wt/​ ds308/​a b/​R, adopted on 24 March 2006, at para. 56. 94 See Dispute concerning access to information under Article 9 of the ospar Convention (Ireland and the United Kingdom of Great Britain),pca Arbitration, final award of 2 July 2003, at para. 84;Jean-​Baptiste Racine “Les normes porteuses d’ordre public dans l’arbitrage commercial international” in Éric Loquin and Sébastien Manciaux (above note 73), at 22–​23. The same observation was made with regard to United Nations Security Council resolutions. See Mathias Audit “L’effet des sanctions économiques internationales sur l’arbitrage international” Loquin and Manciaux (above note 73), at 146, 153–​156; Lalive (above note 46), at 358.

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Another argument put forward is the prohibition on panels and the Appellate Body, under the terms of Article 3.2 of the dsu, to “add to or diminish the rights and obligations provided in the covered agreements”.95 By applying a jus cogens norm, the international adjudicator does not legislate, create, add or subtract rights from the parties. It merely raises a plea of law, which affects, as an exception, the application before it. This power is inherent in the adjudicator’s jurisdictional function, which is to decide the dispute in accordance with the rules of law. Furthermore, panels or the Appellate Body would not be adding or diminishing WTO since the covered agreements would have been changed automatically by jus cogens even before the panel was requested. In other words, the panel or the Appellate Body would act in conformity with the DSU by applying the WTO provisions as changed by jus cogens: Article 3.5 DSU, in fact, mandates them to reach solutions ‘consistent with the (covered) agreements.’ Or is it rather that the relevant WTO provision has “disappeared” and the panel would then be faced with a form of WTO non-​liquet.96 In investment arbitration, tribunals also explicitly rely on the codified rules of interpretation of the vclt, whose customary character is recalled each time to justify their application both to treaties concluded before the adoption of the Vienna Convention, or in disputes where the defendant State is not a party to the vclt.97 Indeed, the “bit cannot be interpreted and applied in a vacuum”

95 This position is defended in particular by the United States. See Ernst-​ Unlrich Petersmann “The Future of International Economic Law: a Research Agenda” in Joerges and Petersmann (above note 31), at 567. 96 Marceau (above note 68), at 213. See also Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law –​Report of the Study Group of the International Law Commission (finalised by Martti Koskenniemi), (A/​c n.4/​L.682), (2006), at paras. 169-​173. 97 See Spence International Investmentset al. v. Republic ofCosta Rica, icsid Case No unct/​ 13/​2, Interim Award on Jurisdiction, 25 October 2016, at para. 206; Tenaris S.A. and Talta –​ Trading e Marketing Sociedade Unipessoal Lda. v. Bolivarian Republic of Venezuela, icsid Case No arb/​11/​26, Award of 12 November 2016, at para. 130; edf International S.A., saur International S.A. and León Participaciones Argentinas S.A. v. Argentine Republic, icsid Case No. arb/​03/​23, Annulment Proceeding, decision of 5 February 2016 ;Venezuela US, s.r.l. (Barbados) ​v. Bolivarian Republic of Venezuela, pca Case No. 2013-​34, Partial Award on Jurisdiction of 26 July 2016, at paras. 48-​49; Crystallex International Corporation v. Bolivarian Republic of Venezuela, icsid Case n° arb(af)/​11/​2, Award of 4 April 2016, at para 537; Flemingo DutyFree Shop Private Limited v the Republic of Poland, cpa (uncitral), Award of 12 August 2016, at para. 319.

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and “has to be construed in harmony with other rules of international law of which it forms part, including those relating to human rights”.98 The arbitral tribunal in the Urbaser case uses a formula similar to that used before by the wto Appellate Body, noting that “the bit is not framed in isolation, but placed in the overall system of international law”.99 Therefore, recourse to the general principles of international law indicated in the bit would be meaningless if the position would be retained that the BIT is to be construed as an isolated set of rules of international law for the sole purpose of protecting investments through rights exclusively granted to investors.100 Consequently, investment arbitral tribunals not only apply general international law but also do not hesitate to take into account the norms of other branches of international law.101 An arbitral tribunal has asserted that “[i]‌t is common ground that the Tribunal should be sensitive to international jus cogens norms, including basic principles of human rights as defined by Article 53 of the Vienna Convention”.102

98 99

Urbaser S.A.v. Argentine Republic (above note 44), at para. 1200. Id., at para. 1201. See also, Asian Agricultural Products Ltd. (AAPL) v. Republic of Sri Lanka, icsid Case No arb/​87/​3, Award of 27 June 1990, at para. 21; PhoenixAction v. Czech Republic (above note 80), at para. 77; Saudi Arabia v. Arabian American Oil Company (aramco), Ad Hoc Arbitration, Award of 23 August 1958, (1963) 27 International Law Reports 165. 100 Urbaser v. Argentina (above note 44), at para. 1189. See also Saluka InvestmentsB.V. v. TheCzech Republic, uncitral Arbitration, Partial Award of 17 March 2006, at paras. 296-​ 308; Southern Pacific Properties(Middle East) Limited v. Arab RepublicofEgypt, icsid Case No. arb/​84/​3, Award on the Merits of 20 May 1992. 1 01 See for example saur International SA v. Republic of Argentina, icsid Case No arb/​ 04/​4, Award of 6 June 2012, at para. 330. See also Joseph Houben v. Republic ofBurundi, icsid Case No arb/​13/​7, Award of 12 January 2016, at para. 177; Vestey GroupLtd v. Bolivarian Republic ofVenezuela, icsid Case No arb/​06/​4, Award of 15 April 2016, at para. 297; TotalS.A. v. TheArgentineRepublic, icsid Case No. arb/​04/​01, Award of 27 December 2010, at para. 129; RosInvestCoUK Ltd. v. TheRussianFederation, Stockholm Chamber of Commerce (scc) Case No V079/​2005, Award of 12 September 2010, at para. 614; Continental CasualtyCompanyv. The Argentine Republic, icsid Case No arb/​ 03/​9, Award of 5 September 2008, at para. 276; SiemensA.G. v. TheArgentineRepublic, icsid Case No arb/​02/​8, Award of 17 January 2007, at para. 354; AzurixCorp. v. TheArgentineRepublic, icsid Case No. arb/​01/​12, Award of 14 July 2006, at paras. 311–​312; Tecnicas MedioambientalesTecmed S.A.v. United Mexican States, icsid Case No arb(af)/​ 00/​2, Award of 29 May 2003, at para. 116; Ronald S. Lauder v. The Czech Republic, uncitral Arbitration, Award of 3 September 2001, at para. 200. 102 EDF International and others v. Argentina (above note 97), para. 909.

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There is, therefore, no doubt that investment arbitral tribunals, as well as the wto dispute settlement bodies (i.e. panels and the Appellate Body), should apply not only general international law but also peremptory norms recognized by the international community as those from which no derogation is permitted. This is particularly true for investment arbitration tribunals. As has been pointed out, it is their inability to take into account other State obligations, particularly in the field of human rights, that has justified in part the legitimacy crisis and the withdrawal of certain States from the icsid system.103 The consideration and application of jus cogens norms by IEcL adjudicators should thus contribute not only to ensuring that their decisions are consistent with international law, but also to establishing their legitimacy.104 The main practical difficulty may be the ability and willingness of these adjudicators to take into account norms outside their own jurisdiction. The point was made for IEcL as a whole, and it was explained that the gradual incorporation of general international law in courts and tribunals dealing specifically with IEcL was primarily due to the fact that personalities considered to be eminently qualified in general public international law were increasingly being appointed in investment arbitrations or as members of the wto Appellate Body.105 This power of each international adjudicator to apply and interpret jus cogens within the framework of their office and the settlement of disputes submitted to them may quickly raise the problem of divergent or even conflicting approaches to what peremptory norms are, or to the effects that such peremptory norms should have in different areas of law. This can lead to the resurgence of a debate that has already animated the international legal community: the risk of fragmentation of international law. Instead of being the tool for bringing international law into coherence, jus cogens could be a source of a division of international law in its application by international courts and tribunals.106 In his third report, the Special Rapporteur of the ilc on peremptory

1 03 Ratner (above note 31), at 371–​372. 104 See Mitchell (above note 68), at 799; Friedl Weiss “Trade and investment: What Relations” in Sacerdoti, Acconci, Valenti and de Luca (above note 33), at 99; Joanna Jemielniak Legal Interpretation in International Commercial Arbitration (Ashgate, 2014), at 198; Petersmann “Judging Judges” (above note 32), at 870–​878, 880–​882; Racine (above note 94), at 32, 35. 105 McRae (above note 30), at 629–​630. 106 Kadelbach (above note 16), at 165; Jemielniak (above note 98), at 194–​195. See on the controversial methodology for the determination and application of customary law by investment arbitral tribunals or wto panels and Appellate Body, Jacob, Latty and de Nanteuil (above note 80), at 598–​603; Denkers and Jägers (above note 47), at 482–​483.

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norms of general international law (jus cogens) makes a proposal that could a priori solve the problem, within the framework of article 66 vclt: any dispute concerning whether a treaty conflicts with a peremptory norm of general international law (jus cogens) should be submitted to the International Court of Justice for a decision, unless the parties to the dispute agree to submit the dispute to arbitration.107 While reiterating our above-​mentioned reservations on the usefulness of such a solution if it does not result in making the jurisdiction of icj or the arbitration compulsory,108 the question that arises is the impact of such a rule, if adopted, on the other dispute settlement bodies. Would such jurisdiction of the icj or the arbitral tribunal be exclusive or merely by default? It is obvious that if it is a default jurisdiction, the problem is not solved since the risk of divergent interpretations remains. If such jurisdiction is exclusive, should an investment arbitral tribunal, before which a challenge would arise as to the existence or interpretation of a jus cogens norm that has been raised as a defence, stay the proceedings before it and invite the parties to first refer the dispute to the icj or to constitute an arbitral tribunal under article 66 vclt? Or should a panel or the wto Appellate Body be able to refer the question directly to the icj as a preliminary question, on a model that currently exists only in certain special regimes (European Union, West African Economic and Monetary Union (waemu), Organization for the Harmonization of Business Law in Africa (ohada) …)? These are important questions that will have to be decided for the suggested mechanism to be effective. In reality, just as with the fragmentation of international law due to an alleged proliferation of courts and tribunals, the risk of fragmentation of international law by the divergent application of jus cogens is not insurmountable. The solutions proposed for the former therefore seem to us to be equally applicable here.109 Following the terms of the ilc’s Draft Conclusion 20 on jus cogens, that in the case of a conflict between jus cogens and a“another rule of international law, the latter is, as far as possible, to be interpreted and applied so as to be consistent” with the jus cogens rules.110 Specifically, this requires IEcL adjudicators to use jus cogens as a framework for interpreting the specific norms they apply, where appropriate. Such a necessarily conciliatory approach would make it 1 07 108 109 110

Third Tladi report (above note 40), at para. 54. See 2.1. above. See Conclusions on Fragmentation (above note 78), at para. 251. Draft Conclusion 20 of the Draft Conclusions on Peremptory Norms (above note 20).

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possible to avoid the invalidation of treaties, while at the same time ensuring an interpretation that would make it possible to safeguard the fundamental norms of the international community as a whole. This means, following the principle identified by the icj in the Oil Platforms case, that it should not be too easily accepted that an IEcL agreement is invalid for being inconsistent with a norm of jus cogens and, as far as possible, validity of a treaty should be strived for. As the icj has indeed stipulated, investment arbitral tribunals, as well as wto panels and the Appellate Body, should start from the presumption that the parties did not “intend to operate wholly independently of the relevant rules of international law”, especially peremptory norms of international law.111 Such a conciliatory interpretation is necessary not only for agreements concluded by States but also for unilateral acts, including those of international economic institutions, which would be a source of rights and obligations.112 In most cases, the good faith interpretation of IEcL’s norms will lead to the avoidance of violation of jus cogens, resolving all or most apparent and direct conflicts with peremptory norms. In other words, IEcL adjudicators must read investment and trade law provisions so as to avoid conflicts with peremptory norms of international law. The conciliatory approach was followed, for example, by the cjeu in the Polisario Front and Brita cases. In both cases, when asked to declare null and void the trade agreements concluded by the EU with Morocco and Israel respectively for alleged violations of the right to self-​determination of the Saharawi and Palestinians correspondingly, the Court interpreted these agreements as being understandable only as not applying to the territories of the peoples concerned.113 By opting for such an interpretation, the Court of Luxembourg has thus made it possible to preserve the integrity of the agreements, while not permitting the violation of the right to self-​determination, a peremptory norm of international law.114

111 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), icj Reports 2003, p. 161, at paras. 40-​41. 112 Case Concerning Right of Passage over Indian territory (Preliminary Objections), icj Reports I957, p. 125, at 142; Third Tladi Report (above note 40), at para. 159; Fragmentation Report (above 95), at paras. 411-​416, 447–​450. 113 Council of the European Union v Front Polisario (above note 50), at para 114 ; Fourth Chamber, Firma Brita GmbH v Hauptzollamt Hamburg-​Hafen, Judgment of 25 February 2010, at para. 53. 114 See in the same direction, Panel Report, European Communities –​Measures affecting the approval and marketing of biotech products (ec –​ Biotech),wt/​d s291/​R, wt/​d s293/​R, Corr.1 and Add.1, 2, 3, 4, 5, 6, 7, 8, and 9, adopted on 21 November 2006, at para. 7.92.

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In Wena Hotels v. Egypt, the icsid arbitral tribunal considered that jus cogens had a “controlling function” over the applicable law chosen by the parties.115 This means that jus cogens makes it possible to keep the applicable law chosen by the parties, and its interpretation, within the framework of “international legality”. Similarly, in the context of wto dispute settlement, panels have affirmed that there is a presumption of absence of conflict between States’ international obligations.116 If we agree that the IEcL adjudicator has the power to apply and interpret jus cogens norms, it is questionable whether he/​she can do so ex officio, in particular by virtue of the maxim jura novit curia. Specifically, the question is whether panels, the Appellate Body or investment arbitral tribunals can decide the dispute before them based on rules other than those that the claimant or defendant invokes. To be applied before these bodies, does the jus cogens norm need to be expressly stated by the parties to the dispute? Or can these bodies proprio motu invoke and apply to the dispute a peremptory norm of international law precisely to allow the preservation of the values that the international community as a whole considers fundamental? The maxim jura novit curia, which literally means “the judge knows the law”, reflects a distribution of the respective roles of the judge and the parties in the conduct of the trial. While it is up to the parties to provide the judge with the facts or behaviour that justify their claims, it is up to the judge alone to say what the law is. Thus, the judge/​arbitrator is irrefutably presumed to know the law which does not, therefore, have to be proved to him/​ her, at least as far as the rules of the legal system which conferred him/​her the power to judge are concerned.117 As we have just seen, general international law is not a foreign law for the IEcL adjudicator, who applies it within

115 Wena Hotels Limited v. Arab Republic of Egypt,icsid Case No arb/​98/​4, Decision on Application for Annulment of 28 January 2002, at para. 38. 116 See Panel Report, Indonesia –​Certain Measures Affecting the Automobile Industry (Indonesia –​Autos), wt/​d s54/​R, wt/​d s55/​R, wt/​59/​R, wt/​d s64/​R, adopted on 23 July 1998, at para. 14.28; Panel Report, India –​Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (India –​Quantitative Restrictions), wt/​d s90/​ R, adopted on 22 September 1999, at para. 4.20; Panel Report, Turkey –​Restrictions on Imports of Textile and Clothing Products (Turkey –​Textiles), adopted 19 November 1999, at para. 9.92. 117 See Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, icj Reports 1974, p. 175, at para. 18. Raphaëlle Rivier “La Preuve Devant les Juridictions Interétatiques à Vocation Universelle (CIJ et TIDM)” in Hélène Ruiz Fabri and Jean-​Marc Sorel (eds.) La Preuve Devant les Juridictions Internationales (Pedone, 2007), at 24, 49–​54; Verhoeven (above note 23), at 146–​147.

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the framework of his/​her office. At least theoretically, the solution seems obvious: “S’il sait le droit, le saurait-​il s’il est de jus cogens”.118 It is difficult to see how he/​she can be prohibited from acting ex officio, i.e. even if the parties have not asked him/​her to do so, from applying a rule of public policy. On the contrary, as has been written, he/​she must be obliged to do so, lest he/​she runs the risk of being associated with a violation of the fundamental interests of the international community. This theoretically obvious solution is, however, politically more delicate. It is precisely because it is accused of judicial activism and of creating the law, rather than simply applying it, that the wto Appellate Body is paralysed by the United States.119 As Vadi explained, while one can agree that there is a need to prevent free decision-​ making, the difficulties in identifying norms of jus cogens and the necessity to avoid judicial activism should not lead adjudicators to dismiss jus cogens tout court, given that jus cogens constitutes an important structural element of international law.120 IEcL international adjudicators “have the right –​ and even the obligation –​to themselves raise the issue of whether disputed contracts or legal provisions before them”are consistent with “international public policy”.121 While avoiding their courtroom being used as a framework for violations of the fundamental norms of the international community, they must be careful to apply the peremptory norms of international law ex officio, taking care not to indirectly modify what has been requested by the parties by this change in the rule of law applicable to their claims. A very delicate balancing act, in short. Investment arbitral tribunals try to strike that balance by recognizing the right to invoke relevant rules ex officio, provided that the parties are allowed to express their views on the rule that the arbitrators propose to apply. Thus, after having seemed to indicate that the tribunal could only find the existence of a

1 18 Verhoeven (above note 23), at 147. 119 See Philip Blenkinsop “U.S. Trade Offensive Takes Out WTO as Global Arbiter”, 10 December 2019, on https://​www.reuters.com/​article/​us-​trade-​wto/​us-​trade-​offensive-​ takes-​out-​wto-​as-​global-​arbiter-​idUSKBN1YE0YE;“Spotlight: WTO’s Appellate Body Locked out Due to U.S. Blockage”, 11 December 2019, on http://​www.xinhuanet.com/​ english/​2019-​12/​11/​c_​138622632.htm. Accessed 14 June 2020.. 120 Vadi (above note 1), at 363–​370. 121 Id., at 367. See also, Racine (above note 94), at 26; Anne-​Sylvie Courdier-​Cuisinier and Stéphanie Grayot-​Dirx, “Les Arbitres Confrontés à la Violation de l’Ordre Public” in Loquin and Manciaux (above note 73), at 83–​87; Giovanni Zarra “The Issue of Incoherence in Investment Arbitration: is There Need for a Systemic Reform” (2018) 17 Chinese Journal of International Law 137, at 183–​184.

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customary rule if the party asserting it demonstrates the existence of such a rule,122 the arbitrators in Windstream Energy v. Canada, stated that if the Tribunal considers that there are issues or questions that neither Party has fully or properly addressed, or if it wishes to refer to legal authorities other than those cited by the Parties, it should draw the Parties’ attention to those issues, questions and authorities and solicit the Parties’ views thereon”.123 Another tribunal confirmed this approach, linking it directly to the maxim jura novit curia: [t]‌he principle iura novit curia –​or better, iura novit arbiter –​allows the Tribunal to form its own opinion of the meaning of the law, provided that it does not surprise the Parties with a legal theory that was not subject to debate and that the Parties could not anticipate.124 From this point of view, the progressive admission of amici curiae, particularly ngo s, within the realms of economic dispute settlement mechanisms will undoubtedly help to consolidate this balance. Jus cogens arguments will be able to be invoked by third parties, thus limiting proprio motu invocation by the judge/​arbitrator, while allowing the parties to make their observations and comments on the amici curiae submissions. Beyond the legitimacy they bring to these procedures,125 the amici curiae can thus support the judge/​arbitrator in bringing the IEcL into line with what is likely to be peremptory norms of international law. Regrettably, it must be noted that the difficulties in applying and interpreting jus cogens by international adjudicators of the IEcL are no different from those encountered by their counterparts in other branches of international law. Thus, there is not one failure or gap that would be unique to the IEcL institutions, although the way in which some of these institutions operate can be 122 The Tribunal affirmed that “it is for each Party to supports its position as to the content of the rule with appropriate legal authorities and evidence”. Windstream EnergyLLC v. Government of Canada, PCA Case n° 2013–​22, Award of 27 September 2016, at para. 350. 123 Ibid. 124 Churchill MiningPLC and Planet Mining Pty Ltd v. Republic ofIndonesia, icsid Case No. arb/​12/​14 and 12/​40, award of 6 December 2016, at para. 236. 125 Racine (above note 94), at 13; Marceau (above note 68), at 228; Petersmann “Human Rights, International Economic law and ‘Constitutional Justice’ ” (above note 32), at 797–​798.

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recognized as contributing to the accentuation of these systemic failures. The techniques of international law, in IEcL as elsewhere, are insufficient to give jus cogens the place that one would no doubt wish for. This is true both for the sources of the law applicable to international economic relations and for the law of responsibility in IEcL, as we shall now see. 3

Subdivisions of International Economic Law as Special Regimes: The Specific Effects of Jus Cogens in IEcL

Codified under the law of treaties, peremptory norms soon overflowed from this initial framework into other areas of international law. Indeed, for many authors, it was obvious that if jus cogens encapsulates the core values of the international legal order, it must be present everywhere in the framework of that legal order.126 Academic debate very quickly turned to the effects of jus cogens in the field of international responsibility, to strengthen the regime of responsibility in cases of violation of peremptory rules. While there has been much debate about the impact of jus cogens violations on the jurisdiction of national and international courts, and on immunities in international law,127very little has been said about the effect of jus cogens on IEcL rules. It is that issue that is addressed in this section. The allegories used by Maria Green to describe the relationship between human rights and trade law may also well summarize the specific effects of jus cogens in IEcL in the field of international responsibility.128 The first image is one of the international public policy lawyer standing forlornly out in the cold, pressing up against a window and looking in at the warm glow of enforcement mechanisms that actually work. The international public policy lawyer, in this paradigm, wants to be able to use trade law to ensure respect of jus cogens norms simply because trade law enforcement is real and apparently more effective and efficient than other international law regimes. The second paradigm is that of the international public policy advocate wanting to see investment law and other commercial mechanisms restrained by jus cogens. Under this approach, the role of jus cogens in IEcL is essentially one of mitigation: the 1 26 See Tomuschat (above note 22), at 22; Gaja (above 39), at 290–​301. 127 See for example Apollin Koagne Zouapet Les immunités dans l’ordre juridique international: Le prisme de la constance (Pedone, 2020). 128 See Maria Green “Integrating Enforcement of Human Rights Laws with Enforcement of Trade Laws: Some Baseline Issues” in Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi Bonanomi (eds.), Human Rights and International Trade (Oxford, 2005), at 237.

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advocate seeks to ensure that the State’s international obligations in economic matters do not interfere with its jus cogens’ obligations and that trade and investment standards, practices, rulemaking, and enforcement avoid harms and are compatible with jus cogens’ obligations of all the parties. In the first case, offensive use is made of IEcL rules to ensure compliance with peremptory norms of international law. In the second case, more defensive use is made of jus cogens, in an attempt to paralyse the effects of contrary iecL norms in the field of international responsibility. The first paradigm is found mainly in the wto framework: jus cogens is then defined as a legitimate objective pursued by the State. The second paradigm is more recurrent in the context of investment litigation: jus cogens will be invoked as a defence to assess the legality of the actions of the investor and the State. On the fringes of this uproar, a “petit village gaulois” seems to be resisting, where jus cogens appears to have had very modest effects so far: it is that of the international financial institutions. 3.1 Jus Cogens as a Legitimate Objective in the Law of the wto It is widely agreed that, in accordance with the preambles of gatt and of the Agreement establishing the wto (hereinafter, wto Agreement or Marrakech Agreement), the purpose of the multilateral trade regime is to raise living standards all around the world, rather than to maximise trade per se. The US-​Shrimp case129 reflects recognition by the Appellate Body and the wto that there are values other than trade and economic efficiency that have to be considered. The case reveals that the wto cannot focus only on trade, and they contain at least some carve-​outs to be applied for the protection of the core values of the international community in whole.130 Indeed, the wto agreements contain elements and numerous references that can ensure both respect and protection of the fundamental values of the international community. The gatt’s preamble sets out the objectives of international trade as being to “rais[e]‌standards of living, ensur[e] full employment and a large and steadily growing volume income”.131 The Marrakesh Agreement reiterates these objectives and expands them by acknowledging the particular needs of developing countries, and specifying that trade and economic relations should be conducted in accordance with the objective of sustainable development.132 The 1 29 US –​Shrimp (above note 88). 130 John H. Jackson “Reflections on the Possible Research agenda for Exploring the Relationship between Human Rights Norms and International Trade Rules” in Abott, Breining-​Kaufmann and Cottier (above note 31), at 22; Ratner (above note 31), at 325. 131 General Agreement on Tariffs and Trade (gatt), Geneva, 30 October 1947. 132 Preamble, Agreement establishing the World Trade Organization (wto), Marrakesh, 15 April 1994.

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concept of “sustainable development” as defined by the Brundtland Report, contains within it two key concepts: the concept of “needs”, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs.133 It is, therefore, reasonable to assume that, by referring to this concept, the drafters of the Marrakesh Agreement recognized not only the need to give priority to the poor in their trade actions but above all, that international trade relations should lead to the improvement of people’s living conditions. As indicated by the Appellate Body, the preamble of the wto agreement informs all the covered agreements.134 The preamble indicates, in Caroline Dommen’s view, that there is no incompatibility between the objectives of the wto and the protection of the fundamental values of the international community such as the protection of human rights and strongly suggests that it is possible to find ways and means to develop international trade rules while ensuring respect for peremptory norms of international law.135 Indeed, if it is recognized that jus cogens norms are essentially aimed at ensuring harmonious relations between peoples and the preservation of human dignity and rights, it becomes clear that their preservation must be considered a “legitimate objective” within the wto framework. Thus, certain provisions of the gatt have been drafted in particularly flexible precisely to achieve the balance between the requirements of trade and the preservation of these “other” legitimate objectives. This avoids rigid interpretation and gives wto panels the possibility to ensure their “completion” in light of the particular circumstances of each dispute. This is the case in particular for Article xx, which deals with general exceptions.136 Thus, the determination of compliance under this Article, and similar provisions in wto agreements such as Article xiv of gats,137 is a mixed question of facts and law. One can thus 133 United Nations World Commission on Environment and Development (ed.), Report of the World Commission on Environment and Development: Our Common Future, Oxford, Oxford University Press, 1987, p. 45. 134 US –​Shrimp (above note 86), at para 129; Appellate Body Report, European Communities –​ Conditions for the Granting of Tariff Preferences to Developing Countries –​Status Report by the European Communities (ec –​ Tariff Preferences), wt/​d s246/​a b/​R, adopted on 20 April 2004, at para. 161. 135 Dommen (above note 30), at 122–​123. See also Ernst-​Ulrich Petersmann, “Multilevel trade governance in the wto requires multilevel constitutionalism”, in Joerges and Petersmann, at 26–​27. 136 Marceau (above note 68), at 206. 137 General Agreement on Trade in Services (gats), Annex 1B of the Marrakesh Agreement establishing the wto.

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consider that the implementation of, or compliance with, a jus cogens norm should be a determining factor for a panel or the Appellate Body to find that the measure taken by a State meets the requirements of Articles xx gatt and xiv gats. These articles are in fact vehicles for reconciling the rules of international trade with the requirements of jus cogens in international law. The Appellate Body decision in US –​Shrimp made clear that certain policies can be taken into consideration under certain subparagraphs of Article xx gatt.138 Importantly, for the Appellate Body, the policy consideration which has so far been accepted to justify a unilateral action reflects a “shared policy value”.139 On this criterion, which is reminiscent of the philosophy of jus cogens, it is possible to identify the possible “niches” for the application of jus cogens in the wto agreements: public moral, protection of lives, compliance with law or regulations, products of prison labour and security exceptions. More specifically, these are the exceptions listed notably in gatt Articles xx and xxi.140 The concept of “public morals” has been defined as “standards of right and wrong conduct maintained by or on behalf of a community or nation”.141 In the wto context, it has been indicated that the public morals referred to in Article xx (a) gatt, includes both instrumental and non-​instrumental goals: while avoiding or preventing wrongful conduct is one aspect, signifying the community’s inherent outrage at or disapprobation of the behaviour in question is another aspect.142 In a landmark ruling, the EU was found to be in principle entitled to rely upon domestically defined perceptions of public morals to ban the importation of seal-​related products, subject to certain exceptions.143 wto members are entitled to condition the importation of goods and services to comply with labour standards considered to pertain to ordre public or public morality. They are free to require compliance with core labour standards, or 1 38 US –​Shrimp (above note 86), at para 121. 139 Id., at para. 135. 140 See also Article 27 (2) Agreement on Trade-​Related Aspects of Intellectual Property Rights (trips). 141 Panel Report, United States –​Measures Affecting the Cross-​Border Supply of Gambling and Betting Services (US –​Gambling), wt/​d s285/​R, adopted on 20 April 2005, at para. 6.465. On an analysis of the travaux préparatoires and treaty practice of States, see Steve Charnovitz, “The Moral Exception in Trade Policy” (1998) 38 Virginia Journal of International Law 689, at 694–​717; Mark Wu “Free Trade and the Protection of Public Morals: an Analysis of the Newly Emerging Public Morals Clause Doctrine” (2008) 33 The Yale Journal of International Law 215, at 217–​225. 142 Robert Howse “Public morals”, in Cottier and Schefer (above note 36), at 239. 143 European Communities –​Measures Prohibiting the Importation and Marketing of Seal Products (EC –​Seal Products), wt/​d s400/​a b/​R, wt/​d s401/​a b/​R, adopted on 16 June 2014, at paras. 2.152–​2.163, 5.10, 5.12.

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the ban of child labour, in treating imported products based on such process and production methods (ppm s).144 States may, on that basis, adopt measures which seek to prevent violations of jus cogens norms, but may also go beyond the minimal standards of peremptory norms: protection from what is considered deeply unethical or contrary to what a country believes to be part of jus cogens can thus be addressed independently of an internationally accepted and shared qualification as a peremptory norm.145 Since standards defined as “self-​judging” can be invoked, this is even more possible and true for internationally agreed standards, and, foremost, for those accepted as peremptory norms of international law. The exception may serve as a basis for import bans of products not directed related to jus cogens violations but originating in a country that was found to be in grave and persistent breach of fundamental human rights.146 Consequently, the prohibition of genocide, torture, racial discrimination or apartheid undoubtedly falls within the definition of public morality as described in US –​Gambling. Because of their universality, the invocation of the values protected by peremptory norms of international law is less likely to be considered as purely subjective for the purpose of establishing a discriminatory trade policy. Since beliefs about right and wrong of all the wto members do include respect of jus cogens norms, the public morals exception is available as a justification for responding to violations of jus cogens under Article xx (a) gatt. In this sense, the wto public morals exception may make an overall positive contribution to the respect of peremptory norms of international law, even if the exception can be invoked defensively based on beliefs about right and wrong.147 144 Cottier (above note 1), at 338; Joost Pauwelyn “Human Rights in wto Dispute Settlement” in Abott, Breining-​Kaufmann and Cottier (above note 31), at 224–​227. See also the more nuanced analysis of Christine Breining-​Kaufmann “The Legal Matrix of Human Rights and Trade Law: States Obligations versus Private Rights and Obligations” in Abott, Breining-​Kaufmann and Cottier (above note 31), at 108–​111. 145 See Panel Report, United States –​Measures Affecting the Cross-​Border Supply of Gambling and Betting Services (US –​Gambling), wt/​d s285/​R, adopted on 20 April 2005, at para. 6.461. 146 Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi “Linking Trade and Human Rights in International Law: an Overview” in Abott, Breining-​Kaufmann and Cottier (above note 31), at 25. See also in the same book Krista Nadakavukaren Schefer “Stopping Trade in Conflict Diamonds: Exploring the Trade and Human Rights Interface with the wto Waiver for the Kimberley process”, at 429–​430. 147 Howse (above note 142), at 240; Ernst-​ Ulrich Petersmann, “Human Rights and International Trade Law: Defining and Connecting the Two Fields” Cottier, Pauwelyn and Bürgi Bonanomi (above note 146), at 36–​37; Sarah H. Cleveland “Human Rights Sanctions and International Trade: a Theory of Compatibility” (2002) 5 Journal of International Economic Law 133, at 157–​163.

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It is reasonable to assume that the same approach is valid for the exception in Article xx (b) gatt, which authorizes restrictive measures to protect, inter alia, human life, for example, where there is a real risk of mass murder leading to genocide. Indeed, the exception in Article xx (b) also leaves room for considering peremptory norms of international law as far they are related to the protection of human life. One might thus think, among the jus cogens norms in the ilc’s non-​exhaustive list, of genocide, crimes against humanity, violations of the basic rules of international humanitarian law that would harm the lives of combatants and civilians. In ec –​ Asbestos, the Appellate Body made it clear that Article xx (b) gatt and the notion of risk is open to a dynamic interpretation, thus taking into account developments in other organizations.148 More importantly, in this case, the Appellate Body has categorized the “preservation of human life and health” as “a value […] both vital and important in the highest degree”.149 Article xx (d) allows Members pursuing certain public policy objectives to derogate from the substantive obligations in gatt 1994, including the national treatment obligations set out in Article iii. A State will successfully discharge that burden and establish its Article xx (d) defence upon demonstration that the measure at issue secures compliance with “laws or regulations” that are themselves consistent with the gatt and that the measure at issue is “necessary” to secure such compliance.150 According to the Appellate Body, the terms “laws or regulations” in article xx (d) gatt cover rules that form part of the domestic legal system of a State, including rules deriving from international agreements that have been incorporated into the domestic legal system of the State or have direct effect according to that wto member’s legal system.151 The provision could, therefore, enable States which have adopted national legislation to punish serious violations of peremptory norms of international law to adopt exceptional measures as long as those measures are not discriminatory. This is the case of many states which have legislation punishing genocide, slavery, apartheid, serious violations of basic rules of international humanitarian law or crimes against humanity. It can hardly be argued that these rules are by themselves in violation of international trade rules or not consistent with

148 Appellate Body Report, European Communities –​Measures Affecting Asbestos and Asbestos-​Containing Products(ec –​ Asbestos), wt/​d s/​135/​12, adopted 5 April 2001, at para. 162. 149 Id., at para. 172. 150 Appellate Body Report, Thailand –​Customs and Fiscal Measures on Cigarettes from the Philippines (Thailand –​Cigarettes),wt/​d s371/​a b/​R,adopted 15 July 2011, at paras. 176–​177. 151 Mexico –​Taxes on Soft Drinks (above note 92), at para. 79.

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gatt. The State taking measures in this framework does not need to prove their effectiveness: “a measure can be said to be designed ‘to secure compliance’ even if the measure cannot be guaranteed to achieve its result with absolute certainty”.152 Article xx(e) gatt specifies the only exception related to working conditions in wto. This general exception allows members to prohibit imports of goods made by prison labour. This exception may be used to justify trade restrictions aimed at ending violations of the rules of international humanitarian law relating to the work of prisoners of war and captives. Since the essential rules of international humanitarian law are recognized as being peremptory norms of international law, a State could therefore under gatt Article xx(e) impose restrictions on the import of goods manufactured by prisoners and captives of war in violation of these rules. On this hypothesis, the general exception makes it possible to aim not only at using the restrictions relating to the “product standard”, but also those relating to the “process standard” for the specific purpose of ensuring compliance with peremptory norms. wto members are otherwise prevented from imposing legislative restrictions related to working conditions in production.153 Article xxgatt imposes for the exceptional measures above, what has been called the “necessity test”: the measures must be necessary to achieve the stated legitimate objective. It can be particularly difficult to demonstrate the “necessity” of a measure; it is likely to be easier to show that a measure relates to or intends to achieve an objective that to show that the measure is necessary to achieve the objective.154 The Appellate Body has considered this issue in several cases, suggesting that, “to be characterized as necessary, a measure does not have to be indispensable.155 It recognizes the need to avoid too narrow an interpretation of the term “necessary” while prohibiting under-​inclusive and

1 52 Id., at paras. 74-​75. 153 The “product standard” allows each member to establish its own legal labour protections as concerning domestic production, but severely circumscribes the ability of member to legislate the process by which imports are produced. See Drusilla Brown, “Labour protection” in Cottier and Nadakavukaren Schefer (above note 37), at 250. 154 See Nadakavukaren Schefer (above note 146), at 431–​432; Jeremy C. Marwell “Trade and Morality: the wto Public Morals Exception after Gambling” (2006) 81 New York University Law Review 802, at 827–​829; Cleveland (above note 147), at 164–​168. 155 Appellate Body Report, Brazil –​Measures Affecting Imports of Retreaded Tyres (Brazil –​ Retreaded Tyres), wt/​d s332/​a b/​R, adopted on 17 December 2007, at para. 210; Appellate Body Report, Korea –​Imports measures on Fresh, chilled and frozen beef (Korea –​Various Measures on Beef,wt/​d s161, 169/​a b/​R, adopted on 10 January 2001, at paras. 161–​164; ec –​ Asbestos, above note 155, at paras. 171–​172.

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piecemeal measures. Following Brazil –​Retreaded Tyres,156 a measure for the protection of a fundamental norm of jus cogens should be applied by a State identically to similar situations, without discrimination and political preferences. Thus, the more vital or important the policies it is aimed at, as is the case for jus cogens norms, the easier it would be to accept as “necessary” a measure designed for that purpose. In determining whether a measure is “necessary to protect public morals”, a panel should take in consideration, where appropriate, the existence of a jus cogens obligation as evidence of the “importance of the values and common interests” protected by the measure, as evidence of the efficacy of the chosen measure and as evidence of the good faith and consistent behaviour of the concerned member.157 All the exceptions of gatt Article xx must meet the conditions of the so-​ called “chapeau” of this provision. The measures must not amount to arbitrary and unjustifiable discrimination or disguised restrictions to trade. The requirement seeks to avoid economic protection under the guise of legitimate policy goals.158 Measures in response to a violation or risk of violation of a jus cogens norm satisfy the criteria of the chapeau if States do not opt for an arbitrary expansion of the rules identified as peremptory. As has been recalled several times above, the very criteria for defining a norm as peremptory in international law make it possible to avoid the accusation of the “arbitrary” or “unjustifiable” nature of the measures. It is sufficient, and indeed important, for States to adopt a systematic and rigorous approach aimed at punishing violations of jus cogens in the same way and for all. The risk of arbitrariness would be avoided if the measure follows a finding of a breach or a risk of breach of a peremptory norm by an international judge or a competent international organization, and the State taking the measure has taken part in multilateral or bilateral negotiations to prevent or terminate the breaches. The “intent” aspect of the chapeau is more difficult to foresee, but the nature of the jus cogens itself might help once more to assuage fears of disguised protectionism. While there is certainly room for some protectionism in practice, the risk is no higher than for the “classical” hypothesis allowed under gatt Article xx and gats

156 Appellate Body Report, Brazil –​Measures Affecting Imports of Retreaded Tyres (Brazil –​ Retreaded Tyres),wt/​d s332/​a b/​R, adopted 17 December 2007. See also United States –​ Measures Affecting the Production and Sale of Clove Cigarettes (US –​Clove Cigarettes),wt/​ ds406/​a b/​R, adopted 24 April 2012, at paras. 235-​236. 157 See Cleveland (above note 147), at 162–​163. 158 Appellate Body Report, United States –​Measures Affecting the Cross-​Border Supply of Gambling and Betting Services (US –​Gambling), wt/​d s285/​R, adopted on 20 April 2005, at paras. 51, 72, 103; ec –​ Asbestos, at para. 8.233.

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Article xiv. It is reasonable to think that States could not use allegations of jus cogens violations lightly to gain trade advantages or to bestow such advantages selectively. Actually, the internationalization of the “public morality” and other exceptions to international trade, via jus cogens, could even be the way to avoid the arbitrary and nationalistic use of the exceptions stipulated in gatt Article xx, gats Article xiv and other wto agreements.159 Under the “national security” exception of gatt Article xxi and gats Article xivbis, one could probably include measures taken not only in response to recommendations of the United Nations Security Council indicating serious violations of certain jus cogens norms, such as a threat to international peace and security but also hypotheses of systematic violation of peremptory norms prohibiting genocide or apartheid. Indeed, the recent practice of the United Nations Security Council indicates that certain hypotheses of violation of jus cogens norms may constitute a threat to the peace or a breach of international peace, justifying military action under Chapter vii of the United Nations Charter to “maintain or restore international peace and security”. Legitimately one might think that “if such unilateral force can be used against massive violation of human rights, it suggests that less intrusive unilateral economic actions would be even more permissible in such circumstances”.160 The wording of the national security exception in the gatt and gats leaves open whether there must be a Security Council resolution demanding a trade embargo against a particular State or group of States, or whether a less formal consideration of what is required for international peace and security would suffice. The national security exception should thus make it possible to protect the peremptory norms of international law more effectively. First, in the wto framework because the restrictive conditions of the chapeau of gatt Article xx are not required for the invocation of gatt Article xxi. Second, while a threat to peace for the purposes of Chapter vii of the UN Charter would require massive human rights violations, for example, a lesser degree of violation may satisfy the requirements of gatt Article xxi or gats Article xiv bis, as well as Articles xx (a) of the gatt or xiv (a) of the gats.161 An important aspect to be addressed is the use of the above measures to terminate a violation of jus cogens in another State. Can a wto member invoke and rely on jus cogens considerations occurring entirely in another State? In other words, are the exceptions in Articles xx of the gatt and xiv of the gats territorially limited? It should first be noted that the possibility of 1 59 Charnovitz (above note 141), at 742–​743. 160 Marceau (above note 68), at 224. See also Cleveland (above note 147), at 186. 161 Marceau (above note 68), at 224; Nadakavukaren Schefer (above note 146), at 437–​440.

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extraterritorial measures is not excluded from the exceptions in gatt Article xx. The exception in paragraph (e), which concerns the prison labour, clearly allows for a situation that has no connection with the national territory to be taken into account. The extraterritorial logic is therefore not contrary to the spirit of gatt Article xx and gats Article xiv gats. Secondly, while in Tuna I the Panel suggested that the gatt does not allow States to justify illegal trade actions on the basis of behaviour which occurred beyond their territorial boundaries,162 the Tuna ii Panel took a more nuanced approach. It first recognized that Article xx (g) did not explicitly spell out a limitation on the location of the exhaustible natural resource(s) to be protected, and found that the exception could be used to conserve exhaustible natural resources located outside its territory.163 It was, therefore, less because they affected resources outside US territory than because they appeared to be aimed at forcing other States to change their policy on the matter that the US measures were considered to fall outside the scope of Article xx (g). It could then, be inferred that a measure aimed at an extraterritorial situation could be admitted if it reflects a common opinio juris, as in the case of jus cogens, and satisfies the conditions of the chapeau of Article xx gatt. However, as is known, none of these panels’ reports have been adopted by the gatt Contracting Parties and did not produce binding legal effects within the multilateral trading system. That said, it seems fair to retain the approach of the second panel. As Gabrielle Marceau wrote, the reference to “shared value” in US –​Shrimp may be seen as an attempt to formulate a coherent jurisdictional test to assess when a country has a sufficient interest in a policy such that Article xx will excuse unilateral action against a producer which violates that policy.164 In US –​Gasoline, the Appellate Body said that given the different textual constructions of the various subparagraphs of Article xx, it would be unreasonable to suppose that the wto members States intended to require “the same kind or degree of connection or relationship between the measure under appraisal and the state interest of policy sought to be promoted or realized”.165 This suggests that the “territorial nexus” required will vary depending on the particular policies and the legal provision at issue.166 The linkage required for measures to prevent or

162 Panel Report, United –​States, Restrictions on imports of Tuna, ds21/​R, 3 September 1991 (not adopted), at para. 5.32. 163 Panel Report, United –​States, Restrictions on imports of Tuna, ds29/​R, 16 June 1994 (not adopted), at para. 5.20. 164 Marceau (above note 68), at 222. 165 US –​Gasoline (above note 86), at 17. 166 ec –​ Asbestos (above note 148), at para. 103. See Marceau (above note 68), at 222.

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halt genocide cannot reasonably be as severe as for measures to protect public procurement rules: where the policy implicated is a shared value, and the violator a clear outlaw, the need for a formal traditional jurisdiction over the regulated product itself can be very attenuated. The reflection may also be conducted from the perspective of the general law of international responsibility. Article 41(1) of the Articles on State Responsibility requires States, in case of a serious breach of a peremptory norm, to cooperate to bring the breach to an end by lawful means. Although Article 41 is directed only at States, it was thought that it would be reasonable to assume that the obligation extends to co-​operation with international organizations.167 According to the ilc Special Rapporteur on peremptory norms of general international law, while cooperation is more likely to be taken under the collective security institution, the concept has a broader scope.168 It is therefore questionable whether wto States cannot cooperate to stop a serious violation of a jus cogens standard within the territory of a member State. One can imagine, for example, a collective decision to suspend imports of machetes to a country where they could be used to commit genocide. One possibility would be for a State to obtain an action under what has been termed a “non-​violation complaint” under gatt Article xxiii, particularly paragraph 1(c). This possibility for a non-​violation complaint is also enshrined in Article 23 of the dsu. The second option –​from the perspective of the general law of international responsibility –​that may be considered is that of countermeasures because of a violation of peremptory norms. As is well known, because of the difficulty of reaching consensus on the question, the ilc has opted in its Articles for a “without prejudice” clause. Article 54 thus states that the chapter on countermeasures in the Articles on State Responsibility “does not prejudice to the right of any State, to take lawful measures against that State to ensure the cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached”. For some authors, “lawful measures” refers clearly to countermeasures: if Article 54 only envisaged measures that are per se lawful, there would be no reason for writing a “without prejudice” clause.169 According to this interpretation, Article 54 reserves the right for a State to take a measure which is per se contrary to wto rules, but which would 167 Giorgio Gaja “The Protection of General Interests in the International Community: General Course on Public International law” (2012) 364 Collected Courses of the Hague Academy of International Law 9, at 126–​127. 168 Third Tladi Report (above note 40), at para. 95. 169 Gaja (above note 167), at 130.

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become lawful because of the legitimate objective pursued, namely to put an end to the serious breach of a peremptory norm of international law. Based on China –​Publications and Audiovisual Products,170 Cottier and others thus assert that a state is entitled to take appropriate countermeasures in cases of slavery, forced labour, sexual exploitation, underpaid work of undocumented migrants, or policies that result in de facto racial segregation in housing or education.171 For Cottier, [c]‌ompliance with jus cogens as a Common Concern must entail the necessary set of carrots and sticks. Failing an international settlement and voluntarily compliance, subjects of international law must be entitled to take necessary unilateral action in seeking to bring about compliance with jus cogens.172 However, given the risks of abuse to which such freedom could quickly lead, each State unilaterally considering that another State has committed a serious violation of what it claims to be a peremptory norm, this hypothesis should be very closely circumscribed and should not allow the State to free itself from the strict requirements of gatt Article xx and gats Article xiv set out above. wto law, as a lex specialis and self-​contained regime, already offers interesting virtualities for the protection of fundamental norms recognized by the international community as a whole. As rightly pointed out by Breining-​Kaufmann, the wto today is only “constitutional” in the sense that it has developed into an international organization that is working on an international legal order for international trade that needs increasing legitimacy and transparency. Yet, it is not constitutional in the sense exported from national law as an organization that pursues objectives which go beyond the interest of the member States or that creates legal norms that are non-​amendable by the States.173 It cannot, therefore, stand in the way of the protection of the values and norms that States and the international community as a whole hold to be fundamental. As emphasized by one author

170 Appellate Body Report, China –​Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China –​Publications and Audiovisual Products), wt/​d s363/​a b/​R, adopted 19 January 2010. 171 Cottier (above note 1), at 340; Cottier, Pauwelyn and Bürgi (above note 146), p. 24. 172 Cottier (above note 1), at 351. 173 Breining-​Kaufmann, above note 151, p. 116.

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In other words, the violation of […] jus cogens, albeit not enforceable before WTO adjudicating bodies, does not free the violating state from any remedial obligations. The benefits obtained in one forum (say WTO) may be nullified by the rules on state responsibility.174 Jus Cogens as a Means for Determining Legality in International Investment Law In general, this section will focus on the consideration by arbitral tribunals of jus cogens as a defence in investment disputes. In order to capture all the aspects of this complex issue, it will deal in turn with the inclusion of provisions allowing for the taking into account of mandatory norms in investment agreements; the means by which States invoke jus cogens before arbitral tribunals; and the legal techniques and modalities by which arbitrators take into account jus cogens norms first in the interpretation of contractual clauses, and then outside the terms of the contract. On the first point, besides the reference in preambles to some non-​ investment-​concerns, such as sustainable development, some States have inserted special provisions in their investment treaties, in the form of non-​ precluded measures, which can serve as a basis to comply with their jus cogens obligations. For example, Canada’s 2014 Model bit provides that 3.2

[e]‌xcept in rare circumstances, such as when a measure or a series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, a non-​ discriminatory measure of a Party that is designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, does not constitute indirect expropriation.175 In the same vein, the Pan-​African Investment Code (paic) preclude measures that are taken, “by reason of national security, public interest, and public health or public morals” from being considered as a “less favourable treatment”.176 An 174 Marceau (above note 68), at 215. See also Denkers and Jägers, above note 47, pp. 476–​477; Howse (above note 142), p. 240. 175 Annex B. 10 (c) Model bit of Canada of 25 August 2014. See also Article 23 (1) Morocco-​ Nigeria bit, 3 December 2016; Article 16 2015 Indian Model bit; Article 8.2 Draft Pan-​ African Code (paic), 31 December 2016. 176 Article 8.3 paic. See for a general presentation, Makane Moïse Mbengue and Stefanie Schacherer, “Africa and the rethinking of international investment law. About the elaboration of the Pan-​African Investment Code”, in Anthea Roberts et al. (eds.), Comparative International Law, (Oxford University Press, 2018), pp. 547–​569.

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important reason is that these concerns are considered public-​law issues and as such, they are invoked by the concerned countries, in light of the needs of their populations. For the same reason, more bit s include generalised exceptions provisions whose language is strictly or loosely based on the carve-​outs for, inter alia, public morals and protection of human life in gatt Article xx and gats Article xiv. It should be reasonably possible to apply these exceptions to ensure the promotion and protection of jus cogens norms in a manner consistent with the legitimate wto objective set out above.177 This may ensure consistency in the interpretation of similar rules by different special regimes of international law, on the condition that this does not lead to confinement and isolation of IEcL adjudicators from general international law itself and others tribunals and courts such as the icj. This allows us to turn to the second point, which relates to the means by which States invoke jus cogens before arbitral tribunals. Due to the increasing complexity and overlapping obligations, States are increasingly invoking general international law and peremptory norms of international law as a defence before arbitral tribunals. Unfortunately, some arbitrators have had what has been decried as an “aggressive and expansive readings” based on “their personal view of the role of investment treaties rather than –​as required by the vclt –​grounding an approach in light of the objectives explicitly articulated by the States parties”.178 The severe assessment of Jürgen Kurtz is inspired by the disconcerting position of the arbitral tribunal in Enron v. Argentina that “the object and purpose of the Treaty, as a general proposition” applies “in situations of economic difficulty and hardship that require the protection of the internationally guaranteed rights of its beneficiaries”.179 The tribunal makes the protection of investors’ rights one of the main objectives of the bit, before fashioning a default, highly restrictive interpretative preference to comply with the purpose claimed to be dominant. The result of this approach is to eviscerate much of the flexibility inherent in the exception’s role as part of the treaty bargain struck between the State parties. Such an exclusive approach to general international law

177 See Continental Casualty v. ArgentineRepublic (above note 101), at para. 192. See also S.D. Myers, Inc. v. Government of Canada,uncitral, Partial Award of 13 November 2000, at para. 264. 178 Jürgen Kurtz “On the Evolution and Slow Convergence of International Trade and Investment Law” in Sacerdoti, Acconci, Valenti and de Luca (above note 33), at 109. 179 Enron Creditors Recovery Corporation ( formerly Enron Corporation) and Ponderosa Assets, L.P.v. ArgentineRepublic, icsid Case No. arb/​01/​3, award of 22 May 2007, at para. 331.

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would effectively put investor protection above the State’s obligations under peremptory norms of international law. Investment arbitrators, like other international adjudicators, should observe the few fundamental core principles which are the basis of the unity of international law, in particular, to preserve the core norms recognized by the international community as a whole. As “a matter of international constitutional law, a tribunal has an independent duty to apply imperative principles of law or jus cogens” as a consequence of which it should “not to give effect to the parties’ choice of law that is inconsistent with such principles”.180 In theory, respect for public policy by arbitrators is both the limit and the condition of the autonomy of international arbitration. Arbitration can only be autonomous if and to the extent that it respects public policy.181 The first issue at stake is the effectiveness of the arbitration. Apart from icsid arbitration,182 all arbitral awards rendered in investment matters follow the ordinary law system as regards their enforcement or the remedies exercised against them. When requested for the enforceability of the award or when examining an action for annulment, the national court seized of the case could thus sanction the arbitrator’s refusal to take into accountjus cogens norms if this refusal results in the State being held liable for obligations contrary to the peremptory norms of international law. Traditionally, both national and truly international public policy have played a negative role, acting as a limit to the recognition of arbitral awards. In particular, if an arbitral award contravenes public policy, national courts can deny its enforcement.183 Since norms of jus cogens, by their nature, are necessarily part of the internal public policy which the national court protects, an arbitral award which disregards them runs a real risk of being annulled before the competent domestic court. Even in the case of icsid arbitration, although Article 52 of the Washington Convention does not list violation of public policy as a ground for annulations of the award, arbitrators are still bound by the requirements of transnational public policy and jus cogens. First, the arbitral tribunal must apply general international law as required by Article 42(1) of the icsid Convention.184 180 MethanexCorporation v. United Statesof America, uncitral Arbitration, Final Award on Jurisdiction and Merits, 3 August 2005, at para. 24. 181 Racine (above note 94), at 7; Lalive (above note 46), at 358. 182 Article 54 of the Washington Convention provides for an automatic enforcement of icsid arbitral awards without any possibility for the national judge to which enforcement is requested to exercise any control, including a control of the award’s compliance with the public policy of the State concerned. 183 See Article 25 ohada Treaty; Article V(2) (b) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 184 See 2.3. above.

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Secondly, the fact that icsid awards are recognised and enforced as binding on all States that are parties to the relevant agreements requires their necessary compliance with international law. As advanced by one author, “respect for public international law and, a fortiori, international public policy, would be an implicit requisite of icsid awards”.185 In practice, it is reported that national courts have shown some resistance to the detachment of icsid awards from every form of judicial supervision and have elaborated a distinction between enforcement and execution. Thus, while icsid rules would cover enforcement, the law governing the execution would be national law. Furthermore, arbitral awards under the so-​called icsid Additional Facility, as well as those rendered under commercial arbitration rules may be reviewed in local courts.186 Finally, jus cogens is not a mere national concept but embodies values recognized and shared by the international community as fundamental and essential. The international community as a whole requires arbitral justice to respect the general interests protected by peremptory norms of international law. The question that this raises in practical terms is that of identifying the public policy that international arbitration, whether investment or commercial, is bound to respect. While, as we have seen, the concept of the “non-​arbitrability”, which refers to the internal “international public policy” of States, is gradually being reduced in scope for international arbitration, the latter nevertheless remains subject to a public policy that is often described as “transnational”, or “truly international”. Is this transnational public policy to which the arbitrator would be subject equivalent to jus cogens? Transnational public policy is presented as a public policy specific to international commercial and investment disputes.187 It thus appears that this transnational public policy is a specific public policy, specific to the society of merchants, which does not necessarily meet the requirements of the definition of jus cogens as stipulated in Article 53 vclt. The two may overlap without being confused.188 Since jus cogens norms are those recognized by the international community as a whole, it can be inferred that they are the minimum, the fundamental values that must necessarily also be included in transnational public policy. The latter broader category contains, in addition to jus cogens, those norms considered essential for the proper conduct of international commercial and investment relations. We must admit with Racine that there is a hierarchy of public orders that translate 1 85 186 187 188

Vadi (above note 1), at 369. Ibid. See Racine (above note 94), at 15–​16. See Vadi (above note 1), at 367.

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“degrés de l’impérativité”,189 at the base of which is internal public order, then international public order of internal orders, then transnational public order, and at the top of the “pyramid” are the imperative norms of international law. In any case, “it is common ground that the tribunal should be sensitive to international jus cogens norms, including basic principles of human rights”.190 This bring us to the third and last point: what are the legal techniques and modalities by which arbitrators take into accountjus cogens norms? The public interest in the protection of non-​investment concerns has been progressively taken into consideration by arbitral tribunals. First, arbitral tribunals have refused to protect certain investments because they have violated fundamental values of international society. While refusing191 that the invocation of a jus cogens norm would have the effect of depriving them of jurisdiction, arbitral tribunals have nevertheless indicated that investments made in violation of such a norm should not enjoy the protection of international law. This approach, not expressly enshrined concerning peremptory norms of international law, has been applied by arbitral tribunals for transnational public policy. In each of these cases, the respondent State presented the conduct of the investor as contrary to international public policy, which justified that the investments in question were not protected under international law. They have very often been followed by the arbitrators, who have sanctioned the circumstances in which the investment was made. For example, the arbitral tribunal in Inceysa v. Salvador indicated that “not to exclude Inceysa’s investment from the protection of the bit would be a violation of international public policy” and would violate the principle of respect due to the law. For that reason, the tribunal held that Inceysa’s investment was not protected by the bit.192 Applying the same logic, the arbitral tribunal in World Duty Free v. Kenya, on the basis of “domestic law and international conventions”, concluded that “bribery is contrary to the international public policy of most, if not all, States or … to transnational public policy” and that “claims based on contracts of corruption .. cannot be upheld”.193 If this is true for transnational public policy, it would be a fortiori true for peremptory norms of international law: an

1 89 190 191 192

Racine (above note 94), at 27–​28. edf International S.A. and others v. Argentina (above note 97), at para. 909. As discussed in 2.2 above. InceysaVallisoletana S.L. v. Republic of ElSalvador, icsid Case No arb/​03/​26, Award of 2 August 2006, at para. 252. 193 World Duty Free v. Kenya (above note 76) at para. 53. See also Metal-​TechLtd. v. Republic ofUzbekistan, icsid Case No arb/​10/​3, Award of 4 October 2013, at para. 422.

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investment made in violation of jus cogens norms cannot claim the protection afforded by international law. Similarly, in Phoenix Action v. Czech Republic, the tribunal dismissed the case based on its view that the claimant did not have a bona fide investment. In its view, protection could not be afforded to “investments made in violation of the most fundamental rules of protection of human rights” including those “made in pursuance of torture or genocide or in support of slavery or trafficking of human organs”.194 This is a kind of application of the “Salini test”,195 which makes compliance with peremptory norms of international law, or at least their non-​violation, an element of the definition of investment protected under international law. The second way of integrating peremptory norms of international law in investment arbitration may result from the consideration by arbitrators of the legitimacy of the objectives pursued by a State in adopting measures that result in the violation of the rights of the investor. A number of arbitral tribunals have decided that a change in the host State’s domestic legal framework during the post-​establishment phase, due to the need to protect non-​ investment concerns, such as human rights or the environment, is a legitimate exercise of the host State’s police powers, rather than a regulatory taking, even though the change may constitute a breach of the investment treaty on which an arbitral tribunal’s jurisdiction is based.196 The doctrine of “State police powers”, which arbitral tribunals affirm as having widespread recognition in general international law, postulates that certain State measures pursuing a higher interest do not give rise to a right to compensation even if they would affect the economic interests of foreign investors.197 It has thus been implemented in environmental protection, anti-​corruption or economic recovery measures.198 Accordingly, legislative measures adopted by a State to ensure, for example,

1 94 Phoenix Action v. Czech Republic (above note 80) para. 78.0. 195 Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom ofMorocco, icsid Case No arb/​ 00/​4, Decision on Jurisdiction, 23 July 2001, at paras. 52-​58. 196 See Saluka InvestmentsB.V. v. The Czech Republic, uncitral Arbitration, Partial Award of 17 March 2006, at para. 262. 197 Philip Morris Brands sarl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, icsid Case n° arb/​10/​7, Award of 8 July 2016, at paras. 284-​293. 198 See Chemtura Corporation( formerly Crompton Corporation) v. Government ofCanada, uncitral arbitration, award of 2 August 2010, para. 266; edf (Services) Limitedv. Romania, icsid Case No. arb/​05/​13, award 8 October 2009, at para. 308; Suez, Sociedad General de Aguas de Barcelona S.A., and Vivendi Universal S.A. v. The Argentine Republic, icsid Case No arb/​03/​19, and AWG Group v. The Argentine Republic, uncitral Arbitration, Decision on Liability, 30 July 2010, at para. 140.

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the repression of serious violations of international humanitarian law following its international obligations, as long as they pursue a “clear and legitimate public purpose”199 must be accepted as lawful even if they result in the actual violation of the rights of the foreign investor. The issue is more complex when, while admitting the legitimacy of the objective pursued, the arbitral tribunal questions the necessity of the measure, as was the case in cases relating to the Argentine economic crisis and the ensuing litigation.200 Although the argument put forward by Argentina in its defence focused on necessity under Article 25 of the Articles on State Responsibility, the difficulties faced by arbitral tribunals could also arise in relation to the invocation of jus cogens norms. Hence it is not easy to understand how much a tribunal can assess whether the adoption of the measures which caused damages to an investor was the only possible way of facing the specific situation invoked (the so-​called “only way requirement”) or whether the State contributed to the generation of the situation. In this regard, the main problem is to understand whether tribunals ought to be deferential to a States’ choices or whether they can second-​guess all that has been done by the State prior to and after the occurrence of the situation of breach or risk of a breach of a peremptory norm of international law.201 In the cases where the tribunals rejected the Argentina plea of necessity,202 the rejection was generally based on a finding that Argentina had policy tools at its disposal (other than the measures against the investors) to address the crisis, or that Argentina had contributed to the economic situation through its policies. Either of these

199 Spyridon Roussalis v. Romania, icsid Case n° arb/​06/​1, Award of 7 December 2011, at para. 691. 200 For a general presentation of the facts and legal issues raised, see William W. Burke-​ White “The Argentine Financial Crisis: State Liability under BITs and the Legitimacy of the ICSID System”, Faculty Scholarship at Penn Law, available on https://​scholarship.law. upenn.edu/​cgi/​viewcontent.cgi?article=1192&context=faculty_​scholarship, accessed 21 June 2020. 201 Zarra (above note 121), at 148–​149. 202 See cmsGas TransmissionCompany v. The Republic of Argentina, icsid Case No arb/​01/​8, Award of 12 May 2005, at paras. 331, 355 (annulment decision, 25 September 2007); Enron v. Argentina (above note 181), at paras. 355–​395, 400-​405; SempraEnergy International v. TheArgentineRepublic, icsid Case No arb/​02/​16, Award of 28 September 2007, at paras. 186-​222 (Annulment decision, 29 June 2010); El PasoEnergy International Companyv. TheArgentineRepublic, icsid Case No arb/​03/​15, Award of 31 October 2011; bg GroupPlc.v. The Republic of Argentina, uncitral Arbitration, Award of 24 December 2007, at paras. 407-​412; National Gridplc v. TheArgentine Republic, uncitral Arbitration, Award of 3 November 2008, at paras. 260-​262; Total v. Argentina, above note 95, at paras. 482-​484; edf International and others v. Argentina (above note 97), at paras. 1171-​1181.

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findings essentially meant that its measures were not “necessary” to handle the crisis under the treaty or customary law. In accordance with Article 25 of arsiwa, which requires that the “unlawful” measure be the “only way” capable of safeguarding the essential interest, the approach followed by the arbitral tribunals, in this case, was particularly narrow.203 If the necessity invoked were to constitute a real risk of violation of a peremptory norm,204 the standard required may prove to be extremely high and may deter the State from taking adequate measures to prevent, for example, genocide. The approach followed by the wto Appellate Body to the necessity test should be retained in the case of an allegation of measures taken to avoid or terminate a violation of a peremptory norm of international law.205 This is the approach followed by the Continental Casualty Tribunal, which interpreted necessity under the bit with reference to wto case law, asking only “whether the Measures were apt to and did make such material or a decisive contribution” to protecting the State’s essential interests and whether alternative measures “would not have been reasonably available or would have been impracticable or speculative as to their effects”.206 Reasonableness and proportionality may contribute to finding a fair balance between different expectations, interests and concerns, particularly between the host State regulating powers and a foreign investor’s rights and expectations. Because of the core values they protect and their universality, jus cogens norms should be a key element in the search for this balance. The host State should not be placed in a situation where it has to make a choice that is too difficult: to refrain from its duty to prevent a violation of peremptory norms of international law or to pay an enormous, potentially crippling, sum to foreign investors who claim that the State’s action violates their rights.207 As rightly pointed out by Viñuales, from a legal standpoint, a government facing a critical situation should pursue a policy that, although contrary to the obligations arising out of a bit, maximizes the probability that the value enshrined in a peremptory norm will be preserved as fully as possible.208 This rule stems 203 For a stimulating analysis of the relationship between states of necessity and peremptory norms, see Jorge E. Viñuales “State of Necessity and Peremptory Norms in International Investment Law” (2008) 14 Law and Business Review of the Americas 79. 204 See para. 15 of the Commentary to Article 25 of the Articles on State Responsibility (above note 54), which noted that essential interests include those of the “international community as a whole”. 205 See 3.1. above. 206 Continental Casualty v. Argentina (above note 101), at paras. 196, 198. 207 Ratner (above note 31) at 354. 208 Viñuales (above note 203), at 97–​98.

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from the fact that, once a peremptory norm is at stake, every improvement in the probability required to preserve the value enshrined in a peremptory norm is not only desirable but also legally required. The effectiveness and efficiency of the measure adopted by the State could be more realistically assessed at the time of the remedy to be granted to the injured investor. Indeed, retaining the legality of measures taken by the host State because of peremptory obligations does not automatically deprive the investor of any compensation. Article 27 (b) of the Articles on State Responsibility indicates that the invocation of jus cogens as other circumstances precluding wrongfulness “is without prejudice to the question of compensation for any material loss caused by the act in question”. One of the interesting issues raised during the long contentious saga of the Argentine crisis is the possibility for a State to invoke the violation of international law, outside of contractual obligations, to justify the measures taken. In the Urbaser case, Argentina brought a counterclaim against the investor for breach of its international obligations regarding access to water.209 Based on the Argentine claim, one might ask whether a host State can invoke the violation of peremptory norms of international law by an investor to justify the legality of measures that the State has had to take in violation of the investment agreement. The reasoning followed by the tribunal opens up new perspectives in the application of jus cogens in international investment disputes. After stating that a variety of sources indicate that private persons, including investors, are now subjects of international law, the tribunal affirmed that internationally recognized human rights form part of the legal framework applicable to the investment transaction under the bit and can, therefore, be invoked in support of a counterclaim.210 However, the Tribunal noted that neither the treaty nor general international law imposes a positive obligation on the investor to ensure access to water. Therefore, even if the investor failed to comply with all of its contractual obligations, it did not breach an alleged international obligation to promote access to water, so that the counterclaim must be rejected.211 As the tribunal expressly acknowledges it, the solution would have been different if it were an obligation that international law expressly imposes on private persons.212 Such obligations exist in international law and can be found in certain peremptory norms of international law.213 2 09 210 211 212 213

Urbaser v. Argentina (above note 44), at paras. 1143–​1148, 1182-​1192. Id., at para. 1200-​1210. Id., at para. 1211-​1221. Ibid. Whereas the question of whether non-​State actors are bound by jus cogens is still highly contested, from a material point of view that seems to be a foregone conclusion. The

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This is the case, for example, of the prohibition of slavery, and to some extent the prohibition of genocide. It is conceivable that a company could at least be complicit in each of these crimes in certain circumstances, for example by facilitating the acquisition of machetes by a group of the population to commit genocide. In such a case, following the reasoning of the Urbaser tribunal, an arbitral tribunal seized of the matter could favourably accept such a counterclaim if the argument is advanced in connection with the investment. It has rightly been pointed out that this reasoning could lead to an uncontrollable broadening of the material jurisdiction of arbitral tribunals, which could then be seized of any claim relating to an investment regardless of the legal cause.214 On the other hand, one cannot totally reject this effort to rebalance investment disputes, indicating that investors may be subject to international obligations, deriving in particular from jus cogens norms, compliance with which may be discussed in arbitration. This is a narrow entry point for i­nvestors’ obligations in return for their rights under investment agreements.215 The reluctance of some arbitral tribunals to venture into the delicate terrain of jus cogens or obligations erga omnes was explained by the great difficulty in indisputably establishing such norms or obligations. It should be emphasized nevertheless that this difficulty is not unique to investment arbitration, and that the “mystery” of jus cogens216 is one of the reasons for the confusion and hesitation of many international judges. To address this, and to encourage investment tribunals to apply peremptory norms of international law, it has been proposed to renegotiate and restructure the international investment legal framework for the benefit of all parties concerned, applying a global perspective and taking into account continuous changes.217 It is a vast programme that goes beyond a simple reform of international investment law. It is a call for genuine consistency of all international law.

2 14 215 2 16 217

orthodox position that only States would be obliged to observe and not derogate from jus cogens is too much engrafted upon the outmoded conception that non-​State actors have no treaty making capacity that would contravene peremptory norms. See de Heijer and Van der Wilt (above note 35), at 10. Jacob, Latty and de Nanteuil (above note 80), at 645. See on this point, Makane Moïse Mbengue “Les obligations des investisseurs étrangers”, in sfdi, L’entreprise multinationale et le droit international (Pedone, 2017), at 295-​337. See Shelton (above note 8). Acconci (above note 33), at 185.

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Jus Cogens as a Vector of Accountability of International Financial Institutions Like all international organizations, international financial institutions (ifi s) are subject to an obligation to respect peremptory norms of international law. The logic of submitting ifi s to jus cogens is undeniable: the function that jus cogens serves in international law would be undermined if States could circumvent peremptory obligations simply by creating an international organization. A loan agreement/​contract of an international development bank that was conditional on the commission of genocide would thus be void and would engage the international responsibility of the bank.218 In reality, such a theoretical hypothesis is “not inconceivable” and “cannot be entirely ruled out”.219 Because of the nature of their activities, essentially loans and financial support, it is difficult to imagine a direct violation of peremptory norms by the ifi s. The debate focuses on a potential “indirect violation” of jus cogens norms by these financial institutions. Two main hypotheses are mainly invoked: the financing of projects or activities in the course of which peremptory norms are violated, and the financing of a government that systematically engages in serious violations of peremptory norms. In each of these hypotheses, can the ifi s be considered to have breached their obligation to respect and protect jus cogens norms under international law? Our analysis will be based mainly on the example of the World Bank, because of its anteriority and the fact that its institutional texts inspired the drafting of those of the development banks set up later. As Boisson de Chazournes has demonstrated, there is an emulation phenomenon in the legal and institutional practices of the ifi s. Based on this emulation phenomenon and the harmonization and coordination endeavours, one could see emerging progressively a “droit commun” in the area of development finance.220 With the notable exception of the European Bank for Reconstruction and Development (ebrd), the international financial institutions have always been careful to indicate that their mandate is essentially related to economic growth and development and that they should take into account only economic 3.3

218 See Chapter ii of the Articles on the International Responsibility of International Organisations for Internationally Wrongful Conduct, Report of the International Law Commission, Sixty-​Third Session, General Assembly Official Records (A/​66/​10). 219 Para 1 of Commentary to Article 41. 220 Laurence Boisson de Chazournes “Partnerships, Emulation, and Coordination. Toward the Emergence of a Droit Commun in the Field of Development Finance” in Hassane Cissé, Daniel D. Bradlow, Benedict Kingsbury (eds.) World Bank Legal Reviews Vol3: International Financial Institutions and Global Legal Governance (2012).

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criteria when making a decision on whether or not to finance a country, to the exclusion of all other political considerations related to the nature of the political regime of the country in question.221 According to Ibrahim Shihata, those ifi s may not decline lending except for economic reasons whether these are project-​related or country related. Non-​lending on economic, country-​related grounds may only occur if the concerned Bank finds that the country creditworthy, lending would exceed the limits of the Bank’s lending program or the Bank’s exposure limits for the country, or when the country’s economic policies are, in the judgment of the Bank, unlikely to be conducive to economic development.222 According to this strict interpretation of the texts, the fact that a State is guilty of serious and grave breaches of peremptory norms of international law could only have an impact on the decision to grant it loans or financing if these violations have an economic impact. Thus, for example, if the commission of genocide by virtue of its scale affected the productivity and economic prospects of a State, then the World Bank and other financial institutions would take into account not the jus cogens violation itself, but its economic impact. On the other hand, a policy of apartheid and the use of slavery and forced labour, which would not result in a negative economic impact on a country’s economic indicators, would not influence the ifi’s decision being sought. Indeed, it may even be asked whether such a violation might not be an asset if, because of the low cost of the labour thus mobilized, it allowed for an economic gain. The political prohibitions provisions were enshrined in the Bank’s Articles of Agreement for two reasons that have to do with the nature of the World Bank as an ifi and as a cooperative international organization with membership from all over the world. Given the diversity of political beliefs and approaches of its membership, the Bank’s broad acceptability and its continuity required “depoliticization” of its decisions and impartiality in weighing the economic considerations which alone were to be taken in account.223 The 221 See article i and article iv Section 10 Articles of Agreement of the International Bank for Reconstruction and Development (ibrd), 27 December 1945, amended on 16 December 1965; article i, and article v Section 6 of the Articles of Agreement of the International Development Association (ida), 26 January 1960. 222 Ibrahim F.I. Shihata “The World Bank’s Protection and Promotion of Children’s Rights” in Ibrahim F.I. Shihata The World Bank in a Changing World, Vol iii: Selected Essays and Lectures (Martinus Nijhoff, 2000) vol. iii, 2000, at 447–​448. 223 Hassane Cissé “Should the Political Prohibition in Charters of International Financial Institutions be Revisited? The Case of the World Bank” in Hassane Cissé, Daniel D. Bradlow, Benedict Kingsbury (eds.), The World Bank Legal Reviews Vol 3: International Financial Institutions and Global Legal Governance (2012), at 60.

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political prohibition thus aimed at ensuring the universality of ifi s by preventing political differences from turning them into ideological instruments on this point. But the violation of peremptory norms of international law cannot be reduced to mere political considerations. It is not a question of whether a political regime is democratic or not, or whether the policy it implements in the country is conducive to the satisfaction of the needs of its citizens. Rather, it relates to behaviour that is considered by the international community as a whole to be contrary to the social order. By their very nature, i.e. their universal acceptance, taking them into account would strengthen the universality of operational policies rather than weaken them. It would indeed be paradoxical to refuse to take into account the norms accepted by the international community as a whole, on the grounds that they would lead to denying the diversity of State policies. Such an approach would be all the more paradoxical since there are examples of “non-​economic considerations” being taken into account in financing or lending decisions. This is the case, for example, of the requirement, following a Bank policy first adopted in 1984 that the World Bank does not finance projects that contravene the borrowing country’s obligations under international environmental agreements.224 Such operational policies have been rightly praised and justified as a manifestation of the Bank’s willingness to send a strong signal of the importance that it attaches to these obligations, voluntarily undertaken by the country concerned, and to contribute to an increase in national awareness of the significance of international environmental requirements.225 Should it be inferred from this that failure to take account of violations of peremptory norms would indicate a lack of commitment by the IFI’s to the values protected by those norms? Or, on the contrary, should it be inferred from this justification that if IFI’s, like the World Bank, are committed to the respect by States of their international commitments in environmental matters, they should be all the more committed to the standards considered imperative by the international community as a whole? This second option seems to be the most plausible and coherent: ifi s are obliged to act consistently with peremptory norms of international law. Indeed, although the language of the political prohibition clause appears to be absolute and does not permit exceptions, from early on “certain political 224 See World Bank Operational Manual Statement (oms) 2.36 on Environmental Aspects of Bank Work, May 1984; para. 2 Operational Policy (op) 4.36 on forestry, September 1993; para. 3 Operational Policy (op) 4.01 on environmental assessment, January 1999. 225 Ibrahim F.I. Shihata, “The World Bank’s Contribution to the Progressive Development of International Environmental Law”, in Shihata (above note 223), at 490.

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circumstances were recognized” in the World Bank practice as being “clearly relevant to the Bank’s work” and could not be disregarded. A document dated April 1968 for example, acknowledges that the World Bank “cannot ignore conditions of obvious internal political instability or uncertainty which may directly affect the economic prospects of a borrower”.226 As recalled by a former General Counsel of the World Bank, as a financial institution, the Bank, like its private-​sector counterparts, in making decisions about the investment of limited available public resources, needs to evaluate the wisdom of proposed investments. It must rely upon the analysis of all the factors that can affect investment, including the “investment climate” in the recipient country.227 In this vein, the World Bank has developed an approach that allows it to take into account a number of factors when dealing with de facto governments that might seem to go beyond its obligation to evaluate only economic considerations, and which have been explained be reference to “the Bank’s will to act as a good and responsible international citizen”.228 Being a “good and responsible citizen” necessarily and compulsorily implies respecting and protecting the peremptory norms. The approach of the World Bank also demonstrates that “political prohibition” or “only economic considerations” are not absolute and that adjustments are possible. This has led some authors to accuse the ifi s of using the “political prohibition” clause as a political tool at the service of interests; those institutions would have an interpretation that varies according to the policies of the major powers that govern them.229 A more coherent and non-​discriminatory approach is therefore needed. The political prohibition does not prevent ifi s from considering political issues that have economic consequences or implications, so long as this is done in a non-​partisan, non-​ideological, and neutral manner. It is consistent with the Articles of Agreement and statute of those institutions that the decision processes should incorporate social, political, and any other relevant factors which may have an impact on their economic

2 26 See Cissé (above note 224), at 62. 227 Roberto Danino “The legal Aspects of the World Bank’s Work on Human Rights: some Preliminary Thoughts” in The World Bank Legal Review Vol II: Law, Equity, and Development, (Martinus Nijhoff Publishers, 2006), at 304. 228 Cissé (above note 224), at. 65–​66. See also Mac Darrow, “A Human Rights-​Based Approach to Development: Theoretical and Operational Issues for the World Bank”, in Shihata The World Bank Legal Review Vol ii(above note 242), at 389. 229 See for example Bhupinder S. Chimni “IFIs and International Law: a Third World Perspective” in Daniel D. Bradlow and David B. Hunter (eds.) International Financial Institutions and International Law (Kluwer Law International, 2010), at 40.

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decisions.230 Because of their importance in the eyes of the international community, in whose service the IFI’s are, jus cogens should, therefore, be an essential element of evaluation for the granting of loans or financing to States. “Political prohibition” should, therefore, be redefined, not as the refusal to take into account possible violations of peremptory norms by a government, but as the requirement for taking into account such norms in a neutral and impartial way. Allegations of violations of peremptory norms, to be taken into account by ifi s in their operational policies, should emanate from a limited number of institutions and bodies such as the UN General Assembly and Security Council, or from the judicial institutions such as the icj or the regional courts with territorial jurisdiction. This would preserve the universality of the ifi s while placing them at the service of the universal values upheld by the community of States as a whole. An issue of particular interest is that of the responsibility of ifi s in connection with the acts of a borrowing State. ngo s have indeed accused the ifi s of committing violations of jus cogens norms because they supported governments that, in their view, would commit serious violations of peremptory norms of general international law.231 The bulk of the arguments of these ngo s can be grouped under the hypotheses outlined in Articles 14 to 16 Articles on the Responsibility of International Organisations. According to these provisions, an ifi would itself be guilty of a violation of a peremptory norm in four cases: it aids or assists a State in the commission of breaches of jus cogens by the State; it directs and controls a State in the commission of such breaches; it coerces a State to commit breaches of jus cogens; it adopts a decision binding a member State to commit serious breaches of jus cogens. Concerning the first hypothesis, of aid and assistance in committing an internationally wrongful act, the Special Rapporteur, admitted that “an international organization could incur responsibility for assisting a State, through financial support or otherwise, in a project that would entail an infringement of human rights of certain individuals”.232 Thus, the funding by an ifi of a project that would be carried out by reducing a population to slavery, to implement a policy of apartheid or that would result in genocide could make the institution concerned a co-​author of the violation of jus cogens norms that has occurred. But for the ifi’s responsibility to be upheld, the criteria for assistance/​aid under Article 2 30 See Danino (above note 228), at 305–​309. 231 See for example, International Labor Rights Forum, Financing Forced Labor: The Legal and Policy Implications of Work Bank Loans to the Government of Uzbekistan, September 2016. 232 Third Report of the Special Rapporteur (Giorgio Gaja) on Responsibility of International Organizations(A/​c n.4/​553) (2005), at para. 28.

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16 of the Articles on State Responsibility, to which the commentaries to the Articles on the Responsibility of International Organisations, must be met.233 As the World Bank has indicated to the ilc, “organizations providing financial assistance do not, as a rule, assume the risk that assistance will be used to carry out an international wrong, as the articles on the responsibility of States for internationally wrongful acts clearly provides”.234 Concerning the control and direction of a State under Article 15 ario, it could make an ifi liable for the breach of a peremptory norm if the institution adopts a binding decision which constitutes a form of direction or control of a State in the commission of violation of a jus cogens norm. In addition to the condition of knowledge by the ifi of the serious planned violation, it would also be necessary, according to the commentary of the ilc, that the State which is the addressee of the decision is not given discretion to carry out conduct that, while complying with the decision, would not constitute an internationally wrongful act.235 The purely theoretical hypothesis, which is difficult to imagine in practice, would be that of a structural adjustment plan imposed by a financial institution, which would aim both at leading to a violation of a peremptory norm while leaving no room for manoeuvre for the State to avoid this violation. The same conditions apply to the hypothesis of a binding decision leading to a violation of Article 17 ario. Finally, in the last hypothesis, coercion by an ifi on a State to commit a serious breach of a peremptory norm can only be carried out if, first, the coercive action is unlawful. This means that a sanction or other penalty imposed by a Development Bank or the International Monetary Fund following the rules governing them and adopted by the Member States will only be able to satisfy the conditions of Article 16 (a) ario in exceptional circumstances.236 As with direction and control, the borrowing State should have no choice but to comply with the instructions of the ifi without being able to avoid the occurrence of a breach of a peremptory norm of international law. Then, as in the case of other hypotheses, the ifi must have acted knowing the result obtained, i.e. the violation of a peremptory norm of international law. It is clear that in practice

233 See para. 3 of the Commentary to Article 16 of the Articles on States Responsibility (above note 54). 234 Responsibility of International Organizations: Comments and Observations Received from International Organizations(A/​c n.4/​637) 14 February 2011, para. 28. 235 Paras 5–​6 of the Commentary to Draft Article 16 of the Draft Articles on the Responsibility of International Organizations, Report of the International Law Commission, Sixty-​Third Session, General Assembly Official Records (A/​66/​10), 2011. 236 Id., at paras. 3-​4.

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it is particularly difficult for these conditions to be met and for an ifi to be held liable for the violation of jus cogens norms by a borrowing State. This should not, however, be interpreted to mean that jus cogens norms may not have some relevance in exceptional circumstances. Despite the difficulty of being able to establish conclusively a violation of peremptory norms of international law by the IFI’s, it is in the field of the legitimacy of their actions that they have very often been criticised.237 This has resulted in the gradual incorporation of more non-​economic considerations into the operational policies of these institutions and the establishment of accountability policies both internally and externally. There was also demand for more transparency on the part of ifi s and the call for them to be more accountable. The World Bank’s Inspection Panel was set up with this accountability in mind.238 Building on the experience of the World Bank Inspection Panel, regional development banks put into place similar types of accountability mechanisms.239 The mandate of the Inspection Panel and other similar institutions within IFI’s is clearly not to ensure compliance with international law by financial institutions, but to ensure compliance with their own policies. These bodies can allow peremptory norms of international law to be taken into account only to the extent that they are incorporated into the operational rules and policies of the IFI’s. For the World Bank Inspection Panel, for example, there is a breach of an international obligation only when an act of the Bank is not in conformity with its rules. In other words, even if the Bank’s policies may reference international environmental obligations, the Panel can render judgment only upon the Bank’s own rules. Although, IFI’s have obligations under international law, the Panel is mindful of the imperative to apply only the rules of the Organization.240 As we have seen, jus cogens norms are far from 237 On the link between legitimacy, protection of core values of international legal order and the idea of constitutionalization of international law, see Peters, above note 3, p. 610; Geir Ulfstein, “Institutions and Competences”, in Klabbers, Peters and Ulfstein (above note 3), at 62–​63. 238 Resolution No 93-​10 ibrd and Resolution No. 93-​6 ida establishing the World Bank Inspection Panel, 22 September 1993. See on the issue, Ibrahim F.I. Shihata, “The World Bank Inspection Panel –​Its Historical, Legal and Operational Aspects”, in Shihata The World Bank in a changing world, vol. iii (above note 223), at 548–​549; Evarist Baimu and Aristeidis Panou, “Responsibility of International Organizations and the World Bank Inspection Panel. Parallel Tracks Unlikely to Converge?” in International Financial Institutions and Global Legal Governance, The World Bank Legal Review, above note 233, pp. 154–​155. 239 See Boisson de Chazournes (above note 221) at 179–​182. 240 See for example World Bank Inspection Panel Investigation Report, Chad: Petroleum Development and Pipeline Project (Loan No 4558-​c d), Management of the Petroleum

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being integrated into ifi s rules. Consequently, the Inspection Panel and similar institutions, because of the limitations of their jurisdiction ratione materiae, their administrative rather than jurisdictional nature, and their lack of autonomy, are far from being effective and efficient instruments for ensuring IFI’s compliance with jus cogens norms and international law in general.241 However, despite the fact that the mandate of these inspection bodies is limited to the monitoring of compliance by IFI’s of their policies and internal rules, the referral to them remains politically unpopular with borrowing States. Aware of this reality, ngo s and other activists are using the threat of their possible referral to get the governments concerned to pay greater attention to situations where serious violations may be committed in the context of certain projects. Unfortunately, this also leads to IFI’s being more reluctant to allow investigations to be opened because of the political significance of such investigations.242 4

Concluding Remarks: towards the Emergence of an Economic Jus Cogens?

This study was carried out mainly by investigating the effects of jus cogens in IEcL. It seems appropriate, at the time of its conclusion, to ask whether the relational dynamic also plays the other way. One could legitimately ask whether there are no norms in the field of international economic law that could claim qualification of peremptory norms of international law. One can note the emergence of a general prohibition in the economic and business world of certain types of behaviour considered contrary to “business and trade ethics”. Though not settled, this is the case, for example, of permanent sovereignty over natural resources, which has been held in arbitral awards to be a Economy Project (Credit No 3316-​c d), Petroleum Sector Management Capacity-​Building Project (Credit n° 3373-​c d), 17 July 2002, at paras. 210-​215. For a general analysis, Baimu and Panou (above note 237), at 162–​163. 241 See Agostino Latino “Up-​Keeping Non-​Economic Values in Development Assistance: Does the World Bank Practise what it Preaches? Answers from the Inspection Panel”, in Sacerdoti, Acconci, Valenti and de Luca (above note 33), at 228-​233; Ibrahim F.I. Shihata, “The Resolution Establishing the World Bank Inspection Panel –​Its Drafting History and Interpretation” in Ibrahim F.I Shihata The World Bank in a Changing World: Selected Essays and Lectures, Vol ii (Martinus Nijhoff Publishers, 1995), at 275–​323. 2 42 See Ibrahim F.I. Shihata “The World Bank Inspection Panel –​Its Historical, Legal and Operational Aspects” in Shihata The World Bank in a changing world, vol. iii (above note 223), at 576–​577.

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peremptory norm.243 The Kimberley Process is another example of the development of measures in international trade to ensure that wto rules are not used to facilitate the flow of “blood diamonds” from conflict zones, the sale of which contributes to fuelling deadly conflicts.244 This is an indication of the limits of what may or may not be acceptable within the international trade regime. Perhaps the most significant example is the prohibition of corruption, which is subject to a general prohibition in the field of IEcL, with no possibility of derogation. In the field of international investment, the arbitral award World Duty-​Free vs. Kenya is symbolic of IEcL’s hostility to corruption and its link to a public order specific to the economic world.245 In the field of finance and development support, the fight against corruption is one of the vectors for the development of a “droit commun” of ifi s.246 Thus, there are efforts for cooperation and coordination of measures to address corruption.247 A set of initiatives can be identified at the global level that demonstrates a general rejection of corruption and related offences such as money laundering. Numerous treaties have been adopted both universally and regionally.248 There is thus a proliferation of treaty instruments that clearly indicate an opinio juris that corruption is an evil that must be combated, and it is hard to imagine that an agreement concluded between two States aimed at promoting corrupt practices between them would be valid. At the judicial level, the cases “biens mal acquis” have given rise to litigation pending before the International Court of Justice between France and Equatorial Guinea.249 As for jus cogens norms such as the prohibition of genocide or torture, ngo s and human rights activists are 243 See El Paso Energy International Company v. The Argentine Republic, icsid Case No. arb/​ 03/​15, Award of 31 October 2011, at para. 168; The Texaco Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic, Award of 19 January 1977, at para. 75-​79; The American Independent OilCompany v. The Government of the State of Kuwait, Final Award of 24 March 1982, at para. 90. 244 wto General Council, Waiver concerning Kimberley Process Certification Scheme for Rough Diamonds, decision of 15 May 2003, wto Doc. wt/​L/​518. See Nadakavukaren Schefer (above note 146), at 391–​450. 245 See also Argentine Engineer v. British Company,icc case No. 110, 1963. 246 Boisson de Chazournes (above note 221), at 183–​185. 247 Joint Statement by the Heads of the African Development Bank Group, Asian Development Bank, European Bank for Reconstruction and Development, European Investment Bank Group, Inter-​American Development Bank Group, International Monetary Fund, and World Bank Group, Singapore 17 September 2006. 248 See the list at https://​guides.ll.georgetown.edu/​c.php?g=363494&p=2455875. 249 Immunities and Criminal Proceedings (Equatorial Guinea v. France),Preliminary Objections, icj Reports 2018, p. 292..

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advocating for universal repression of corruption and misappropriation of public funds, based on absolute universal jurisdiction.250 Should this lead to the conclusion that there is a jus cogens norm for corruption? Would it be useful to develop an economic jus cogens? It is difficult to answer such a complex question in the conclusion of a study. The hope is that a debate on economic jus cogens is sparked. The question remains whether there is something about the discourse on peremptory law that advocates for reluctance. On one hand, it is easy to imagine that the demand for a new peremptory norm might arise from a particular sector, from actors in a specific field of international life, and then “prospers” and gradually be accepted by the international community as a whole as a norm from which no derogation is permitted. From this point of view, IEcL can, therefore, be the bearer of values that will gradually impose themselves as “cogens”. The objections that might be raised regarding the admission of the prohibition of corruption or permanent sovereignty over natural resources as jus cogens norms are valid for peremptory norms that are today uncontested. Against the functions of jus cogens to denote core values of the international community, the objection is voiced that it expresses more unity than the heterogeneity of the international community of States admits, by either reducing this essential core to the obvious or by hiding difference behind vague terms.251 To be recognized as a norm of jus cogens, the norm under consideration must be neither clear in all its aspects and contours, nor must it enjoy absolute respect without being called into question by State practice. There is no method generally accepted or even established in positive law for identifying community interest. It is sufficient that the “community of States as a whole”, to use the formula of Article 53 vclt, be convinced that it is a value that must be protected. In IEcL, as in other branches of international law, there are norms which are of such importance to the actors in international economic relations. On the other hand, it should be remembered that any international norm is binding in itself without the need to be “cogens”. An inflation of jus cogens could give the impression that this is the attribute that an international norm must have to be binding in international law. This is not so: if one were to take jus cogens in the simple sense of bindingness of legal norms one would find a plethora of jus cogens, all the rules of international law pertaining to the body of peremptory norms. As it has been pointed out, from the point of

2 50 See Koagne Zouapet (above note 127). 251 Kadelbach (above note 16), at 169.

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view of compliance and implementation, there is no fundamental difference between jus cogens and jus dispositivum in international law.252 It is reasonable to ask whether the establishment of the prohibition of corruption as a jus cogens norm would change the universal condemnation of corruption and its application by IEcL adjudicators. Non-​derogability, understood as transcending bilateralism, is a necessary but not a sufficient criterion for peremptory norms and norms creating obligations erga omnes: non-​derogability is a quality that peremptory norms share with other norms of general international law. The distinct feature of obligations erga omnes, deriving from peremptory norms, is not that they are owed to all States, but that, in case of breach of such an obligation, the corresponding rights of protection are in possession of each and every State or of the international community.253 It can hardly be assumed that the violation of the prohibition of corruption, or other norms of IEcL applying for jus cogens status, would have such an effect. Focusing on the customary nature of the prohibitions evoked here rather than their jus cogens character could, therefore, be equally if not more effective. Jus cogens is a “precious asset” which should not be dilapidated in addressing petty conflicts of interests which pertain to the daily occurrences in a human community. Jus cogens should be reserved as an instrument to address borderline situations where law and morals join to condemn attacks against the foundational bases of the international legal order as the fundamental legal device designed to ensure a dignified life for all human beings.254 We share Alain Pellet’s position when he points out that jus cogens “can certainly not be a legislative instrument […] a tool to change the law, a means to the progress of law. […] Jus cogens can avoid that unacceptable norms be applied, it is of no use to promote ‘better norms’ ”.255 Indeed, “it would be futile to conceive of jus cogens as a device suited generally to make the world a better place”.256 The fact that a set of rules binding on a particular community are, for that community, of a special status does not make that set of rules jus cogens. Neither is it useful to have a fragmentation of jus cogens in a multitude of different systems, each filled by the imagination of the respective adjudicators.It is with this in

2 52 253 254 255

Cottier, (above note 1), at 348. Kleinlein (above note 58), at 192. Tomuschat (above note 22), at 32–​33. Alain pellet, “Comments in Response to Christine Chinkin and in Defense of Jus Cogens as the Best Bastion against the Excesses of Fragmentation” (2006) 17 Finnish Yearbook of International Law 83, at 84. 256 Tomuschat (above note 22), at 37.

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mind that studies on the emergence of peremptory norms of international law specific to international economic law would need to be conducted. In the end, the conclusion we draw at the end of this study is not new and Thomas Cottier had already highlighted it in a study: focusing on mechanisms to enforce compliance with jus cogens, IEcL offers important avenues of support. The mechanisms of IEcL are suitable to serve a number of peremptory norms.257 But, at the same time, as in other branches of international law, the authority of jus cogens mainly rests with voluntary compliance and to a large extent depends upon the will and convictions of governments.258 The main point of this study was to show that IEcL is, at least as far as jus cogens is concerned, similar to the international law to which it belongs: its techniques are not sufficient to give jus cogens its rightful place. The techniques on which the IEcL is based, like all other branches of international law, “restent parfois (souvent) à ce point grossières qu’elles ne sont guère en mesure de conférer au jus cogens la résonance, l’amplitude qui devrait être la sienne”.259 However, as has been amply demonstrated, IEcL adjudicators have the resources and means to progressively participate in the construction of a true “ordre public international”. In the meantime, whether in terms of shortcomings or advances, this study has shown that IEcL is not an isolated island, but a branch of international law from which it draws its sap. 257 Thomas Cottier, “Trade and Human Rights: a Relationship to Discover” (2002) 5 Journal of International Economic Law 111, at, pp. 122–​123. 258 Cottier (above note 1), at 353. 259 Verhoeven (above note 23), at 160.

Chapter 20

Environmental Protection as a Peremptory Norm of General International Law Is It Time?

Nilufer Oral 1

Introduction

The concept of peremptory norms of general international law (jus cogens) is directly tied to the post-​World War ii international order built in the aftermath of the horrors of crimes committed against humanity. The post-​World War ii period saw the introduction of new legal norms such as the crime of genocide, as codified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.1 Most notable was the work of the International Law Commission to introduce the concept of peremptory norms of general international law (jus cogens) in the draft text that would become Article 53 of the Vienna Convention on the Law of Treaties (vclt).2 Peremptory norms of general international law are norms that have hierarchical superiority to other norms of international law as they reflect fundamental values of the international community and cannot be derogated from unless by a norm having similar qualities. In 2015, the International Law Commission decided to include the topic of peremptory norms of general international law (jus cogens) into its programme of work and appointed Mr. Dire Tladi as Special Rapporteur.3 The Commission adopted a set of draft conclusions at its first reading in 2019 together with commentaries, which includes a non-​exhaustive list of peremptory norms of general international law (jus cogens).4 The list was limited to peremptory norms that were previously identified by the Commission and provided that

1 1948 Convention on the Prevention and Punishment of the Crime of Genocide. 2 1969 Vienna Convention on the Law of the Treaties. 3 The original title of “Jus Cogens” was changed to “Peremptory norms of general international law (Jus Cogens) at the sixty ninth session of the International Law Commission. 4 Draft Conclusions on Peremptory Norms of general international law (jus cogens), adopted by the Commission on first reading, Report of the International Law Commission, Seventy First Session, General Assembly Official Records (A/​74/​10)(2019), at Chapter v.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_021

576 Oral it “[w]‌ithout prejudice to the existence or subsequent emergence of other peremptory norms of general international law (jus cogens).”5 The matter of ensuring the list would not preclude the emergence of new peremptory norms was important. In this context, among the possible candidates is environmental protection. The question is whether we have come to that point in the evolution of international law to recognize that the destruction of the natural world –​the environment6 –​should be recognized as a peremptory norm of general international law (jus cogens). The importance of protecting the environment, its natural resources, wildlife, and the global commons for the overall welfare of humanity has been recognized for decades, formally first commemorated during the historic 1972 United Nations Conference on the Human Environment held in Stockholm, Sweden.7 Since 1972, destruction of the environment on a global scale has accelerated, despite the proliferation of global and regional instruments alongside national laws addressing different environmental concerns. As detailed in the Chapter, recent scientific reports on climate change and the loss of biodiversity highlight the threat to the international community as a whole if such widespread harm to the environment continues. The topic of environmental protection and peremptory norms of general international law has received somewhat limited attention in scholarly literature. As will be shown, the notion that certain environmental crimes could rise to the same level of jus cogens norms such as the prohibition of crimes against humanity, dates back to the early work of the International Law Commission. This Chapter will begin, in the next section, by a brief description of the nature of peremptory norms of general international law (jus cogens). This brief description is followed by an overview of the Commission’s work on the environment as an international crime. That section will cover, first, former article 19 of the Draft Articles on State Responsibility, and second, the Draft Code of Crimes against the Peace and Security of Mankind and its definition of crimes against humanity. Thereafter, the Chapter will outline certain key provisions of the current work of the International Law Commission on peremptory norms of general international law (jus cogens). This Chapter will then seek to provide examples in areas of environmental protection that give 5 Id. Draft Conclusion 23. 6 Recognizing that there is no universally accepted definition, the term “environment” will be used in this Chapter to mean natural resources, habitats, ecosystems, biodiversity, wildlife and the global commons. 7 Report of the United Nations Conference on the Human Environment, Stockholm, (A/​ Conf.48/​14/​Rev.1) (1972).

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support to the recognition of the protection of the environment, under certain circumstances, as a peremptory norm of general international law (jus cogens). Finally, the Chapter will conclude that nearly fifty years after the 1972 Stockholm Declaration and the recognition by the Commission that harm to the environment was at the same level as other crimes against humanity, the situation has only worsened. The time has come to revisit the work started by the Commission decades ago and begin the process to determine the criteria for when harm to the environment constitutes a violation of a peremptory norm of general international law. 2

The Nature of Peremptory Norms of International Law (Jus Cogens)

The concept of peremptory norms of international law (jus cogens), that is a set of non-​derogable norms binding on all States regardless of their consent, found prominence following the horrific war crimes committed during World War ii and the resulting widespread human suffering.8 The international community coalesced and adopted landmark instruments of international law reflecting certain fundamental values of humanity, such as the UN Charter and the 1948 Genocide Convention.9 However, the notion that certain fundamental values in international law lay beyond the traditional principle of jus dispositivum of sovereign States were brought into the mainstream of international law by the work of the International Law Commission in its work on the Law of Treaties, which was ultimately codified in the Article 53 of the vclt. The International Law Commission served as the architect of this landmark treaty and the concept of jus cogens. The notion that legal norms of international law could be “non-​derogable” falls afoul of the strict positivist view that sees international law as direct emanation of the sovereign will, jus dispositivum.10 Whereas, the idea of 8 9 10

Alfred Verdross first introduced the concept of peremptory norms (jus cogens) in Alfred Verdross “Forbidden Treaties in International Law” (1937) 31 American Journal of International Law 571, at 572. 1951 Convention on the Prevention and Punishment of the Crime of Genocide. See the debate in the legal literature between the proponents of legal positivism and natural law theory: Alfred Verdoss “Jus Dispositivum and Jus Cogens in International Law” (1966) 60 American Journal of International Law 55; Dan Dubois “The Authority of Peremptory Norms in International Law: State Consent or Natural Law?” (2009) 78 Nordic Journal of International Law 133; Levan Alexidze “Legal Nature of Jus Cogens in Contemporary International Law” (1983) 172 Recueil des Cours de la Académie de Droit International 219, at 259–​263; Bruno Simma, “From Bilateralism to Community Interest in International Law” (1994) 250 Recueil des Cours de la Académie de Droit International

578 Oral peremptory norms is firmly ensconced in the legal tradition of natural law and the notion that there are certain fundamental values that are beyond the malleable will of sovereign States. At the very heart of peremptory norms is the role of fundamental values and the interests of the international community as a whole. As Justice Cançado Trinidad writes, peremptory norms create a jus gentium, an international law for humankind.11 The International Law Commission described the obligations related to peremptory norms for State responsibility as necessarily affecting the vital interests of the international community as a whole and may entail a stricter regime of responsibility than otherwise would apply to internationally wrongful acts.12 It is within this context that we must place protection of the environment as it has evolved over time to occupy its place as a fundamental value essential to protection of the vital interests of the international community, alongside prevention of genocide, torture, apartheid and others. This is not at all a new or radical proposal. In the 1970s, the International Law Commission had placed the environment alongside these norms to be recognized as international crimes and that were against the peace and security of mankind. 3

Preservation of the Environment and International Crimes in the Work of the International Law Commission

3.1 Articles of State Responsibility The Commission devoted some 52 years to the preparation and adoption of the landmark 2001 Articles on State Responsibility. During the 1970s, after the debate on eighth report of Roberto Ago, the International Law Commission adopted Draft Article 19 which provides a list of international crimes and international delicts that would trigger State responsibility.13 Draft Article 19(2) defined an international crime as:

11 12 13

221, 289–​293; Lauri Hannikainen Peremptory Norms ( Jus Cogens) in International Law (Finnish Lawyers’ Publishing Company, 1988), at 207. Antônio Augusto Cançado Trindade International Law for Humankind: Towards a New Jus Gentium: The Hague Academy of International Law Monographs (3rd revised Edition, Brill/​Nijhoff, 2020). See generally, Chapter iii of Part Two of the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001), at Chapter iv. Draft Article 19 of the Draft Articles on State Responsibility provisionally adopted in 1976, Report of the International Law Commission, Twenty-​Eighth Session, General Assembly Official Records (A/​31/​10) (1976), at 95. The Commissions consideration of Draft Article is discussed in this volume in Helmut Philipp Aust “Legal Consequences of Serious Breaches

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An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole, constitutes an international crime. Although Draft Article 19 does not explicitly refer to jus cogens, the reference to “fundamental interests of the international community” and recognition by the “community as a whole” echoes the language of Article 53 of vclt on peremptory norms (jus cogens) as well as Draft Conclusion 3 of the ilc Draft Conclusions of 2019, the latter making express reference to fundamental interest. The list of international crimes listed in Draft Article 19(3) included “a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas.”14 There was little controversy in the Commission to include crimes against the environment among the list of international crimes. The Commission adopted Article 19 in toto at the first reading in 1976.15 The list of international acts that constituted serious breaches of the peace and security of mankind in Article 19 also included, the prohibition of aggression;16 violations of the right to self-​determination such as the prohibition of forced colonialism;17 serious breaches on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as the prohibition of slavery, genocide, and apartheid.18 Notably, these were also the crimes listed in the Draft Code of Offenses Against the Peace and Security of Mankind as discussed below, some of which found their way into the Rome Statute. Moreover, the right of self-​determination, prohibition against apartheid, slavery, genocide are recognized as peremptory norms of general international law (jus cogens).19 The inclusion of the “safeguarding and preservation of the human

14 15 16 17 18 19

of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission” (Chapter 9). Draft Article 19(3)(d) of the 1976 Draft Articles on State Responsibility (above note 13). Id. Id., Draft Article 19(3)(a). Id., Draft Article 19(3)(b). Id., Draft Article 19(3)(c). See, as regards the prohibition of genocide as a rule of jus cogens, Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, icj Reports 2006, p.32 para. 64. See also, as regards the prohibition of apartheid and racial discrimination, Case Concerning Barcelona Traction, Light and Power Company, Limited, icj Reports 1970, p. 3, at para. 34 (noting the prohibition’s

580 Oral environment, such as those prohibiting massive pollution of the atmosphere or of the seas” is quite relevant for this reason. In the Commentary to Draft Article 19(3), the Commission explains the post-​World War ii view for recognizing two completely different regimes of responsibility in international law. The first would “apply in the case of a breach by a State of one of the obligations whose fulfilment is of fundamental importance to the international community as a whole” listing as examples, the obligations to refrain from acts of aggression, genocide and apartheid.20 By contrast, the Commentary explains that the second regime entails the failure of the State “to fulfil an obligation of lesser and less general importance.”21 At the time, the members of the Commission supported the view that certain acts by the State that resulted in massive harm to the natural environmental were in the first group of serious crimes of “fundamental importance to the international community as a whole” –​in other words peremptory norms (jus cogens). When identifying the separate category of “particularly serious wrongs”, distinguished from the “range of less serious wrongs”, which included the prohibition of crimes such as genocide, apartheid and other inhuman practices of that kind, and the notion of the right to self-​determination, the Commission also included the protection of the environment. The Commission provided the contextual reasons that

20 21

erga omnes character); A v. Department of Economic Affairs, Judgment of the Swiss Federal Supreme Court, 23 January 2008, at para. 8.2; Committee of US Citizens Living in Nicaragua and Others v. President Reagan and Others, Judgement of the United States Court of Appeals for the District of Columbia, 14 October 1988, at 717; Sarei and Others v. Rio Tinto, Judgment of the United States Court of Appeals for the Ninth District, 25 October 2011, at 19378. See as regards the right to self-​determination, East Timor (Portugal v. Australia), icj Reports 1995, p. 90, at para. 29 (as to its erga omnes character); 2 bvr 1038/​01, Judgement of the German Federal Constitutional Court, of 26 October 2004 (describing the right to self-​determination as a rule of jus cogens). See, as regards the prohibition of torture as a rule of jus cogens, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, icj Reports 2012, p. 422, at para. 99; Prosecutor v. Anto Furundžija, Judgment of the International Tribunal for the Former Yugoslavia, 10 December 1998, at paras. 153-​156; Al-​Adsani v. the United Kingdom, Judgment of the European Court of Human Rights, 21 November 2001, at para. 61. See as to the prohibition of slavery, João Ernesto Christófolo Solving Antinomies between Peremptory Norms in Public International Law (Schulthess, 2016), at 216 (“The prohibition of slavery is placed among the first undisputable peremptory norms that emerged in contemporary international law”). Para 6 of the Commentary to Draft Article 19 of 1976 Draft Articles on State Responsibility (above note 13). Id.

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the requirements of economic and social development on all sides and the marvellous achievements, but also the terrible dangers, of scientific and technological progress have led States to realize the imperative need to protect the most essential common property of mankind and, in particular, to safeguard and preserve the human environment for the benefit of present and future generations. 22 According to the Commission, States had cast the need to safeguard and preserve the human environment as an “imperative need”. Following its eloquent explanation of the need for a separate category of crime, the Commentary enters into a detailed discussion of the emergence and codification of the concept of jus cogens in Article 53 of the vclt and the importance of the preservation of the environment.23 While a bit lengthy, the words of the Commission written in 1976 are even more relevant in 2020 and should be quoted in full: The risks to which the environment is exposed by man armed with his present resources are well known: the pollution, by one means or another, of vast areas of the atmosphere, the sea and the land; the destruction of fauna over huge areas in the oceans, and thus of essential sources of food for whole populations; the transformation of fertile regions into arid and unproductive land; the spread of poisons, bacteria and other chemical agents fatal to man or animals; modifications of weather and climate; and the degradation of groundwater supplies and of the quality of drinking water and irrigation water. These are just examples, for what can happen is beyond imagination. Frequent meetings of scientists and diplomats have been sounding the alarm on this subject for many years, and increasing efforts are being made, in particular, in the United Nations to bring about an obligation upon States to refrain from certain practices and also to see to it that their subjects observe certain prohibitions.24 The following final statement leaves no doubt that the Commission viewed the preservation of the human environment to have all the attributes of a peremptory norm of international law. In view of the foregoing, it seems undeniable that the existing rules of general international law on the subject and those which will of necessity 22 23 24

Id., at para.15. Id., at paras. 16-​19. Id., at para. 32.

582 Oral be added to them in the future are bound to be regarded to a great extent as "peremptory" rules by the international community as a whole. It seems equally undeniable that the obligations flowing from these rules are intended to safeguard interests so vital to the international community that a serious breach of those obligations cannot fail to be seen by all members of the community as an internationally wrongful act of a particularly serious character, as an "international crime", a crime no less reprehensible than some of those which are the subject-​matter of the legal instruments already mentioned.25 In the Fourth Report, on State Responsibility, the Special Rapporteur, Mr Riphagen, observed that while the international community as a whole may recognize certain acts of a State as international crimes, he acknowledged the lack of consensus on issues such as the appropriate punishment.26 He provided examples of serious crimes that were in “fields of ‘fundamental interests of the international community’ ”, which included “the safeguarding and preservation of the human environment” in addition to “safeguarding the human being “ or “safeguarding the right of self-​determination of peoples.27 Some twenty years later Draft Article 19 and its list of international crimes would disappear from the Articles on State Responsibility having proven controversial and divisive.28 In the early years that Draft Article 19 was discussed, there was no objection to including the safeguarding and preservation of the human environment as a serious international crime alongside the other listed international crimes.29 Some of the key sources of debate over Draft Article 19 included the definition of “crimes”, the distinction between “crimes” and “delicts”,30 doubts over the notion of criminal responsibility of a State,31 as well 25 26 27 28 29 30 31

Id., at para. 32. Fourth Report of the Special Rapporteur (Willem Riphagen) on State Responsibility: The Content, Forms and Degrees of International Responsibility (A/​c n.4/​366 and Add.1 and Add.2) (1983), at para. 58. Ibid. See James Crawford “Revising the Draft Articles on State Responsibility” (1999) 10 European Journal of International Law 435; Georges Abi-​Saab “The Uses of Article 19” (1999) 10 European Journal of International Law 339. Report of the International Law Commission, Fiftieth Session, General Assembly Official Records (A/​53/​10) (1998), at paras. 243-​245. Id., at paras. 243-​245 and paras. 260-​262. There was disagreement on whether penal liability and sanctions for serious international breaches could be imposed on States or should only be imposed on individuals as States are not susceptible to such criminal liability or penal sanctions. Id., at paras.

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as the consequences of an international crime.32 The concept of State crime, which proved to be the most debated aspect of Draft Article 19 was replaced with the concept of “Serious breaches under Peremptory norms” in the 2001 version of the Draft Articles on State Responsibility.33 The final version as adopted under article 40 had transformed the international crimes and delicts under Draft Article 19 into a serious breach by a State of an obligation arising under a peremptory norms of general international law.34 The Commission offers examples such as the prohibition against torture, intransgressible rules of international humanitarian law, and the respect of self-​determination as examples of peremptory norms.35 Although, the protection of the environment is not mentioned, the Commission did go on to stress these were not meant to be exhaustive and that Article 53 of the vclt had contemplated the emergence of new peremptory norms of international law.36

248-​260. See also Seventh Report by Special Rapporteur (Gaetano Arangio-​Ruiz) on State Responsibility (A/​c n.4/​469) (1995), at para. 122. 32 Members who opposed the retention of Draft Article 19 considered that “the consequences of international crimes of States simply should not be covered by the draft on State responsibility,” because “the acts qualified as examples of crimes in Article 19 … were of such a nature as to fall into one or other of the situations envisaged in Article 39 of the Charter of the United Nations as conditions for Security Council action under Articles 40 and the following. In other words, the identification of crimes and their substantive and procedural consequences would fall totally under the provisions of Chapter vii of the Charter. Consequently, to provide for crimes in a convention on State responsibility would, according to that theory, be superfluous and contrary to the Charter.” See, the introduction of the Report by the Special Rapporteur (Arangio-​Ruiz) on State Responsibility (A/​ cn.4/​s r.2436) (1996), at para. 4. The 1980 Draft Articles adopted at first reading included Part iv on international crimes and provides for consequences in Article 51 and 52. Part 1 of the Draft Articles adopted by the ilc on first reading at its thirty-​second session, in 1980, and titles and texts of Parts 2 and 3 of the Draft Articles as provisionally adopted by the Drafting Committee on first reading at the forty-​eighth session, in 1996. There was also the concern that the international system at the time lacked a prosecutorial institution such as a criminal court endowed with necessary jurisdiction over States. See Seventh Arangio-​Ruiz Report (above note31), at para. 122. 33 Chapter iii of Part Two of the Articles on State Responsibility (above note 12). 34 Id., Article 40 provides as follows “(1) This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. (2) A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil the obligation”. 35 Id., para 5 of the Commentary to Article 40. 36 Id., Para 6 of the Commentary to Article 40.

584 Oral From the Code of Offenses against the Peace and Security of Mankind to the Rome Statute The General Assembly in 1981 gave the Commission a mandate to continue its work on the Draft Code of Offenses against the Peace and Security of Mankind, originally commenced in 1947.37 Mr. Doudou Thiam, the Special Rapporteur,38 in his Second Report, identified two categories of offenses against the peace and security of mankind: the first were those that were already recognized in the 1954 draft Code and the second were those recognized by the international community since 1954.39 In the latter category, the Special Rapporteur included “acts causing serious damage to the environment”.40 The first set of draft articles prepared by the Special Rapporteur in his Fourth Report in 1986, included as a crime against humanity “[a]‌ny serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment”.41 In his Seventh Report, still under the groupings of crimes against humanity, the Special Rapporteur introduced changes that limit the scope to “intentional” and “serious” harm to the human environment.42 After discussions at the Drafting Committee, Draft Article 14(6) became Draft Article 26, which under the chapeau of “[w]ilful and severe damage to the environment” provided that “[a]n individual who wilfully causes or orders to cause widespread, long-​term and severe damage to the natural environment shall, on conviction thereof, be sentenced [to …].”43 3.2

37

At its thirty-​ninth session in 1987, the International Law Commission amended the title of the English text of the “Draft Code” from “Draft Code of Offenses Against the Peace and Security of Mankind” to “Draft Code of Crimes against the Peace and Security of Mankind. (U.N. Doc. A/​43/​10) (1988). 38 Draft Code of Offences Against the Peace and Security of Mankind, UN General Assembly Resolution 36/​106 (1981). 39 Second Report of the Special Rapporteur (Doudou Thiam) on the Draft Code of Offences against the Peace and Security of Mankind (A/​c n.4/​377 and Corr.1) (1984), at paras. 15-​45. 40 Id., at para. 79. The offenses included were colonialism, apartheid, the taking of hostages, mercenarism, the threat or use of violence against internationally protected persons, serious disturbance of the public order of the receiving country by a diplomat or an internationally protected person, and the taking of hostages organized or encouraged by a State. 41 Draft Article 12(4), proposed in the Fourth Report of the Special Rapporteur (Doudou Thiam) on the Draft Code of Offences against the Peace and Security of Mankind (A/​ cn.4/​398 and Corr.1-​3) (1986), at 86. 42 The revised Draft Article 14(6) included in the category of crimes against humanity “[a]‌ny serious and intentional harm to a vital human asset, such as the human environment.” Seventh Report of the Special Rapporteur (Doudou Thiam) on the Draft Code of Crimes against the Peace and Security of Mankind (A/​c n.4/​419 & Corr.1 and Add.1) (1989), at para. 30. 43 A/​ c n.4/​s er.A/​1991/​Add.l (Part 2), at 107.

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The additional qualifications of “wilfulness” and that the damage be “widespread, long-​term and severe “ limited the scope of the threshold for the proposed environmental crime. According to the report of the Chair of the Drafting Committee, these changes were met with an overall favourable response in the Commission.44 Only one member expressed opposition to the inclusion of crimes against the environment believing that the time had not come to incorporate crimes against the environment into the Draft Code.45 The Commission on first reading adopted Draft Article 26 with the inclusion of environmental harm as a crime. While the requirement of “criminal intent” was a subject of debate, for the limited purpose of this analysis, the important point is the overall recognition of environmental crime as a crime against the peace and security of mankind. Unfortunately, this provision would not survive the second reading. Ultimately, the final draft adopted by the Commission in 1996 limited the role of environmental destruction to the context of a war crime (article 20).46 It was later reflected in the list of war crimes adopted under article 8(2)(b)(iv) of the Rome Statute.47

44

45 46

47

Draft Code of Crimes against the Peace and Security of Mankind adopted by the Drafting Committee: Parts One and Two; articles 1-​26 –​reproduced in A/​c n.4/​s r.2236 to sr.2237 and sr.2239 to 2241’ Statement of Drafting Committee Chair Pawlak (A/​c n.4/​419 and Add.1), at para. 30. See Pellet (A/​c n.4/​s r.2430) (1996), “though he was not opposed to the idea, which was probably defensible politically, but not in law, of making serious and wilful offences against the environment a crime”. Article 20(g) of the Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission, Forty-​Eighth Session, (A/​51/​10) (1996), provided as follows: “In the case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long-​term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs.” Para 15 of the Commentary to Draft Article 20, explains that it would apply in the case of both international and non-​international armed conflict, the latter being the main contribution in contrast to the “more limited scope of application of Protocol i to international armed conflict.” See Art8(2)(b)(iv) 1998 Rome Statute of the International Criminal Court provides as follows: “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-​term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

586 Oral 4

Crimes against the Environment and the Concept of Ecocide

The notion of environmental crimes dates back to the 1970s and the use of Agent Orange during the Vietnam War.48 During this period the concept of ecocide was introduced very much inspired by the Genocide Convention. At that time ecocide was linked to war, or in Falk’s words, “environmental warfare”.49 Scientist, Richard Galston, is recognized as having coined the term “ecocide” during a panel at the “War Crimes and the American Conscience” conference in 1970. He defined ecocide as follows: After the end of World War II, and as a result of the Nuremburg trials, we justly condemned the wilful destruction of an entire people and its culture, calling this crime against humanity genocide. It seems to me that the wilful and permanent destruction of environment in which a people can live in a manner of their own choosing ought similarly to be considered as a crime against humanity, to be designated by the term ecocide.50 Professor Falk, in his seminal journal article published in 1973, proposed an international convention on the crime of ecocide that would apply in peacetime and wartime.51 His draft convention saw ecocide as a crime under international law and defined it as an act committed with the intent to disrupt or destroy in whole or in part, a human ecosystem through various means, including use of weapons of mass destruction, herbicide, bombs, bulldozing equipment, weather modification techniques and the forcible removal of people and animals.52 In 1976, the UN General Assembly approved the Convention on Environmental Modification Techniques, which entered into force in 1978.53

48

49 50 51 52 53

Richard A Falk “Environmental Warfare and Ecocide –​Facts, Appraisal, and Proposals” (1973) 4 Bulletin of Peace Proposals 80; David Zierler Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment (University of Georgia, 2011). Id., at 84. Zierler (above note 7), at 19. Id., at Appendix i. Id., at Article ii. 1976 Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques, to date has only garnered 78 ratifications, including the United States.

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Its scope of application, however, is limited to environmental modification techniques54 used during military or other hostile activities.55 5

Current Work of the International Law Commission on Peremptory Norms of General International Law (Jus Cogens)

The First Report of the Special Rapporteur Mr. Dire Tladi on peremptory norms (jus cogens) was submitted in 2016 and in 2019, the Commission completed the first reading of 23 draft conclusions and one annex. The Draft Conclusions as provisionally adopted by the Commission used the definition of peremptory norms of general international law found in Article 53 of the vclt.56 However, the scope of the work of the Commission on peremptory norms of general international law is much broader than the vclt as it encompasses other sources of international law and consequences for the breach of a peremptory norm of general international law beyond the law of treaties. Where the vclt applies to treaties, the Draft Conclusions, as adopted thus far, recognize customary international law to be the most common basis for peremptory norms of general international law (jus cogens), followed by treaty provisions and general principles of law.57 Draft Conclusion 4 identifies two criteria of a peremptory norm of general international law. The first, that it is a norm of general international law; and second it is 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. Draft conclusion 7(1) emphasizes that “[i]‌t is the acceptance and recognition by the international community of States as a whole that is relevant for the identification of peremptory norms”. Paragraph 2 of Draft Conclusion 7, states that “[a]cceptance and recognition by a very large majority of States is

54 Article ii defines the term “environmental modification techniques” as “ any technique for changing –​through the deliberate manipulation of natural processes –​the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.” 55 Article 1 provides “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-​lasting or severe effects as the means of destruction, damage or injury to any other State Party.” 56 Draft Conclusion 2 of the Draft Conclusions on Peremptory Norms (above note 5). 57 Id., at Draft Conclusion 5.

588 Oral required for the identification of a norm as a peremptory norm of general international law (jus cogens)” but that “acceptance and recognition by all States is not required.” The key element lies in the recognition by a very large number of States (but not all States) that a general norm of international law non-​derogable. In addition, Draft Conclusion 8 lists a wide array of materials that can serve as evidence to support the criteria of peremptory norm of general international law. These include public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; legislative and administrative acts; decisions of national courts; treaty provisions; and resolutions adopted by an international organization or at an intergovernmental conference. The function of the “international community as a whole” is one of the defining aspects of peremptory norms. In her thoughtful article on the topic of peremptory norms and the environment, Kornicker focused on the paramount role community interests play “in the creation of fundamental international norms” stating “that the protection of the global environment is the prototype of a state community interest.”58 She also identified four criteria in order for a norm to have the status jus cogens: First, the object and purpose of the norm must be the protection of a state community interest. Second, the norm must have a foundation in morality. Third, the norm must be of an absolute nature. Fourth, the vast majority of states must agree to the peremptory nature of the international norm.59 Morality and fundamental values are defining aspects of peremptory norms. While peremptory norms had not yet entered into the legal lexicon, in its advisory opinion on whether reservation could be made by a State to the Genocide Convention, the Court quoting from the 1946 UN Genocide Declaration described genocide as: a crime under international law" involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96 (1) of the General Assembly, December 11th 1946).60 58 59 60

Eva M Kornicker Uhlmann, “State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms” (1998) 11 Georgetown International Environmental Law Review 101, at 102. Id., at 104. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, icj Reports 1951, p. 23.

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The Commission also debated the notion of “morality” as an underlying feature of peremptory norms. The Special Rapporteur did refer to the “moral foundations” of peremptory norms in the original draft commentary to the Draft Conclusions, which sparked a lively debate about the commentary within the Commission.61 Some members expressed their view that reference in the commentary to moral foundations might re-​open the debate about positivism versus natural law.62 The outcome of this debate was that the Commission decided to refer to the protection of fundamental values of the international community.63 The Commission also agreed that it was not all States but a very large majority that must recognize the general norm as having a peremptory norm character of being non-​derogable. The question how to determine when a general norm has transformed into a peremptory norm? Draft Conclusion 8 provides for a wide array of sources as evidence of acceptance and recognition.64 However, there is no indication as to what language or intent meets the acceptance and recognition criteria. For example, what determined that the crime of genocide to be a peremptory norm? The 1948 Convention on the Prevention and Punishment of the Crime of Genocide was developed before the adoption of article 53 of the vclt and before the Commission had completed its work on the Law of Treaties. Consequently, no reference is made to any concept of a peremptory norm (jus cogens), in other words that the crimes addressed enjoy a hierarchical superior and non-​derogable status. The general rule of international law accepted the principle of the consensual basis of treaty-​making by States. This was affirmed by the International Court of Justice in its 1951 Advisory Opinion on the Genocide Convention.65 While not having the benefit 61 (A/​ c n.4/​s r.3500) (2019). 62 Id., p 8 (Park). During the same meeting the present author expressed support for maintaining reference to moral values in the Commentary. Id., at p. 9. 63 Para 7 of the Commentary to Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms (above note 4) as adopted during the first reading reads as follows: “It will be noted from the discussion above that courts and scholarly writers have employed different terms to signify the relevance of values. For example, the phrases “fundamental values” and “interests”, or variations thereof, have been employed interchangeably. These different choices of words, however, are not mutually exclusive and they indicate the important normative and moral background of the norm in question.” 64 Draft Conclusion 8(2) of the Draft Conclusions on Peremptory Norms (above note 4) lists the following as materials that provide evidence of the peremptory character of a norm: public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; legislative and administrative acts; decisions of national courts; treaty provisions; and resolutions adopted by an international organization or at an intergovernmental conference. 65 Reservations to the Genocide Convention, Advisory Opinion, icj Reports 1951, p. 15, at 21.

590 Oral of a crystallized understanding of jus cogens, the Court offered two reasons why the Convention was an exception to the otherwise well-​established principle of the consensual basis of treaties.66 The first concerned the principles underlying Convention as ones that are recognized by States as binding, even in the absence of a conventional obligation. The Court referred to the special characteristics of the Convention and the crime of genocide in particular, which was found by the General Assembly to be contrary to moral law and to the spirit and aims of the UN.67 The second was the universal character of both of the condemnation of genocide and of the co-​operation required “in order to liberate mankind from such an odious scourge” as expressed in the Preamble to the Convention. The Genocide Convention was therefore intended by the General Assembly and by the contracting parties to be definitely universal in scope.68 Although the Court did not recognise the prohibition of genocide as a rule of jus cogens in the 1951 Advisory Opinion, the Court expressly reaffirmed the status of the rule as jus cogens in citing the same passage from 1951 Advisory Opinion in the 2006 judgment in Armed Activities on the Territory of the Congo.69 Since then, the prohibition of genocide as a jus cogens norm has been reaffirmed in subsequent cases before the Court and other international criminal tribunals.70 The International Law Commission included a separate annex of a non-​ exhaustive list of peremptory norms of international law (jus cogens). The listed norms are not to prejudice the existence or subsequent emergence of other peremptory norms of general international law (jus cogens).71 The list was limited only to those norms that the Commission had identified already in the past. It is important to highlight that this list is intended to be merely illustrative and non-​exhaustive for both other existing peremptory norms of 66 Id., at 21–​22. 67 UN General Assembly Resolution 96 (i) (A/​r es/​96(i)) (1946). 68 Id., at 23. 69 See Armed Activities on the Territory of the Congo (above note 19), at para. 64. 70 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj Reports 2007, p. 43, at para. 162; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), icj Reports 2015, p. 3, at para. 88. See also decisions by international criminal tribunals, Prosecutor v. Zoran Kupreškić et al., Judgment of the Trial Chamber of the International Tribunal for the Former Yugoslavia, 14 January 2000, at para. 520; Prosecutor v. Radislav Krstić, Judgment of the Trial Chamber of the International Tribunal for the Former Yugoslavia, 2 August 2001, at para. 541; Prosecutor v. Clément Kayishema and Obed Ruzindana, Judgment of the International Tribunal for Rwanda, 21 May 1999, at para. 88. 71 See Draft Conclusion 23 of the Draft Conclusions on Peremptory Norms (above note 4).

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international law (jus cogens) and also to keep the door open for emerging norms, such as those that might involve environmental protection.72 During the debate on the proposed list of peremptory norms several members referred to the Commission’s previous work on Draft Article 19 of the Draft Articles on State Responsibility on first reading in 1976, which had included the formulation “serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas” as an international crime.73 Over forty-​five years have passed since the Commission first began the discussion to include the preservation and safeguarding of the environment in a separate category of international norms requiring enhanced status of protection such as a serious crime or a peremptory norm of international law. 5

Protection of the Environment as a Fundamental Value and Interest of the International Community as a Whole

Finally, the question is whether environmental protection should now be assessed as a possible peremptory norm? The key to this answer lies in meeting the two-​prong criteria of being (1) a norm of general international law that is accepted and recognized by the international community of States as a whole; and (2) from which no derogation is permitted. If we look at the broader context, environmental concerns have been on the international agenda for decades and the object of collective action in many ways. The first expression of the collective international concern can be found in the 1972 Stockholm Declaration. It was endorsed by all attending Governments, 113 Member States of the United Nations, and proclaimed that the “protection and improvement of the human environment is a major issue which affects the wellbeing of peoples and economic development throughout the world” and declared that that protection “is the urgent desire of the peoples of the whole world and the duty of all Governments.”74 This widespread acknowledgement for protection of the environment by the international community has been reiterated over the decades, and in particular through a series of global summits that followed the 72 73 74

Id., Para 1-​2 of Commentary to Draft Conclusion 23. See also statements of Oral (A/​c n.4/​ sr.3460), at 6. See statement of Murase (A/​c n.4/​s r.3459) (2019), at 12. Report of the United Nations Conference on the Human Environment (above note 7), at para. 2.

592 Oral Stockholm Conference75 each ending with consensus-​based declarations.76 These consensus-​based global declarations demonstrate the extent of the recognition by the international community as a whole of the importance and need to protect and preserve the environment. In addition, the broad recognition by the international community for certain environmental concerns is found in the expression of the principle of the common concern of humankind adopted in conventions that enjoy universal ratification such as the Convention on Biodiversity,77 the United Nations Framework Convention on Climate Change,78 and the 2015 Paris Agreement.79 The collective expression for the duty to protect certain species has been recognized in one of the oldest environmental treaties, the Convention on International Trade in Endangered Species of Wild Fauna and Flora.80 It has attained near-​universal status with 183 ratifications and provides the framework for governments to reach consensus on determining which species are threatened with extinction and prohibit trade.81 These instruments demonstrate that collectively States recognize their common interests and shared fundamental values in the protection of biological diversity, the climate system, endangered species and the marine environment. Thus, there can be no doubt that the protection of the environment constitutes a general norm of international law recognized by the international community as a whole, thereby fulfilling the first prong. There are literally hundreds of instruments, binding and non-​binding, international and national, attesting to this fact. The challenge lies in fulfilling the second prong.

75 United Nations Conference on Environment and Development (unced), Earth Summit,Rio de Janeiro-​Brazil, 3-​14 June 1992; World Summit on Sustainable Development (wssd), Johannesburg Summit, Johannesburg-​South Africa, 26 August –​4 September 2002; United Nations Conference on Sustainable Development, Rio+20, Rio de Janeiro -​ Brazil, 20-​22 June 2012. 76 The 1992 Rio Declaration; the 2002 Johannesburg Declaration; and the 2012 Rio +20 The Future We Want. 77 1992 United Nations Convention on Biological Diversity, 196 States that have ratified the Convention affirmed that the conservation of biological diversity is a common concern of humankind. 78 1992 United Nations Framework Convention on Climate Change, acknowledging that climate change is a common concern of humankind. 79 2015 Paris Agreement, acknowledging that climate change is a common concern of humankind. 80 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora. 81 Id.

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Among scholars, there are differing views where there exists any general principle of international environmental law that has achieved the status of a peremptory norm.82 For example, in 1995 Singleton-​Cambage observed that: Currently, environmental rights and responsibilities are not recognized as having this [peremptory norm] legal status, despite the fact that global environmental preservation represents an essential interest of all individuals within the entire international society. Sufficient time has not yet passed to enable environmental issues to evolve to this status of international law.83 Whereas, writing back in 1977 Marjorie Whiteman (a legal advisor to Eleanor Roosevelt) offered her own projected list identifying certain matters presently outlawed or needing to be outlawed by world consensus under international law (jus cogens) that included Contamination of the air, sea, or land with a view to making it harmful or useless to mankind.84 Kadelbach, presenting a list of primary rules that are both peremptory norms and obligations erga omnes, included the protection of the environment from severe and lasting degradation. However, Kotzé notes that lack of details such as which measures are included, what the threshold would be and also the geographical area that such norms apply.85 6

Potential International Environmental Norms of a Peremptory (Jus Cogens) Character

Without doubt, the most important and challenging part of the equation is determining the second prong of being recognized by the international

82

Ulrich Beverlin and Thilo Marauhn International Environmental Law (Hart, 2011), 287; Patricia Birnie, Alan Boyle, Catherine Redgwell International Law and the Environment (3rd Edition, Oxford, 2009), at 109–​110; Krista Singleton-​Cambage “International Legal Sources and Global Environmental Crises: the Inadequacy of Principles, Treaties and Custom” (1995) 2 ILSA Journal of International Comparative Law 171–​187, at 185; For a detailed overview of the different scholarly views on international environmental norms and jus cogens, see Louis J Kotzé “The Human Right to a Healthy Environment” in John H. Knox and Ramin Pejan (eds.) The Human Right to a Healthy Environment (Cambridge, 2018), at 136–​154. 83 Id. 84 Marjorie M Whiteman “Jus Cogens in International Law, With a Projected List” (1977) 7 Georgian Journal of International Comparative Law 609–​626, 626. 85 Kotzé see (above note 82), at 249.

594 Oral community as a non-​derogable norm that can only be modified by a similar type of norm. However, it is fair to observe that to date no international environmental law norm has been recognized expressly as being of a jus cogens character. Nevertheless, this does not prevent the development of new norms. It is beyond the scope of this chapter to engage in a detailed examination of specific norms of international environmental that may or may not qualify as peremptory norms. Instead, this part will examine how the current state of environmental threats to the global community highlight the need for the emergence of such norms. Since the 1970s, environmental degradation has been recognized as a threat to the well-​being of humanity. Despite the countless instruments adopted by States, binding and non-​binding, establishing obligations, standards or goals for certain destructive actions to be stopped, States continue to engage in activities that defy their own statements and commitments. In particular, as examined below the need to address climate change, loss of biological diversity, the increased number of species becoming extinct or threatened with extinction and the depletion of living natural resources are of existential importance for many around the world. Each of these provide the scientific foundation to establish international environmental peremptory norms. 6.1 Climate Change Climate change poses a threat to the well-​being and security of the world which is recognized by not only by scientists but also by militaries worldwide.86 Scientific reports leave no doubt that global temperatures are rising due to human activities with potential catastrophic impacts on millions of people around the world. The ipcc Fifth Report, adopted by governments by consensus, stated with high confidence that atmospheric concentrations

86

See for example Office of the Under Secretary of Defence for Acquisition and Sustainment, Report on Effects of a Changing Climate to the Department of Defense (2019), describing the effects of climate change as a national security concern. available at https://​climateandsecurity.files.wordpress.com/​2019/​01/​sec_​335_​ndaa-​report_​effects_​of_​a_​changing_​ climate_​to_​dod.pdf (accessed 21 October 2020); United Kingdom Department of Defence Global Strategic Trends: The Future Starts Today 6th edition,2019 available at https://​assets. publishing.service.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​ 771309/​Global_​Strategic_​Trends_​-​_​The_​Future_​Starts_​Today.pdf (accessed 21 October 2020); and North Atlantic Treaty Organization, NATO’s Strategic Concepts, 2010 available at https://​www.nato.int/​nato_​static_​fl2014/​assets/​pdf/​pdf_​publications/​20120214_​ strategic-​concept-​2010-​eng.pdf (accessed 21 October 2020).

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of carbon dioxide, methane and nitrous oxide from human activities are at unprecedented levels for at least the last 800,000 years.”87 The impacts of climate change can be catastrophic to humanity and in particular to communities in developing countries. Rising sea levels is one vivid example of the physical effects of climate change. According to the 2019 ipcc Special Report on the Ocean and Cryosphere in a Changing Climate,88 it is virtually certain that global mean sea level is rising and will accelerate.89 Over 680 million people (nearly 10 percent of the global population in 2010) live in low-​lying coastal areas, providing homes to approximately 28 percent of the global population, with around 11 percent living on less than 10 m above sea level.90 Sixty-​five million people live in Small Island Developing States.91 6.2 Biological Diversity and Extinction In 2019, some 130 governments adopted the first Global Assessment of Biodiversity and Ecosystem Services (2019). It is a landmark study conducted by 150 selected experts from all regions of the world.92 It is the first such study carried out by an intergovernmental body.93 According to the Global Assessment, some 25 per cent of species or around one million species already face extinction in the coming decades unless action is taken to reduce the intensity of drivers of biodiversity loss. Without such action, there will be a further acceleration in the global rate of species extinction, which is already at least tens to hundreds of times higher than it has averaged over the past 10 million years 87

88 89 90 91 92

93

Intergovernmental Panel on Climate Change Climate Change 2014: Synthesis Report. Contribution of Working Groups i, ii and iii to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change, 2015, at 151 available at https://​www. ipcc.ch/​site/​assets/​uploads/​2018/​05/​SYR_​AR5_​FINAL_​full_​wcover.pdf (accessed 22 October 2020). M Oppenheimer, BC Glavovic et al. “Sea Level Rise and Implications for Low-​Lying Islands, Coasts and Communities” in HO Pörtner, DC Roberts et al (eds.) IPCC Special Report on the Ocean and Cryosphere in a Changing Climate (ipcc, 2019) 3–​119. Id., at paras. 4.2.2.1.1 and 4.2.2.2. N Abram, A Gattuso, L Prakash et al. “Framing the Context of the report” in HO Pörtner, DC Roberts et al (eds.)(above note 87) available at https://​www.ipcc.ch/​srocc/​chapter/​ chapter-​1-​framing-​and-​context-​of-​the-​report/​. (22 October 2020). Ibid. Intergovernmental Science-​Policy Platform on Biodiversity and Ecosystem Services (ipbes), “Summary for policymakers of the global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-​Policy Platform on Biodiversity and Ecosystem Services” in Global Assessment Report on Biodiversity and Ecosystem Services (ipbes, 2019). Id., at 2.

596 Oral (A5).94 The enormous loss of wildlife has also been documented in the 2020 wwf Living Planet Report, according to which since 1970 there has been on average a loss of 68 percent of the population of mammals, birds, fish, amphibians and reptiles.95 6.3 Illegal Unreported and Unregulated Fishing Overfishing and the depletion of fish stocks, including destructive fishing practices, is a long-​standing global problem.96 There are two aspects to this problem. The first concerns “lawful” overfishing allowed by States. This also entails fishing activities conducted in the high seas and beyond the reach of national regulations other than the flag State. The second concerns illegal, unreported and unregulated activities. Despite existing instruments, both binding and non-​binding, sustainable fisheries has not been achieved. Fish stocks continue to be overfished97 and other marine species continue to be threatened due to destructive fishing practices, such as bottom trawling and long-​line fishing and all legally done. Subsidies provided by governments further encourage unsustainable and destructive fishing practices.98 Moreover, there is a close connection between violations of human rights and environmental crimes. Indeed, by 2009 the UN General Assembly (unga) had already noted potential connections between international organized crime and illegal fishing in certain regions of the world.99 Most notably are the iuu activities that take place on the high seas subject only to the jurisdiction of questionable flag States.

94 95 96 97 98

99

Ibid. World Wildlife Fund (wwf) Living Planet Report 2020: Bending the Curve of Biodiversity Loss (wwf, 2020). Mary Ann Palma, Martin Tsamenyi and William Edeson Promoting Sustainable Fisheries The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Brill, 2010). See Food and Agriculture Organization of the United Nations (fao) The State of World Fisheries and Aquaculture: Opportunities and Challenges (fao, 2014). Christophe Bellmann, Alice Tipping & Rashid Sumaila “Global trade in fish and fishery products: An overview” (2015) 69 Marine Policy 181; Jaemine Lee “Subsidies for Illegal Activities? –​Reframing iuu Fishing from the Law Enforcement Perspective” (2019) 22 Journal of International Economic Law 417. See Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, UN General Assembly Resolution 64/​72 (A/​r es/​64/​72)(2009).

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6.4 Potential Peremptory Norms The scholarship examining peremptory norms and the environment proposed different approaches to develop such norms, such as extending existing norms in other fields, notably human rights, and applying these to protection of the environment.100 Kotzé provides a detailed overview of the different possibilities of the integrated rights approach ranging from existing norms of armed conflict, human rights and genocide.101 It is also possible to select certain recognized norms of international environmental law, such as the no harm principle (sic utere tuo ut alienum non laedas)102 and determine which should be in the class of non-​derogable peremptory norms. One can also go beyond traditional and general international environmental law norms, such as the no harm rule, and identify more specific norms. One example can be found in the Paris Agreement. For the first time, in article 2 of the Paris Agreement, States agreed to a collective and measurable objective of holding the increase in the global average temperature to well below 2°C above pre-​industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-​industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change. Each State, with no exception, is required to submit every five years nationally determined contribution that provides the measures to be adopted in contributing to achieving this objective that are to be ambitious and represent progression over time. Could the duty to mitigate greenhouse gas emissions progressively over time translate into a peremptory norm from which no State can derogate? The actions of States that allow for over-​fishing that leads to the depletion of fish stock or the failure of States to regulate fishing activities within and beyond their national jurisdiction resulting in the depletion of fish stocks could be reassessed within the context of mass destruction of environmental resources giving rise to a serious breach of a peremptory norm of international law under article 40 of the Articles on State Responsibility. A similar approach could be adopted towards activities sanctioned by the State that result in or lead to the largescale destruction of biological diversity. Of course, these are broad concepts that required detailed examination and fine-​tuning, but the process should begin to assess which activities and at which threshold should

100 Lynn Berat, “Defending the Right to a Healthy Environment: Toward a Crime of Geocide in International Law” (1993) 11 Boston University International Law Journal 327–​348; See Kotzé above note 82), at 136–​154. 101 Kotzé (above note 82), at 260–​264. 102 Id., at 265.

598 Oral harm to the environment be considered as a violation of peremptory norm of general international law. 7

Conclusion

Since the early days of the work of the Commission on the Draft Articles on State Responsibility and the Code on Crimes against the Peace and Security of Mankind, the environmental threat to the vital interests of the international community have only increased. Ample scientific evidence exists showing the multiple threats to the livelihoods of millions of people from the widespread destruction of the environment. The purpose of this Chapter was to raise the question of whether the time has come to consider the protection of the environment as a peremptory norm of general international law (jus cogens). Admittedly, it is a very complex topic and would be overly ambitious to claim to have laid out an exhaustive legal analysis. However, in light of the current work of the International Law Commission, and the efforts to prepare a non-​exhaustive list of peremptory norms of general international law (jus cogens) that have already been identified by the Commission, it seems timely to examine the status of protection of the environment. As outlined in the historical overview of the work of the Commission in this Chapter, crimes against the environment had been included as an international crime in the controversial Article 19 of the Draft Articles of State Responsibility and as a crime against humanity in the Draft Code of Offenses against the Peace and Security of Mankind. Notably, crimes against the environment were listed alongside acts the prohibition of which are now recognized as peremptory norms of general international law, such as the prohibition against apartheid, genocide and torture. There was, especially in the early years, support in the Commission for recognizing environmental crimes as part of these two important undertakings by the Commission. Remarkably, the eloquent words of the Commission written in 1976 in relation to environmental degradation foresaw that existing rules of general international law on the subject and those which will of necessity be added to them in the future are bound to be regarded to a great extent as peremptory rules by the international community as a whole. Since 1976, this call to recognize that the environment as a peremptory norm of general international law is even greater now. The international community has a whole has recognized protection of biodiversity and climate change common concerns of human kind in universally ratified conventions. The existential threat to the international community is documented in many scientific reports that have been adopted by the international community as a

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whole. The 2019 ipbes report has laid out the dire state of loss of biodiversity and threats of species extinction. The already depleted fish stocks continues to decline, very much aided and abetted by State actions through subsidies or laws that continue to allow for overfishing. Scientific reports on climate change are unequivocal on the threats to the livelihoods of human around the world. Even the Covid-​19 pandemic that has ravaged the global community is linked to the destruction of wildlife. It may be that at the time when the Rome Statute was adopted the time had not yet crystallized to include crimes against the environment as crimes against humanity. But this view seems to have changed within the Office of the Prosecutor of the icc as reflected in the 2016 Policy Statement on Case Selection and Prioritization.103 Likewise, the breach of existing obligations for the preservation of the environment essential for the protection of fundamental interests should now be recognized as a serious breach of a peremptory norm of general international law (jus cogens) under the Articles of State Responsibility. In conclusion, the discussion that the International Law Commission began in the early 1970s concerning the place of protection of the environment as a norm enjoying a hierarchically superior status in relation to other norms should resume and ultimately define the scope and application of a peremptory norm of general international law (jus cogens) for protection of the environment. Some fifty years after the 1972 Stockholm Declaration and the recognition by the Commission that harm to the environment was at the same level as other crimes against humanity, the situation has only worsened with existential consequences for the international community as a whole. It seems that the time has come to revisit the work started by the Commission decades ago and start the process to determine the criteria for when harm to the environment constitutes a violation of a peremptory norm of general international law. 103 See icc Office of the Prosecutor, “Policy paper on case selection and prioritisation”, 15 September 2016.

Chapter 21

The Prohibition of Terrorism as Jus Cogens Aniel de Beer 1

Introduction Terrorism has achieved the status of almost universal condemnation, as have slavery, genocide, and piracy, and the terrorist is the modern era’s hosti humani generis –​an enemy of all mankind.1

The worldwide condemnation of terrorism gives rise to the question of whether the prohibition of terrorism has become a peremptory norm of general international law (jus cogens) –​a norm accepted and recognised by the international community of States as a norm from which no derogation is permitted.2 In considering this question, the Chapter will commence with a brief overview of terrorism through the ages, followed by a discussion on the definition of terrorism.3 It will then consider whether the prohibition of terrorism meets the criteria for jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties (“Vienna Convention”), as well as whether it exhibits the characteristics of jus cogens. Finally, the Chapter will discuss the interaction between the prohibition of terrorism and efforts by States to fight terrorism on other jus cogens norms, in particular the prohibition of torture and the right to a fair trial.

1 Flatow v Islamic Republic of Iran, Judgement of the United States District Court of the District of Columbia, 25 July 1999. See further Douglas Burgess “Hostis Humani Generi: Piracy, Terrorism and a New International Law” (2006) 13 University of Miami International and Comparative Law Review 293, at 316, 317, 321, 323, 330, 331, 335, 338, 341; Elimma Ezeani “The 21st Century Terrorist: Hostis Humani Generis?” (2012) 3 Beijing Law Review 158, at 164–​166. 2 See Art 53 of the 1969 Vienna Convention on the Law of Treaties. 3 This chapter will focus on the prohibition of international terrorism in peacetime, although brief references will be made to acts of terror in times of war, which is regulated by international humanitarian law.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_022

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A Brief Overview of Terrorism through the Ages

Terrorist activities have existed since 50 A.D.4 The Jewish sicarii or “dagger-​ men” have been described as the first terrorists.5 The sicarii supported the Jewish resistance to Roman rule in Judea and used short daggers to kill Jews seen as collaborating with Roman rule.6 During festivals they would mingle with the crowd, carrying daggers concealed underneath their clothes with which they stabbed their enemies in broad daylight, causing terror among onlookers.7 Decades later, in the 18th century, Robespierre was accused of terrorism during the French Revolution, when he ordered the public execution of 17 000 people considered to be enemies of the Revolution.8 In the 20th century, terrorism was initially associated with the use of violence by the State against its own population, such as Stalin’s ruling of Russia by terror and Germany’s Nazi regime in the 1930s and 1940s.9 The “terror bombings” during which British and United States (“US”) aerial forces deliberately targeted and bombed German cities during World War ii in an effort to defeat the Nazi regime, killing hundreds of thousands of civilians,10 are examples of acts of terror perpetrated by the State.11 US aerial bombing campaigns include incendiary bombs in Tokyo in March 1945, which ignited a firestorm killing 80 000 people, and the bombings of Hiroshima and Nagasaki in August 1945 which killed more than 210 000 people.12 Initially, States raised a “just war” defence; i.e. that certain acts of violence causing harm to civilians were 4 5 6 7 8

9 10 11 12

Richard Horsley “The Sicarii: Ancient Jewish ‘Terrorists’ ” (1979) 59 Journal of Religion 435, at 436. Id., at 438–​439, 441, 444, 450. Id., at 436. Ibid. Alex Schmid “The Problems of Defining Terrorism” in Martha Crenshaw and John Pimlott (eds.) Encyclopedia of World Terrorism (M.E. Sharpe, 1997) vol. 12, at 12–​13; Encyclopedia Brittanica “Reign of Terror” available at www.britannica.com/​event/​Reign-​of-​Terror (accessed 4 July 2020). Igor Primoratz “State Terrorism and Counter-​Terrorism” in Igor Primoratz (ed.) Terrorism –​ The Philosophical Issues (Palgrave MacMillan, 2004) 113, at 115. See Douglas Lackey “The Evolution of the Modern Terrorist State: Aerial Bombing and Nuclear Deterrence” in Primoratz (above note 9) 128, at 128–​131. See further Primoratz (id.), at 118. Aerial bombings killed over 25 000 civilians in Dresden. See Tami Davis Biddle “Sifting Dresden’s Ashes” 2005 29(2) The Wilson Quarterly 60, at 61. See further Stephen Garrett “Terror Bombings of German Cities in World War II” in Primoratz (ibid.) 141, at 141–​143. Masao Tomonaga “The Atomic Bombings of Hiroshima and Nagasaki: A Summary of the Human Consequences, 1945–​2018, and Lessons for Homo Sapiens to End the Nuclear Weapon Age” (2019) 2 Journal for Peace and Nuclear Disarmament 491, at 493.

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in defence of the common good.13 Eventually, and only after the suffering and death of hundreds of thousands of civilians, indiscriminate aerial attacks on cities became a subject of general condemnation and were forbidden. In 1949, the Geneva Conventions and their Additional Protocols specifically prohibited and criminalized terrorism and acts of terror against civilians as a war crime.14 Later, terrorism included acts by non-​State actors.15 Examples of such conduct described as terrorist acts include the use of violence by anarchists in their opposition to the existence of the State, such as the Wall Street bombing of 1920.16 During the 1950s and 1960s, terrorism attained an international dimension with the hijacking of civilian aircraft by non-​State actors for political purposes.17 Acts of terrorism using airplanes continued to escalate with the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland18 and culminated in the attacks of 11 September 2001 (9/​11) when terrorists crashed two civilian aircraft into the US World Trade Centre and the Pentagon respectively, killing almost 3 000 people, including the passengers on board.19 Today, State-​sponsored and nationalist terror groups have given way to transnational terrorist networks which exploit the advantages of modern communication technologies in an interconnected world.20 Despite the decline and defeat of some terrorist groups,21 terrorist attacks, whether by terrorist

13 14

15 16 17 18 19 20 21

See Tony Coady “Terrorism, Morality and Supreme Emergency” in Primoratz (above note 9) 80, at 86–​92. See Art 33 of the 1949 Fourth Geneva Convention; Art. 51(2) of the 1977 Additional Protocol i; Art. 13(2) of the 1977 Additional Protocol ii; and Art. 4(1) read with Art. 4(2)(d) of the 1977 Additional Protocol ii. For more on terrorism as a war crime, see Sébastien Jodoin “Terrorism as a War Crime” (2007) 7 International Criminal Law Review 77, at 100. Ersel Aydinli “Before Jihadists There Were Anarchists: A Failed Case of Transnational Violence” (2008) 31 Studies in Conflict and Terrorism 903, at 913, 918; Richard English Does Terrorism Work? A History (Oxford, 2016), at 228. Paul Avrich Anarchist Voices: An Oral History of Anarchism in America (Princeton, 1996), at 132–​133. Alona Evans “Aircraft Hijacking: Its Cause and Cure” (1969) 63 American Journal of International Law 695, at 697–​98; Jangir Arasly “Terrorism and Civil Aviation Security: Problems and Trends” (2005) The Quarterly Journal 75, at 76–​78. Steve Emerson “The Lockerbie Terrorist Attack and Libya: A Retrospective Analysis” (2004) 36 Case Western Reserve Journal of International Law 487, at 487. Burton Leiser “The Catastrophe of 11 September and its Aftermath” in Primoratz (above note 9) 192, at 192–​193. National Strategy for Combating Terrorism, February 2003 available at www.cia.gov/​ news-​information/​cia-​the-​war-​on-​terrorism/​Counter_​Terrorism_​Strategy.pdf (accessed 8 April 2020). Audrey Kurth Cronin “How Al-​Qaida Ends: The Decline and Demise of Terrorist Groups” (2006) 31 International Security 7, at 18–​32; Ely Karmon “The Demise of the Caliphate: Quo

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groups or individuals, continue.22 These attacks target any area where civilians congregate, ranging from public transport,23 entertainment venues,24 tourist resorts25 and marathons26 to hospitals,27 funerals,28 villages,29 churches30 and schools.31

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24 25

26 27 28 29

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Vadis ISIS?”,19 December 2016, available at www.researchgate.net/​publication/​311886867_​ The_​Demise_​of_​the_​Caliphate_​Quo_​Vadis_​ISIS (accessed 8 April 2020). “Terrorism Timeline Since 9/​11” available at www.since911.com/​explore-​911/​terrorism-​ timeline (accessed 1 April 2020); Peter Bergen “A Timeline of Recent Terror Attacks in Europe”, 20 December 2016, available at www.time.com/​4607481/​europe-​terrorism-​ timeline-​berlin-​paris-​nice-​brussels/​ (accessed 1 March 2020). bbc News “Brussels explosions: What we know about airport and metro attacks”,9 April 2016, available at www.bbc.com/​news/​world-​europe-​35869985 (accessed 1 April 2020); Elaine Sciolino “Bombings In Madrid: The Attack; 10 Bombs Shatter Trains in Madrid, Killing 192”, 12 March 2004, available at www.nytimes.com/​2004/​03/​12/​world/​bombings-​ in-​madrid-​the-​attack-​10-​bombs-​shatter-​trains-​in-​madrid-​killing-​192.html (accessed 1 April 2020); cnn “London Bombings: Fast Facts”,7 July 2005, available at www.edition. cnn.com/​2013/​11/​06/​world/​europe/​july-​7-​2005-​london-​bombings-​fast-​facts/​index.html (accessed 1 April 2020). bbc News “Manchester Attack: What Happened?”, 9 September 2017, available at www. bbc.co.uk/​newsround/​40009766 (accessed 9 April 2020). The Telegraph “Sri Lanka bombings: Intelligence blunder ahead of terror attack that killed more than 200”, 22 April 2019, available at www.telegraph.co.uk/​news/​2019/​04/​21/​ sri-​lanka-​explosions-​casualties-​churches-​hotels-​targeted-​easter/​ (accessed 9 April 2020); The Guardian “Seven Jailed for Life over 2015 Tunis and Sousse Terror Attacks”, 9 February 2019, available at www.theguardian.com/​world/​2019/​feb/​09/​seven-​jailed-​2015-​tunisia-​ terror-​attacks (accessed 9 April 2020). The Washington Post “Investigation into Boston Marathon bombings” available at www. washingtonpost.com/ ​ w p- ​ s rv/ ​ s pecial/ ​ n ational/ ​ b oston- ​ m arathon- ​ explosions- ​ m ap/​ (accessed 9 April 2020). Shadi Khan Saif “Afghanistan: Nearly 40 die in funeral, hospital attacks”, 12 May 2020, available at www.aa.com.tr/​en/​asia-​pacific/​afghanistan-​nearly-​40-​die-​in-​funeral-​hospital-​attacks/​1837809 (accessed 2 July 2020). Ibid. The Guardian “Boko Haram’ militants kill 48 villagers in attacks in north-​east Nigeria”,21 May 2014, available at www.theguardian.com/​world/​2014/​may/​21/​boko-​haram-​militants-​ kill-​48-​attacks-​villages-​northeast-​nigeria (accessed 1 April 2020); Al Jazeera “Kenya: Nine Beheaded in Suspected Al-​Shabab”, 9 July 2017, available at www.aljazeera.com/​news/​ 2017/​07/​kenya-​attack-​170708103555604.html (accessed 1 March 2020). Helen Regan and Sandi Sidhu “49 Killed in Mass Shooting at Two Mosques in Christchurch, New Zealand”, 15 March 2019, available at www.edition.cnn.com/​2019/​03/​14/​asia/​christchurch-​mosque-​shooting-​intl/​index.html (accessed 9 April 2020); bbc News “France church attack: Priest killed by two ‘IS militants’ ”, 26 July 2016, available at www.bbc.com/​ news/​world-​europe-​36892785 (accessed 1 April 2020). cnn “Beslan School Siege Fast Facts”, 17 August 2019, available at www.edition.cnn.com/​ 2013/​09/​09/​world/​europe/​beslan-​school-​siege-​fast-​facts/​index.html (accessed 1 April

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Although terrorism remains a grave threat to international peace and security, there is to date no universally agreed-​upon treaty definition of the term “terrorism.” The next section will consider whether a definition of terrorism has emerged under other sources of international law, specifically customary international law. 3

Definition of Terrorism

Various attempts have been made to define terrorism over the centuries. The first international conference for the unification of criminal law in Warsaw in 1927 declared, as a an offence against the law of nations, “the intentional use of any instrument capable of producing a public danger.”32 During the Third Conference for the Unification of Criminal Law in Brussels in 1930, the word “terrorism” was added in brackets after the wording referring to the use of an instrument capable of producing a public danger.33 Seven years later, the Convention for the Prevention and Punishment of the Crime of Terrorism provided that acts of terrorism are “criminal acts directed against a State with the intent to create a state of terror in the minds of particular persons, a group of persons or the general public.”34 This Convention never entered into force owing to a lack of ratifications. In 1949, terrorism and acts of terror against civilians committed in armed conflict was prohibited in the Geneva Conventions –​ without defining terrorism.35

32 33 34 35

2020); Robert Lewis “Peshawar School Massacre”, 10 November 2017, available at www. britannica.com/​event/​Peshawar-​school-​massacre (accessed 9 April 2020). Daniel Segesser and Myriam Gessler “Raphael Lemkin and the International Debate on the Punishment of War Crimes (1919–​1948)” (2005) 7 Journal of Genocide Research 453, at 457. Arnold Amet “Terrorism and International Law: Cure the Underlying Problem, Not Just the Symptom” (2013) 19 Annual Survey of International and Comparative Law 17, at 29; Third Conference for the Codification of Penal Law, 1930. Art. 1(2) of the 1937 Convention for the Prevention and Punishment of Terrorism. In terms of Art. 33 of the 1949 Fourth Geneva Convention, all measures of intimidation and terrorism are prohibited. Art51(2) of Additional Protocol i as well as art. 13(2) of Additional Protocol ii provide that “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.” Further, Art. 4(1) read with Art 4(2)(d) of Additional Protocol II prohibits acts of terrorism against civilians.

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The inability of States to arrive at a universally accepted definition of terrorism led to a thematic, piecemeal approach,36 addressing and criminalizing certain instances of terrorist conduct, such as crimes relating to civil aviation, shipping, crimes concerning the financing of terrorism, and the use, possession or threatened use of bombs or nuclear materials but avoiding defining terrorism.37 The Terrorism Financing Convention came the closest; without providing a definition of terrorism per se, it defined an offence under the Convention as any person providing or collecting funds with the intention of carrying out any … act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.38 UN resolutions initially also did not define terrorism but dealt with specific terrorist acts such as bombings and hostage-​taking.39 It was only in 2004 that the United Nations Security Council (unsc ) adopted Resolution 1566, which while not expressly stipulating a definition of international terrorism, reflected the elements of an offence in terms of the Terrorism Financing Convention 36 37

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Jodoin (above note 14), at 84; M. Cherif Bassiouni “Legal Control of International Terrorism: A Policy-​Oriented Assessment” (2002) 43 Harvard International Law Journal 83, at 91–​92. See the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft; the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; the 1979 International Convention against the Taking of Hostages; the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation; the 1979 International Convention for the Suppression of Terrorist Bombings; the 1999 Convention for the Unification of Certain Rules for International Carriage by Air; and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. See the 1999 International Convention for the Suppression of the Financing of Terrorism, at article 2(1)(b). It has been argued that clause 2(1)(b) of this Convention constitutes an authoritative, workable and fair definition of international terrorism, and reflects the essence of what the world understands by the term “terrorism” –​see Suresh v Canada (Minister of Citizenship and Immigration), Judgement of the Supreme Court of Canada, 11 January 2002, at para. 93. See, further, Thomas Weatherall “The Status of the Prohibition of Terrorism in International Law: Recent Developments” (2015) 46 Georgetown Journal of International Law 589, at 596. See eg UN Security Council Resolution 1440 (2002), condemning hostage-​taking in Moscow; as well as UN Security Council Resolutions 1438 (S/​r es/​1438)(2002); 1465(S/​ res /​1465)(2003); 1516 (S/​r es/​1516) (2003); 1530 (S/​r es/​1530)(2004) and 1611(S/​ res /​1611) (2005) condemning bombings in Bali, Bogota, Istanbul, Madrid and London respectively.

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discussed above, adding that there is no justification for terrorism. This resolution provided that: criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or abstain from doing any act which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature …40 In 1996, the UN General Assembly mandated an Ad Hoc Committee to draft a comprehensive convention against terrorism.41 Article 2(1) of the Draft Comprehensive Convention on International Terrorism of 2006 (Draft Comprehensive Convention) defines an act of terrorism as follows:



Any person commits an offence within the meaning of this Convention if that person, by any means, unlawfully and intentionally, causes: (a) Death or serious bodily injury to any person; or (b) Serious damage to public or private property, including a place of public use, a State or government facility, a public transportation system, an infrastructure facility or the environment; or (c) Damage to property, places, facilities, or systems referred to in paragraph 1(b) of this article, resulting or likely to result in major economic loss, when the purpose of the conduct, by its nature or context, is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing any act.

To date, the Draft Comprehensive Convention has not been finalized. The deadlock preventing the finalization of the Convention is not due to disagreement with regard to the substantive, inclusionary elements of the definition, but is due to disagreement between States regarding what should be excluded from

40 41

UN Security Council Resolution 1566(2004), at para. 3. See UN General Assembly Resolution A/​51/​210(1997).

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the definition, i.e. the acts of people during a struggle for self-​determination and the activities undertaken by the military forces of a State.42 However, the absence of a treaty definition does not mean that there is no definition of terrorism in international law. In this regard, a review of national legislation reveals common elements in the legislation of several States with regard to the definition of terrorism.43 In African States, an act of terrorism requires a level of violence against persons or property, a political purpose and a transnational element.44 In Europe, anti-​terrorism legislation prohibits the use of violence against persons or property for ideological or political motives and in order to achieve one’s goals through terror, intimidation or threats.45 In Asian States, definitions of terrorism include reference to the intention to create fear and panic, acts of violence against persons and the destruction of property, a political purpose and a transnational element.46 The elements of violence, the intent to spread fear and a political purpose have also been supported in national47 and 42

Surya Subedi “The UN Response to International Terrorism in the Aftermath of the Terrorist Attacks in America and the Problem of the Definition of Terrorism in International Law” (2002) 4 International Law Forum 159, at 164–​5. See further the Organisation of Islamic Cooperation (oic) Convention, 1999, at article 2. 43 See Aniel De Beer The Prohibition of Terrorism as a Norm of General International law (Jus Cogens) (Brill, 2019), at 46–​52 for a discussion of all relevant national legislation with regards to the definition of terrorism. 44 See, e.g., the Egyptian Anti-​Terrorism Law, 2015, at sec. 1; the Tanzanian Prevention of Terrorism Act, 2002, at sec. 4; the Tunisian Anti-​Terrorism Law, 2015, at sec. 13; the Botswana Counter-​Terrorism Act, 2014, at sec. 2(1)(a)-​(m); the Cameroon Law on the Suppression of Acts of Terrorism, 2014, at sec. 2(1); the Nigerian Terrorism (Prevention) Act, 2011, at sections 1(2) and (3); the Uganda Anti-​Terrorism Act, 2002, at sec. 7(2); the Lesotho Penal Code Act, 2010, at sec. 96; the Ghana Anti-​Terrorism Act, 2008, at secs. 1(1) (a)-​(e); the South Africa’s Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004, at secs. 1(xxv) and 2. 45 See, for example, the Criminal Code of the Czech Republic, 2009, at sec. 311; the Spanish Organic Law No 10/​1995, 2005, at secs. 571–​580; the Andorra New Penal Code, 2005, at sec. 230; the Dutch Crimes of Terrorism Act, 2004, at arts. 83 and 83(a); the Belgian Organic Law on the Intelligence and Security Services, 1998, at sec. 8(1), para 2(b); the Criminal Code of the Republic of Albania, 1995, at sec. 330; the Australian Criminal Act Code, 1995, at sec. 100(1); the French Penal Code, 1791, at sec. 421. 46 See the Philippines Anti-​Terrorism Act, 2020, at sec. 4; the Malaysian Penal Code, 2015, at sec. 130B; the Bangladesh Anti-​Terrorism Ordinance, 2008, at sec. 6; the Jamaican Terrorism Prevention Act, 2005, at sec. 3(2); the Penal Code of Bhutan, 2004, at sec. 329; the Seychelles Prevention of Terrorism Act, 2004, at sec. 2. 47 In Madan Singh v State of Bihar, Judgement of the Supreme Court of India, 2 April 2004, the Supreme Court of India stated that terrorism may be described in terms of the elements of violence (including death, injury or the destruction of property) and an intent to cause fear and political purpose, the result of the terrorist act being to cause a prolonged

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international48 jurisprudence. In Prosecutor v Ayyash, the Appeals Chamber of the Special Tribunal for Lebanon found the following elements to constitute the crime of terrorism under customary international law: the threat of or the perpetration of a criminal act; the intent to spread fear among the population; a political purpose (directly or indirectly coercing a national or international authority to take some action or to refrain from taking such action); and a transnational element.49 In light of the above, a definition of terrorism has emerged under customary international law. The common elements of terrorism are an act of violence causing harm to civilians; an intention to spread terror or fear; a political purpose and a transnational element. Having identified what constitutes terrorism under customary international law, the next section will consider whether the prohibition of terrorism has become a peremptory norm of international law (jus cogens). 4

Is the Prohibition of Terrorism Jus Cogens?

4.1 Criteria A peremptory norm of general international law (jus cogens) is a norm accepted and recognised by the international community of States as a norm from which no derogation is permitted. The criteria for the identification of jus

psychological effect on the victim and affecting society as a whole by terrorizing and disturbing the harmony of society. In Almog v Arab Bank plc, Judgement of the United States District Court of the District of New York, 29 January 2007, the US Federal Court held that “in light of the universal condemnation of organized and systematic suicide bombings and other murderous acts intended to intimidate or coerce a civilian population, this court finds that such conduct violates an established norm of international law.” 48 See Prosecutor v Ayyash & Others, Judgement of the Trial Chamber of the Special Tribunal of Lebanon, 16 February 2011, at 49–​50 para. 85. 49 Ayyash (ibid.) The Appeals Chamber held that “a number of treaties, UN resolutions, and the legislative and judicial practice of States evince the formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio, to the effect that a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements: (i) the perpetration of a criminal act (such as murder, kidnapping, hostage-​taking, arson, and so on), or threatening such an act; (ii) the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; (iii) when the act involves a transnational element.”

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cogens in modern international law can be found in article 53 of the Vienna Convention, which provides as follows: … a peremptory norm of general international law is a norm of general international law accepted and recognised 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. The criteria of jus cogens are thus first, that it is a norm of general international law and second, that such norm is accepted and recognised by international community of States as a whole as a norm from which no derogation is permitted.50 4.1.1 A Norm of General International Law As regards the first criterium, customary international law, which forms part of general international law, is accepted as the main basis for jus cogens.51 It will thus be considered whether the prohibition of terrorism is a rule of customary international law. As discussed earlier, many States have adopted national legislation prohibiting terrorism and terrorism is widely condemned in State practice as well as in many resolutions of the United Nations General Assembly (unga)52 and the unsc.53 For example, resolution 1373 of 1999 is binding on all States, and requires that all member States make terrorism a serious crime in domestic legislation.54 International jurisprudence also supports the 50

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53

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First report of the Special Rapporteur (Dire Tladi) on jus cogens (A/​CN.4/​706) (2017), at 45 para. 43. These criteria were accepted by the Commission. See Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019). Joao Christófolo “Solving Antimonies between Peremptory Norms in Public International Law” (Schultess, 2016), at 115: “As the most likely source of general international law, customary norms would constitute ipso facto and ipso iure a privileged source of ius cogens norms”; First report of the Special Rapporteur on jus cogens (note 50 above), at 45 para. 43. See UN General Assembly Resolutions 69/​127 (A/​res /​69/​127) (2014) and 60/​288 (A/​res /​60/​288) (2006); 68th General Assembly Plenary, Reiterating Unequivocal Condemnation of Terrorism in all Forms, General Assembly Adopts Resolution Reaffirming Global Commitment to Combating Threat, 96th and 97th meetings (GA/​11523) of 13 June 2014 available at www.un.org/​press/​en/​2014/​ga11523.doc.htm (accessed 13 March 2019). See, eg, UN Security Council resolutions 2462, 2467 & 2482 (2019); 2322 & 2331 (2016); 2341, 2347, 2354; 2368, 2370, 2388, 2395, 2396, 2199, 2242, 2249 & 2253 (2015); 2133, 2170, 2178, 2195, 2170, 2178 & 2195 (2014); 2129 (2013); 1617 (2005); 1624 & 1526 (2004); 1452 (2002); 1373, 1368, 1373 & 1377 (2001); 1267 (1999). UN Security Council Resolution 1373 (S/​res /​1373) (2001), para. 2(3).

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prohibition of terrorism as a rule of customary international law. In Prosecutor v Galić, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia found that the prohibition of terrorism enshrined in the Additional Protocols to the Geneva Conventions belongs to customary international law55 while in Prosecutor v Ayyash, the Appeals Chamber of the Special Tribunal for Lebanon held that “a customary rule of international law regarding the international crime of terrorism, at least in peacetime, has emerged.”56 4.1.2

Acceptance and Recognition of Non-​derogability by the International Community of States With regard to the second criterium, some scholars have argued that the words “accepted” and “recognised” in article 53 of the Vienna Convention requires that the international community of States as a whole must agree or consent to the norm being a norm from which no derogation is permitted.57 This assumes that despite its natural law origins, jus cogens remains grounded in positive law.58 The consent argument is not supported. As pointed out by Linderfalk, Article 53 does not create jus cogens, but explains its existence.59 What article 53 requires is that States widely subscribe to the opinion that, on the basis of an authoritative set of rules existing in customary international law, no derogation from a certain norm is permitted.60 This opinio juris cogentis of States is based on a belief by the international community as a whole that a norm is peremptory owing to the essential interests which that norm protects.61 55 56 57

58 59 60 61

Prosecutor v Stanislav Galić, Judgement of the International Criminal Tribunal for the former Yugoslavia, 30 November 2006, at para. 90. Prosecutor v Ayyash (above note 48). Mark Weisburd “The Emptiness of the Concept of Jus Cogens as Illustrated by the War in Bosnia-​Herzegovina” (1995) 17 Michigan Journal of International Law 1, at 35 (“The version of jus cogens embodied in Article 53 … makes state acceptance the only test of jus cogens”); Dinah Shelton “Normative Hierarchy in International Law” (2006) 100 American Journal of International Law 291, at 300, stating that Article 53 bases the identification of a jus cogens norm “squarely in state consent.” See further James Green, “Questioning the Peremptory Status of the Prohibition of the Use of Force” (2011) 32 Michigan Journal of International Law 215, at 217 and 257. Weisburd (ibid.) and Shelton (ibid.). Ulf Linderfalk “The Creation of Jus Cogens –​Making Sense of Article 53 of the Vienna Convention” (2011) 71 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 359, at 359. Id., at 374. Gordon Christenson “Jus Cogens: Guarding Interests Fundamental to International Society” (1987–​88) 28 Virginia Journal of International Law 585, at 614, arguing that jus cogens “provide hope for giving priority to ordinary rules or adding content to the most compelling interests of international society”;Prosecutor v Furundzija, Judgement of the

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Is the prohibition of terrorism accepted and recognised by the international community of States as a whole as non-​derogable, or can acts of terrorism be justified in certain circumstances? In the 21st century, acts of terrorism are often committed by non-​State actors in peacetime.62 Furthermore, non-​State actors in many instances justify terrorism on the basis that they are “freedom fighters.”63 This freedom often is in the context of “freedom from …” an aggressor or invader –​for example, the Taliban were seen by some as freedom fighters because they were fighting against foreign (American) occupation of Afghanistan.64 Terrorists have also justified the killing of “innocents” as revenge –​a kind of vindication against the illegal policies for which these “innocents” are collectively responsible.65 The maiming and killing of “innocent” targets are argued to be justified because they are designed to avert a greater evil: the grave injustices and exploitation of their own peoples’ lives by the powers that be.66 Terrorists also argue that acts of terror are committed against peoples and governments for the “greater good” and maintain that there are no other options available to achieve such “greater good”.67 Other

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International Criminal Tribunal for the former Yugoslavia, 10 December 1998, at para. 144, referring to jus cogens embodying the fundamental standards of the international community. It is also not required that each State accepts and recognizes the quality of the norm; it is sufficient if a very large majority does so. See Draft Conclusion 7(2) of the Draft Conclusions on Peremptory Norms (above note 50). Anthony Cordesman “The Spain Attacks Show How Much Terrorism Is Changing” 18 August 2017 available at www.fortune.com/​2017/​08/​18/​spain-​attacks-​barcelona-​cambrils-​ terrorism/​(accessed 1 April 2020). Mustafa Qadri “Taliban: terrorists or freedom fighters?” 29 September 2017 available at www.abc.net.au/​news/​2010-​06-​03/​34792 (accessed 24 April 2020). Ibid. John Cohan “Necessity, Political Violence and Terrorism” (2006) 35 Stetson Law Review 903, at 980–​981. See Lizzie Dearden “Shamima Begum: Manchester Arena bombing ‘justified’ because of Syria airstrikes, Isis teenager says” 18 February 2018 available at www.independent.co.uk/​ news/​world/​middle-​east/​shamima-​begum-​isis-​interview-​manchester-​bombing-​terror-​ attack-​syria-​airstrikes-​a8784741.html (accessed 9 April 2020). The 19-​year old Ms Begum claimed that the Manchester Arena attack was “justified” because of airstrikes that have killed civilians in Syria. She stated: “It’s a two-​way thing really because women and children are being killed in the Islamic State right now and it’s kind of retaliation. Their justification was that it’s retaliation, so I thought ok that is a fair justification.” See further English (above note 15), at 262, stating that terrorists are more focused on perceived and actual injustices needing to be righted for their own community than they are on the humanity (and human rights) of those whom they terrorize. Nick Fotion “The Burdens of Terrorism” in Primoratz (above note 9) 44, at 47–​48; see Michael Walzer “Terrorism: a Critique of Excuses” in Stephen Luper-​Foy (ed.) Problems of International Justice (Westview, 1988), at 240, stating that there are always other options

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motivations include self-​defence against the alleged occupation of territory,68 undermining civilians’ sense of security,69 rendering a territory ungovernable,70 religious justifications,71 and within the terrorist group, building unity or enforcing obedience within a terrorist group72 or provoking repression, which stimulates terrorism by either closing off non-​violent resistance or by sharpening grievances within a population.73 Obtaining publicity for a cause is also a major motivation.74 In 1972, Palestinian terrorist group Black September took nine members of the Israeli Olympic team hostage at the Munich Olympics.75 The siege ended with the eleven Israelis, one Munich policeman, and five terrorists killed during a failed attempt to rescue the hostages.76 The publicity was massive. Over 500 000 people witnessed the events in Munich on television and the attack was regarded as a triumph for bringing the Palestinian cause to the world stage.77 In addition, Igor Primoratz argues that in some cases, a State also uses terrorism by another State as a justification for engaging in terrorist acts against that State, for example Israel attacking civilian targets in other States in order to force the governments of those states to suppress terrorist activities on its territories or the shelling and bombing of Lebanon to force the Lebanese government to suppress activities by the Palestinian Liberation Organisation on its territory.78 Do any of these many justifications find traction in international law? Given the fundamental values of humanity and human dignity it protects, the available such as attacking the opponent’s military establishment, non-​violent resistance or testing laws. 68 See Tomis Kapitan “Terrorism in the Arab-​Israeli conflict” in Primoratz (above note 9) 175, at 180–​181. 69 See Kapitan (above note 68) at 180–​181, arguing that, through undermining Israeli sense of security by means of attacks on civilians, Palestinians are attempting to force Israelis to reconsider the continued occupation of Palestine. 70 Grant Wardlaw Political Terrorism (Cambridge, 1982), at 41–​42. 71 Magnus Ranstorp “Religion: Politics, Power and Symbolism” (1996) 50 Journal of International Affairs 41, at 41–​42. 72 See Kapitan (above note 68). 73 James Piazza “Repression and Terrorism: A Cross-​National Empirical Analysis of Types of Repression and Domestic Terrorism” (2017) 29 Terrorism and Political Violence 102, at 102. 74 English (above note 15), at 182. 75 Munich massacre, Munich, Germany (1972) www.britannica.com/​event/​Munich-​ Massacre (accessed 24 September 2020). 76 Ibid. 77 Kapitan (above note 68), at 185. 78 Primoratz (above note 9), at 123. He concludes that fighting terrorism with terrorism is indefensible.

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prohibition of terrorism permits no derogation.79 It thus denies the existence of any exception –​including a “freedom fighter” exception.80 In this regard, earlier unga resolutions referred to exceptions for the conduct of national liberation movements for terrorist acts, but later resolutions excluded these references. While acknowledging the right to self-​determination, later resolutions at the same time unequivocally condemned terrorism.81 The unga Declaration on Measures to Eliminate International Terrorism of 1994 states that criminal acts intended to provoke a state of terror in the general public for political purposes are in any circumstance unjustifiable, thus irrespective of any justification of a political, philosophical, ideological, racial, ethnic, religious or any other nature,82 and various binding unsc resolutions confirm the unequivocal condemnation of terrorism.83 These resolutions reiterate the condemnation of terrorism in all its forms and manifestations and declare terrorist acts as being unjustifiable regardless of the reasons invoked by its perpetrators.84 In addition, State delegations have consistently reaffirmed their strong and unequivocal condemnation of terrorism in all its forms and manifestations and confirmed that acts of terrorism can never be justified.85 The 79 80 81 82 83

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See further Immanuel Kant, Groundwork of the Metaphysics of Morals in Immanuel Kant: Practical Philosophy, trans. by Mary Gregor (Cambridge, 1996), at 429; Samuel Kerstein “Treating Others Merely as Means” (2009) 21(2) Utilitas 163, at 163. Weatherall (above note 38), at 626. UN General Assembly Resolution A/​44/​29 (1989) and UN General Assembly Resolution A/​46/​51 (1991), at para 15. These resolutions reaffirm the right to self-​determination, yet offer an unqualified condemnation of terrorism. UN General Assembly Resolution A/​49/​60 (1994). See UN Security Council Resolution 1368 (2001), at para 1, unequivocally condemning “in the strongest terms the horrifying terrorist attacks” of 9/​11 and stating that it “regards such acts, like any act of international terrorism, as a threat to international peace and security”; UN Security Council Resolution 1373 (2001), reaffirming “its unequivocal condemnation of the terrorist attacks” of 9/​11, and “expressing its determination to prevent all such acts”; UN Security Council Resolution 1377 (2001), reaffirming “its unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, regardless of their motivation, in all their forms and manifestations, wherever and by whomever committed”; and UN Security Council Resolution 2249 (2005), “Reaffirming that terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security” and confirming that “any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed.” Ibid. Summary Records of the 28th meeting 7 October-​14 November 2014, Sixth Committee, General Assembly Official Records, 69th Session (A/​C6/​55/​s r28) (2014): See, for example, the statements by Mr T Joyini on behalf of South Africa (speaking for the African Group) (“There is no justification for terrorism. African states strongly and unequivocally

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unequivocal condemnation of terrorism by the international community has also been confirmed in international jurisprudence. In the Israeli Wall Advisory Opinion, the International Court of Justice (icj) stated that “deliberate and indiscriminate attacks against civilians with the intent to kill are the core element of terrorism which has been unconditionally condemned by the international community regardless of the motives which have inspired them.”86 From what is said above, it is clear that terrorism is under no circumstances justifiable for any reason –​political, philosophical, ideological, racial, ethnic or religious. The prohibition of terrorism is therefore accepted and recognised by the international community as a whole as a norm from which no derogation is allowed and meets the criteria to qualify as jus cogens. 4.2 Characteristics In addition to the criteria, the general nature and characteristics of jus cogens were set out in Draft Conclusion 3 adopted by the Drafting Committee of the ilc at its seventy-​first session.87 The conclusion states that: Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community of States, are hierarchically superior to other rules of international law and are universally applicable.88 It is important to appreciate that these characteristics are not additional criteria for norms to qualify as jus cogens and it is sufficient if a relevant norm meets the criteria discussed in paragraph 4.1 for it to qualify as jus cogens. However,

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condemn terrorism in all its forms and manifestations, as well as all acts, methods and practices of terrorism wherever, by whomever, against whomever committed, including state terrorism. For no cause or grievance can terrorism be justified”) and Mr E Zagaynov on behalf of the member states of the Shanghai Co-​operation Organisation and the Russian Federation (confirming the condemnation of “terrorism in all its forms and manifestations, regardless of its motivation, whenever, wherever and by whomsoever committed”). Similar statements were made by other States. See further 8th BRICS Summit –​Goa Declaration, 2017 available at www.brics2017.org/​English/​Documents/​Summit/​201701/​ t20170125_​1410 (accessed 26 March 2020), at para. 57, condemning terrorism in all its forms and manifestations and stressing that there can be “no justification whatsoever for any acts of terrorism, whether based upon ideological, religious, political, racial, ethnic or any other reasons.” Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, icj Reports 2004, p. 136 at para. 5. See Draft Conclusion 3 of the Draft Conclusions on Peremptory Norms of International Law (above note 61). Ibid.

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the characteristics are descriptive elements and as such may be relevant when assessing the criteria for jus cogens.89 Furthermore, these characteristics –​the protection of fundamental values, hierarchical superiority and universal applicability –​are arguably interconnected: it is because of the importance of the fundamental values that jus cogens seek to protect that these norms are necessarily hierarchically superior above other norms of international law (and cannot be set aside by such norms) and are universally applicable. The basic right to human dignity is a fundamental value of the international community.90 Acts of terrorism reflect a tendency to ignore the victims’ shared humanity and to regard them as devalued objects;91 rather than being treated as humans, they are victimised and treated as objects and used as instruments of political gain through violence and incitement of fear.92 As early as 1988, the Maritime Safety Convention condemned the world-​wide escalation of acts of terrorism which “seriously impair the dignity of human beings.”93 The G20 has also condemned terrorist attacks as “an unacceptable affront to all humanity.”94 Further, there is a correlation between the protection of the fundamental values of the international community, such as the right to human dignity, and the principle of non-​derogation. Hannikainen has argued that allowing derogations from norms that protect an overriding value of the international community of states would seriously jeopardise such a value.95 This also appears from the fact that the persistent objector rule does not apply to jus cogens, as 89 90

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Tladi Second Report (above note 50), at paras. 18, 31, 89. The Constitutional Court held in Hoffman v South African Airways 2001 1 sa 1 (cc), at para. 43, that the interests of the community lie inter alia in the recognition of the inherent dignity of every human being. The preamble of the 1945 United Nations Charter reaffirms faith in fundamental human rights and in “the dignity and worth of the human person” and the 1948 Universal Declaration of Human Rights provides in the preamble that “recognition of the inherent dignity … is the foundation of freedom, justice and peace in the world.” The preambles to the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights, also provide that the equal and inalienable rights of humans “derive from the inherent dignity of the human person.” English (above note 15), at 261. Fotion (above note 67), at 46. 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. G20 Statement on the Fight Against Terrorism, www.consilium.europa.eu/​en/​meetings/​internationalsummit/​2015/​11/​g20-​statement-​on-​the-​fight-​against-​terrorism_​pdf/​ (accessed 7 August 2020). Lauri Hannikainen Peremptory Norms ( Jus Cogens) in International Law (Finnish Lawyers’, 1988), at 207.

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set out Draft Conclusion 14(3) of the Draft Conclusions on jus cogens provisionally adopted on first reading.96 Byers notes that the non-​derogable character of jus cogens results from the fact that States simply do not believe that it is possible to persistently object to, or contract out of, norms reflecting fundamental values of the international community.97 Accordingly, any persistent objection to the prohibition of terrorism will have no effect on its jus cogens status. There also is a close relationship between the universal application of jus cogens norms and the fact that these norms lead to erga omnes obligations.98 The icj has confirmed that peremptory norms exist on the basis of their relation to the international community,99 and the obligations of a state towards the international community as a whole is the concern of all states.100 In the Clavel case, the Argentinian Supreme Court stated that: Terrorism involves the commission of cruelties upon innocent and defenseless people causing unnecessary suffering and danger against the lives of the civilian population. It is a system of subversion of order and public security … a serious threat to the peace and security of the international community. This is why its prosecution is not the exclusive interest of the State directly injured by it, but rather it is an aim whose achievement benefits, ultimately, all civilized nations, who are thereby obligated to cooperate in the global fight against terrorism.101

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See Draft Conclusion 14(3) of the Draft Conclusions on Peremptory Norms (above note 61). 97 Michael Byers “Conceptualising the Relationship between Jus Cogens and Erga Omnes rules” (1997) 66 Nordic Journal of International Law 211, at 212; 219–​220. 98 Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​714)(2018), at paras. 107, 111. 99 United States Diplomatic and Consular Staff in Tehran (US v Iran), Provisional Measures, icj Reports 1979, p. 7; United States Diplomatic and Consular Staff in Tehran (US v Iran), Merits, icj Reports 1980, p. 3, at para. 92; Prosecutor v Furundzija (above note 61), at paras. 151-​157 & 260-​262; Case Concerning East Timor (Portugal v Australia), icj Reports 1995, p. 90, at para. 214. 100 Barcelona Traction Light and Power Company Limited (Belgium v Spain), icj Reports 1970, p. 3, at paras. 32-​34. In the South West Africa Cases (Ethiopia and Liberia v South Africa) Second Phase, icj Reports 1966, p. 6, at paras. 295–​6, Judge Jessup, in a dissenting opinion, held that “states may have a general interest –​cognisable in the International Court –​in the maintenance of an international regime adopted for the common benefit of the international society.” 1 01 Enrique Lautaro Arancibia Clavel, Judgement of the Supreme Court of Argentina, 24 August 2004, at paras. 51–​52.

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From what is set out above, State practice and opinio juris support the elevation of the prohibition of terrorism to the jus cogens of our time. The prohibition of terrorism is accepted and recognised by the international community of States as a whole as a norm which allows for no derogation in any circumstance. It meets both the criteria for, and embody the characteristics of, jus cogens. The next section will consider the interaction between the prohibition of terrorism and other jus cogens. It will discuss specifically the implication of counter-​terrorism efforts by States where such measures may infringe the prohibition of torture and the right to a fair trial. 5

The Prohibition of Terrorism and the Prohibition of Torture

This section will consider the use of torture during counter-​terrorism measures. Notwithstanding the fact that the prohibition of torture is widely regarded as jus cogens102 and non-​derogable in all circumstances,103 acts of torture remain widespread.104 During the French-​Algiers war, French soldiers contended that the torture of suspected terrorists is a legitimate and effective

102 See Belgium v Senegal (Questions Relating to the Obligation to Prosecute or Extradite), icj Reports 2012, p. 422, at paras. 99-​100. The icj confirmed that the prohibition of torture is part of customary international law and had become jus cogens. It stated that the prohibition against torture is grounded in widespread international practice and the opinio juris of states and appears in numerous international instruments of universal application as well as the domestic law of almost all states, and acts of torture are regularly denounced by national and international fora. See further Siderman de Blake v Republic of Argentina, Judgement of the US Court of Appeals for the Ninth Circuit, 22 May 1992, at 717; Koigi Wamwere v the Attorney-​General, Kenya Supreme Court of Appeal, 3 July 2015, at 6; R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3), Judgement of the UK House of Lords, 25 November 1998; and Report of the Special Rapporteur (P Kooijmans) on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (E/​c n4/​1986/​15) (1986), at 1 para. 3. 103 See e.g. Tachiona v Mugabe, Judgement of the US District Court for the Southern District of New York, 30 October 2001, at 264, 279, where the US District Court for New York noted that “torture is among the practices defined in the world’s nations, through treaties, conventions and declarations” as a violation of customary international law, “non-​derogable in all situations and as a jus cogens norm.” 104 Amnesty International “Torture in 2014: 30 Years of Broken Promises”, May 2014 available at www.amnestyusa.org/​sites/​default/​files/​act400042014en.pdf (accessed 12 April 2020); Alex J Bellamy “No pain, no gain? Torture and Ethics in the War on Terror” (2006) 82(1) International Affairs 121, at 121; observing that the use of torture and/​or cruel and degrading treatment has become a core component of the global war on terror. See generally Robert Edgerton “The Worldwide Practice of Torture” (Edwin Mellen Press Ltd, 2007).

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tool during counter-​terrorism efforts.105 The US also has supported interrogation methods in respect of terrorist suspects which amount to torture. A memorandum signed on 2 December 2002 by erstwhile US Secretary of Defense Donald Rumsfeld authorised a variety of “counter-​resistance techniques to aid in the interrogation of detainees in Guantanamo Bay” ranging from incentives to measures such as food deprivation, standing in stress positions, hooding, stripping, extended periods of isolation, removal of clothing and exposure to heat or cold.106 In 2003, while President George W. Bush at the International Day in Support of Victims of Torture publicly confirmed the US’ commitment to the world-​wide elimination of torture and declared that the US “are leading this fight by example”,107 American soldiers were perpetrating acts of torture against suspected terrorists at Abu Ghraib prison in Iraq and at Guantanamo Bay in Cuba.108 This section explores the use of torture as part of counter-​terrorism techniques. It asks whether, if the prohibition of torture and the prohibition of terrorism are both jus cogens, both norms can be applied in their entirety to 105 See Raphaelle Branche “Torture of Terrorists? Use of Torture in a ‘War against Terrorism’: Justifications, Methods and Effects: the Case of France in Algeria 1954–​1962” (2007) 89 International Review of the Red Cross 543, at 546; 549–​551. 106 Memorandum for Secretary of Defense from General Counsel William J. Haynes ii “Counter-​ Resistance Techniques”, signed and approved by Donald Rumsfeld on 2 December 2002 available at www.washingtonpost.com/​wp-​srv/​nation/​documents/​dodmemos.pdf (accessed 26 September 2020). While approving the memorandum, Rumsfeld hand wrote on the document “However, I stand for 8–​10 hours a day. Why is standing limited to 4 hours? D.R.” This is in reference to the counter-​resistance recommended technique of making detainees stand for extended periods of time. 107 Statement by the President, United Nations International Day in Support of Victims of Torture, available at www.georgewbush-​whitehouse.archives.gov/​news/​releases/​2003/​ 06/​20030626-​3.html (accessed on 25 September 2020). 108 An investigation documented by U.S. Army Major General Antonio M. Taguba revealed “systemic”, intentionally perpetrated” “sadistic”, “blatant”, and “wanton criminal abuses” at the prison between October and December 2003. Soldiers threatened detainees with guns and military dogs, beat prisoners, “broke chemical lights and poured the phosphoric liquid on detainees,” “sodomized [a prisoner] with a broomstick and chemical light, poured freezing water on naked detainees, [and] videotaped and photographed detainees” while they were forced into “sexually explicit positions.” Prisoners were exposed to extreme heat and cold, subjected to “believed-​drowning situations,” deprived of sleep for many days, kept naked for several days at a time, and subjected to mock executions, burning, and electric shock. See Article 15–​16 Investigation of the 800th Military Police Brigade –​the Taguba Report: a Report prepared by Maj.Gen. am Taguba on Alleged Abuse of Prisoners by Members of the 800th Military Police Brigade at the Abu Ghraib Prison, Baghdad, available at https://​fas.org/​irp/​agency/​dod/​taguba.pdf (accessed 26 September 2020), at 6–​7, 16–​17.

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the same situation. Alternatively, is there a norm conflict, and if so, can this conflict be resolved by the limitation one of the norms –​or can both be maintained as valid?109 In order to decide whether the prohibition of torture is capable of limitation, the scope of the prohibition under international law will be discussed. 5.1 The Definition of the Prohibition of Torture Article 1(1) of the Convention Against Torture of 1984 (cat) defines torture as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In Zheng v Ashcroft110 the Court adopted a liberal interpretation of the term “acquiescence”, holding that torture does not require that the acts be “willfully accepted” by government officials111 as long as there is a sufficient nexus between the public officials and those who inflicted the harm where the officials were “aware” of the torturous acts.112 The key point in the definition, however, is the identified purpose of “obtaining … information or confession” or “punishing him for an act he or a third person has committed or is suspected of having committed.” In other words, acts of torture cannot be inflicted on a person in order to obtain information or punishing someone for committing acts of terror. But does this apply even if the information sought could lead to preventing a massive terror attack? Or to punish someone responsible for the commission of the most heinous terrorist acts? Does this mean that the prohibition of torture is prioritised over the prohibition of terrorism? The next section will consider whether the limitation of the prohibition of torture is arguable during counter-​terrorism measures in light of what has been discussed above. 109 João Ernesto Christófolo Solving Antinomies Between Peremptory Norms in Public International Law (Schulthess, 2016), at 24. 110 Zheng v Ashcroft, Judgement of the US Court of Appeals for the Ninth Circuit, 18 June 2003. 111 Id., at 1196–​97. 112 Id., at 1189. The test is whether the government “would turn a blind eye to torture” (1194).

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5.2 A Limitation of the Scope of the Prohibition of Torture? The view that torture is allowed during counter-​terrorism efforts is supported by some scholars.113 It has been argued that there are “very unpleasant but very real cases in which we are morally permitted –​indeed morally compelled –​to do terrible things”114 –​and thus that leaders may violate morality in order to secure the good of the communities they protect.115 As an example, Dershowitz notes that where it concerns the violation of the rights of a single criminal individual to save the lives of thousands of innocent people, such as where a terrorist has placed a bomb in a large city that will cause catastrophic loss of life116 and he or she is the only person who knows where the bomb is and how to defuse it, torture is allowed.117 Any limitation of the prohibition of torture has proved however to be a slippery slope, opening the door to government abuse. This is illustrated by the French use of torture in the French-​Algiers war as well as the application of enhanced interrogation techniques by Israel and the US respectively. During its fight against the National Liberation Front (nla) in the Algeria War, France used torture extensively.118 Its main justification was acts of terror perpetrated 113 Richard Posner “Torture, Terrorism, and Interrogation” in Stanley Levinson (ed), Torture: A Collection (Oxford, 2004), at 294 (arguing that “there is such a thing as a lesser wrong committed to avoid a greater one”); Alan Dershowitz “Tortured Reasoning” in Stanley Levinson (ibid.) at 266 (arguing that torture is being used in the war on terrorism and that it is better for the rule of law to have such practices inside rather than outside the legal system); Marcy Strauss “Torture (2003–​2004)” New York Law School Law Review, at 48, who argues that “torturing a suspect as a last resort, when there is no alternative and when hundreds, thousands, potentially hundreds of thousands of lives hang in the balance, is not morally bankrupt –​it is the only conclusion that makes sense.” 114 Charles Krauthammer “The Truth about Torture” in Levinson (ibid.). 115 See Michael Waltzer “Political Action: The Problem of Dirty Hands” in Levinson (above note 113). 116 Fatima Kola “Torture and Terrorism –​a Case Study” (2007) Supplement UCL Jurisprudence Review 85, at 97. 117 The ticking time-​bomb scenario has been criticized for being entirely hypothetical and resting on numerous untested assumptions such as certainty of guilt, the proportionality of the crime to the consequence, that there are no other options available, efficacy of torture and that the torture itself must be applied in a controlled manner so that it meets its objective and nothing more. See Vittorio Bufacchi and Jean Maria “Torture, Terrorism and The State: A Refutation of the Ticking-​Bomb Argument” (2006) 23 Journal of Applied Philosophy 355, at 355; Alan Dershowitz “Tortured Reasoning” in Levinson (above note 113) at 266. Michael Levin “The Case for Torture” 1982 available at www.people.brandeis. edu/​~teuber/​torture.html (accessed on 5 September 2017) who states that “if the only way to save those lives is to subject the terrorist to the most excruciating … pain, what grounds can there be for not doing so? … None. 118 Branche (above note 105), at 543, 553.

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by the nla.119 While it was never explicitly justified in writing, torture, on the whole, was both tolerated and encouraged.120 The French authorities referred to the actions of the nla as those of an “insurrection”, a “rebellion”, “terrorism” or acts of “outlaws” and regarded the situation as an internal French affair.121 It also insisted that the Geneva Conventions, which it ratified in June 1951, were not applicable.122 This is despite the fact that Common Article 3 to the Geneva Conventions apply to non-​international armed conflicts. Further, supporters of the nla were positioned as outlaws who permit a high level of violence and who are to blame for any violence they may suffer.123 As supporters of the armed insurrection rarely wore uniforms, French soldiers found it challenging to distinguish between their enemies and Algerian civilians. This contributed to all civilians being regarded as suspects or possible sources of intelligence with regards to the movement of members of the armed insurrection124 and torture becoming an ordinary, everyday form of violence.125 The slippery slope of allowing any limitation on the scope of the prohibition of torture is further evidenced by the use of “enhanced interrogation techniques” used by both the US and Israel. In Israel, the government appointed the Landau Commission to review the interrogation methods used against terrorist suspects.126 The Commission permitted “moderate physical pressure” in the interrogation of detainees suspected of hostile terrorist activities. The Israeli human rights group B’Tselem estimates that security services subsequently used techniques which constituted torture against 85 percent of Palestinian detainees under interrogation.127 1 19 120 121 122

1 23 124 125

126 127

Id., at 543. Id., at 547. Id. This was despite the fact that France had been largely instrumental in drafting the Universal Declaration of Human Rights and was a signatory to the 1950 European Convention on Human Rights, although it did not agree to ratify the latter until 1974, well after the Algerian War. Ibid., at 546. Id. Id., 548. As was the case with the American public with regards to acts of torture by US soldiers in Abu Ghraib and Guantanamo Bay, the French public eventually realised that torture was not merely a series of blunders or isolated incidents, but a widespread practice. See Branche (above note 105), at 558. The Commission’s recommendations were eventually struck down by the Supreme Court. See Public Committee Against Torture v State of Israel hcj 5100/​94 (1999) 817. “Israeli Government Report Admits Systematic Torture of Palestinians” The Guardian,13 August 2017, available at www.theguardian.com/​world/​2000/​ feb/​11/​israel (accessed 13 August 2017).

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In the US, the sanctioning of “enhanced interrogation methods” also led to an escalation in acts of torture during the interrogation of detainees. A psychologist who developed the enhanced interrogation programme for the US government, James Mitchell, pointed out that once sanctioned, interrogators used these methods in abusive and unauthorised ways. Under the Bush administration, Khalid Sheikh Mohammad, alleged architect of the 9/​11 attacks, was reportedly subjected to water-​boarding 183 times.128 Testifying at the US military court at Guantanamo in a pretrial hearing of another 9/​11 terrorist suspect, al-​Baluchi, Mitchell explained that cia interrogators used Al-​Baluchi as a “training tool” for employees learning the agency’s “enhanced interrogation techniques”.129 Al-​Baluchi was reportedly slammed into a wall, doused with water and slapped multiple times in the face and stomach, and put in stress positions, including standing naked in a standing sleep deprivation position for a day.130 The right to human dignity underlies the prohibition of torture.131 Amnesty International points out that “[e]‌very time a helpless individual is being tortured, our own dignity and humanity is being diminished and degraded” and there is no act which is “more a contradiction of our humanity than the deliberate infliction of pain by one human being on another, the deliberate attempt over a period of time to kill a man without his dying.”132 Even in the most difficult circumstances such as the fight against terrorism, torture and inhuman or degrading treatment or punishment are thus prohibited in absolute terms.133 The above discussion confirms that allowing any limitation on the absolute prohibition of torture, including “enhanced interrogation techniques” and “lighter” forms of torture, results in an increase in acts of torture. The next section will consider fair trial rights in the context of counter-​terrorism measures 128 Peter Miller “Torture and Social Modernization” Western Political Science Association Meeting Paper (2010), at 2. 129 Sacha Pfeiffer “Architect of CIA’s Torture Program Says It Went Too Far” available at www. npr.org/​2020/​01/​23/​799130233/​psychologist-​who-​helped-​create-​interrogation-​methods-​ says-​cia-​may-​have-​gone-​too (accessed 24 September 2020). 130 Ibid. 131 Theodor Meron Human Rights and Humanitarian Law as Custom (Clarendon, 1989), at 130. See further the preamble of the 1985 Inter-​American Convention to Prevent and Punish Torture. 132 Amnesty International (above note 104), at 11, 25. 133 See Public Committee Against Torture v State of Israel hcj 5100/​94 (1999) 817; Case of Igor Portu and Mattin Sarasola Spanish Supreme Court (2 November 2011); Labita v Italy Application no 26772/​95 echr (6 April 2000) para 119; Gäfgen v Germany Application no 22978/​05 (1 June 2010) 87; Ramirez Sanchez v France Application no 59450/​00 (4 July 2006) para 116; Al-​Adsani v UK (2001) 34 ehrr 273, 123 ilr 24, para 59.

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and consider whether any limitation of fair trial rights is possible during counter-​terrorism. 6

The Right to a Fair Trial and the Prohibition of Terrorism

After 9/​11 and Guantanamo Bay, the erosion of various fair trial rights during counter-​terrorism efforts has become a subject of increasing concern.134 The right to a fair trial consists of various rights, such as the right to a fair and public hearing by an independent and impartial tribunal; the right to be presumed innocent until proved guilty; the right to be promptly informed of charges; the right against self-​incrimination, the right to legal representation, the right to examine witnesses, the right to an interpreter and the right against double jeopardy.135 The question arises whether States can derogate from any of the above fair trial rights during counter-​terrorism measures. Article 4(1) of the International Covenant on Civil and Political Rights (iccpr) lists certain rights from which no derogation is allowed, even in times of public emergency. The right to a fair trial is however not included in the list of non-​derogable rights.136 Chapter ix(2) of the Guidelines on Human Rights and the Fight against Terrorism adopted by the Committee of Ministers of the Council of Europe considers that the imperatives of the fight against terrorism may justify certain restrictions to the right 134 Ambos and Poschadel “Terrorists and Fair Trial: The Right to a Fair Trial for Alleged Terrorists Detained in Guantánamo Bay” (2013) 9 Utrecht Law Review 109, at 109; see further Roza Pati Due Process and International Terrorism (Brill, 2009), at 455, 438–​441 noting that trials before military tribunals may jeopardise the right to an independent and impartial tribunal, and that individuals must have the ability to challenge the lawfulness of their detention, even in times of emergency; Joan Fitzpatrick “Speaking Law to Power: The War against Terrorism and Human Rights” (2003) 14 European Journal of International Law 241, at 243, 250. 135 See art 14(1) of the 1966 International Covenant on Civil and Political Rights; art 10 of the 1948 Universal Declaration of Human Rights; art 6 the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, art 8(1) of the 1978 American Convention of Human Rights; art 7(1)(b) of the 1986 African Charter on Human and Peoples’ Rights; and art 75(4)(d) of Additional Protocol i and art 6(2)(d) of Additional Protocol ii to the 1914 Geneva Conventions. The right to a fair trial is also guaranteed in art 66 of the 1998 International Criminal Court Statute and the statutes of international criminal tribunals, e.g. art 17(3) of the 2002 Statute of the Special Court for Sierra Leone, as well as in law of war manuals e.g. para 2.2.2.3 of Sweden’s 1999 International Humanitarian Law Manual. 136 Art 4(1) and (2) of the iccpr. Similarly, the European Convention on Human Rights does not list the right to a fair trial as non-​derogable.

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of defence of a terrorist suspect, for example with regard to the arrangements for access to counsel and the case file and the use of anonymous testimony.137 In this regard, the courts have allowed limitations of certain fair trial rights of suspected terrorists, such as the right to a public (as opposed to a closed) hearing (where a closed hearing was required to ensure the efficacy of a secret surveillance regime to support the fight against terrorism)138 and a temporary delay with regard to the right to legal counsel.139 Certain fundamental principles of a fair trial however have been interpreted as being non-​derogable.140 In General Comment 29, the Human Rights Committee, in dealing with derogations from provisions of the iccpr during a state of emergency, confirmed that only a court of law may try and convict a person for a criminal offence, that the presumption of innocence must be respected, and that the right to a hearing to challenge the lawfulness of detention must not be diminished.141 The right of access to court, the presumption of innocence and the right to review are core fair trial rights and jus cogens, accepted and recognised by the international community of states as a whole as norms from which no derogation is permitted.142 The Algerian war as well as the US invasion in Iraq discussed earlier infringed core fair trial rights. The Algerian war was marked by a disappearance of arrested persons outside any legal framework and an increase in summary executions.143 As for the Iraqi war, approximately 43 000 Iraqi’s had been arrested and detained during the first year of the US occupation and over 100 000 over the seven-​year US occupation.144 It was reported that between 70 and 137 See Council of Europe Committee of Ministers “Guidelines on Human Rights and the Fight against Terrorism” 11 July 2002, available at www.refworld.org/​docid/​47fdfb220.html (accessed on 21 September 2019); Report of the United Nations High Commissioner for Human Rights on the Protection of Human Rights and Fundamental Freedoms While Countering Terrorism (A/​h rc/​22/​26)(2012), at para. 38; Ahani v. Canada, Communication of the UN Human Rights Committee, 15 June 2004, at para. 10.4. 138 Kennedy v United Kingdom, Judgement of the ECtHR, 18 May 2010, at paras. 184-​91. 139 Case of Ibrahim & Others v The United Kingdom, Judgement of the ECtHR, 13 September 2016. 140 General Comment 29: Derogations from provisions of the Covenant during a state of emergency, General Comment on article 4, unhr Committee (ccpr/​C/​21/​Rev1/​Add11) (2001), at para. 11. 141 Ibid. 142 For a comprehensive review of state practice in this regard, see De Beer (above note 43), at 178–​182. 143 Branch (above note 105), at 555. 144 Robert Bejesky “The Abu Ghraib Convictions: A Miscarriage of Justice” (2013) 103 Buffalo Public Interest Law Journal 102, at 108. See further Rajiv Chandrasekaran and Scott Wilson “Mistreatment of Detainees Went Beyond Guards’ Abuse; Ex-​Prisoners, Red

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90 percent of persons had been arrested by mistake”145 and were held without legal redress.146 In Prosecutor v Furundžija the International Criminal Tribunal for the former Yugoslavia (icty) confirmed that the right to be tried before an independent and impartial tribunal is generally recognized as being an integral component of the right to a fair trial.147 Courts and tribunals have questioned the lengthy detentions of terrorist suspects. The ECtHR has criticized France for allowing prolonged periods of detention on remand in relation to terrorist investigations, which often amounted to years.148 In Ramirez Sanchez v France the suspect was in solitary confinement for eight years pursuant to his conviction for terrorist-​related offences.149 The Court found that he had no means of challenging a decision to extend his detention in solitary confinement and was deprived of his right of access to an effective remedy.150 In Rasul v Bush detainees held at Guantanamo Bay, designated as enemy combatants by the US government, alleged that they were not allowed access to counsel or knowledge of the charges against them, and had not had access to a fair trial.151 The US Supreme Court held that the detainees had no chance to challenge the justification for their detainment.152 In Al Nashiri v Poland the applicant, suspected of terrorism, alleged that he had been held at a cia “black site” in Poland with Poland’s knowledge, without

145

146 147 148

149 1 50 151 152

Cross Cite Flawed Arrests, Denial of Rights” Washington Post, 11 May 2004, at A1; Isabel Hilton “The 8001b Gorilla in American Foreign Policy: Alleged Terror Suspects are Held Incommunicado All Over the World”, 27 July 2004, available at www.guardian.co.uk/​ print/​0,3858,4980261-​103390,00.html (accessed 25 September 2020). See International Committee of the Red Cross “Report of the International Committee of the Red Cross (icrc) on the Treatment by the Coalition Forces of Prisoners of War and Other Protected Persons by the Geneva Conventions in Iraq during Arrest, Internment and Interrogation” (2004). Ash U. Bali “Justice Under Occupation: Rule of Law and the Ethics of Nation Building in Iraq” (2005) 30 Yale Journal of International Law 431, at 468–​69. Prosecutor v Furundžija, Judgement of the Trial Chamber of icty, 10 December 1998, at 260. The icty cited art 21(2) of the icty Statute and art 14 of the iccpr. Gard Bernard v France, Judgement of the ECtHR, 26 September 2006. For examples of detentions of suspects which lasted more than 3 years, see Morgani v France, Report of the EComHR, 30 November 1994 and Debboub alias Husseini Ali v France, Judgement of the ECtHR, 9 November 1999. Ramirez Sanchez v France Application, Judgement of the ECtHR, 4 July 2006, at paras. 165, 179. Ibid. Rasul v Bush, Judgement of US District Court, 30 July 2002; Rasul v Bush, Judgement of the US Supreme Court of Appeals for the District of Columbia Circuit, 28 June 2004. Rasul v Bush supreme court decision (ibid.), at iv.

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any legal basis or any opportunity to contact his family.153 The ECtHR found a contravention of the right to an effective remedy.154 Pre-​trial detentions have also been criticised as violating the principle of the presumption of innocence.155 The Peru Constitutional Court in the case of Marcelino Tineo Silva & Others held that “justifying … pre-​trial detention solely with the reproachable nature and negative social consequences of the crime of terrorism would violate the principle of presumption of innocence” because “justifying a person’s detention based on the degree of danger or nature of the crime could result therein that a person is subjected to punishment in advance …”156 In addition, public statements with regard to the guilt of suspected terrorists before a formal finding is made have been held to be contrary to the presumption of innocence.157 In 2014, while he was still mayor of London, now UK Prime Minister Boris Johnson called for “guilty until proven innocent” for suspected terrorists, reversing the presumption of innocence. The late Senator McCain reportedly said of a suspected terrorist, Saipov: “Take him to Guantánamo … He’s a terrorist, he should be kept there. There’s no Miranda rights for somebody who kills Americans.”158 Such statements come at a great cost to democratic legitimacy and the judicial system and ultimately provide arguments to the defence team that may have the opposite effect of the outcome anticipated by these statements.

153 Al Nashiri v Poland Application, Judgement of the European Court of Human Rights, 24 July 2014. 154 Id., at para. 598. 155 See Suárez Rosero v Ecuador, Judgement of the Inter-​American Court of Human Rights, 12 November 1997, where the accused was detained for almost 4 years. The Court held that preventative detention violated the presumption of innocence of the accused. See further A v Secretary of State for the Home Department, Judgement of the UK House of Lords, 16 December 2004; Pagnoulle v Cameroon, Judgement of the African Commission on Human and Peoples’ Rights, 1997. 156 Marcelino Tineo Silva & Others, Peru Constitutional Court Case, 3 January 2003, at para. 122. 157 Gridin v Russia Communication, Decision of the unhr Committee,20 July 2000 (ccpr/​ C/​69/​D/​770/​1997), at para 8.3. See also Saidova v Tajikstan Communication, Decision of the unhr Committee, 20 August 2006 (ccpr/​C/​81/​D/​964/​2001), at para 6.6. Allenet de Ribermont v France, Judgement of the ECtHR, 10 February 1995, at para. 41. Saunders v UK, Judgement of the ECtHR,17 December 1996. 158 Elie Mystal “Unpacking the ways Trump’s NYC tweets violate due process”, 2 November 2017, available at www.abovethelaw.com/​2017/​11/​unpacking-​the-​ways-​trumps-​nyc-​ tweets-​violate-​due-​process/​ (accessed on 20 October 2019).

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Recently, concerns have also been raised regarding the enactment of the Philippines Anti-​Terrorism Act and its effect on fair trial rights.159 The Anti-​ Terrorism Act legalizes extended periods of warrantless arrests and scraps the provision on payment of damages for wrongful detention, an Anti-​Terrorism Council comprised of Cabinet officials determines who is a terrorist and can authorize arrests without warrant. It has been cautioned that this Act sanctions “warrantless arrests and prolonged pre-​trial detention without judicial supervision”.160 The right to human dignity also underlies core fair trial rights.161 Core fair trial rights such as the presumption of innocence protects “the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct in light of the grave consequences involved, including the loss of physical liberty and social stigma”.162 Core fair trial rights can therefore not be infringed during counter-​terrorism measures. 7

Conclusion

Jus cogens emerge in response to contemporary challenges.163 Terrorism is the contemporary challenge of our time; the calculated use of the suffering and death of innocent civilians, including children, in order to the attain a political goal “shocks the conscience of humanity.”164 Notwithstanding the lack of a universally agreed upon treaty definition, the elements of international terrorism have emerged under customary international law: it is an act of violence causing harm to civilians; marked by an intention to spread terror or fear; a political purpose and a transnational element. The prohibition of terrorism is accepted and recognised by the international community as a whole as a norm from which no derogation is permitted. It cannot be justified by any political, 159 “Philippines: New Anti-​ Terrorism Law Undermines Safeguards Against Arbitrary Detention and Torture” https://​www.omct.org/​en/​resources/​statements/​ (accessed 25 September 2020). 160 Ibid. 161 Nsongurua J Udombana “The African Commission on Human and Peoples’ Rights and the Development of Fair Trial Norms in Africa” (2006) 6 African Human Rights Law Journal 299, at 299–​332, sec 2.1. 162 R v Oakes, Judgement of the Supreme Court of Canada, 28 February 1986. 163 See Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (jus cogens) (A/​c n.4/​727)(2019), at paras. 122-​123, stating that “There most certainly are other norms of jus cogens beyond the ones identified and the draft conclusion will make it clear that the list is not exhaustive.” 164 Weatherall (above note 38), at 627.

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philosophical, ideological, racial, ethnic, religious or other considerations. The prohibition of terrorism also embodies the characteristics typical of jus cogens: the protection of fundamental values, in particular the right to human dignity, as well as hierarchically superiority and universal applicability. However, inasmuch as the prohibition of terrorism protects the fundamental right to human dignity, so do other jus cogens, such as the prohibition of torture and core fair trial rights. This contribution has illustrated how counter-​ terrorism measures which overreach and violate other jus cogens create an environment where human rights abuses thrive; and that any limitation of the prohibition of torture and core fair trial rights is a slippery slope. Ultimately, a limitation of other jus cogens during counter-​terrorism measures undermine the very values that the fight against terrorism are meant to protect.

Acknowledgements

This chapter draws on the following previous works of the author: Aniel de Beer The Prohibition of Terrorism as a Norm of General International law (Jus Cogens) (Brill, 2019); Aniel de Beer and Dire Tladi “The Prohibition of Terrorism as a Jus Cogens Norm” (2017) 42 South African Yearbook of International Law 1.

Chapter 22

The Jus Cogens Status of the Prohibition on the Use of Force What Is Its Scope and Why Does It Matter? Olivier Corten and Vaios Koutroulis 1 Introduction* If peremptory norms of general international law (jus cogens) are norms that “reflect and protect fundamental values of the international community” as the International Law Commission (ilc) suggests,1 composing a rudimentary “international ordre public or public order”,2 then there is little doubt that maintaining international peace and security forms part of these values. According to the International Court of Justice (icj), the prohibition on the use of force in international relations is a “cornerstone of the United Nations Charter”.3 This norm, which embodies and materialises the objective of maintaining international peace and security set down in the Charter, appears to be the ideal candidate for jus cogens status. Indeed, there seems to be little disagreement that the prohibition on the use of force forms part of jus cogens: the prohibition is listed first among the examples of peremptory norms cited by the ilc Special Rapporteur Dire Tladi in the indicative list included in his fourth report to the ilc,4 noting that “the Commission’s recognition of the prohibition of

* Part of this chapter is based on the extensive analysis on the prohibition on the use of force found in Olivier Corten The Law Against War (2nd ed., Hart Publ., forthcoming). For the convenience of the reader, references shall made to the first edition of the book, published in 2010. All internet sources were accessed on 12 June 2020. 1 Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), adopted on first reading Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), 142, Draft conclusion 3 entitled “General Nature of Peremptory Norms of General International Law (Jus Cogens)”. 2 First Report of the Special Rapporteur (Dire Tladi) on Jus Cogens (A/​c n.4/​693) (2016), para. 63. 3 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), icj Reports 2005, p. 168, at para. 148. 4 Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019), at para 60.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_023

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aggression as a norm of jus cogens is supported by practice and other subsidiary materials”.5 In view of the above, is there anything more left to say about the jus cogens character of the prohibition on the use of force as set down in the UN Charter? We suggest that there is. Indeed, one need not dig too deep to uncover the central pending question behind the “general consensus”6 on the peremptory character of the prohibition. Starting from the premise that the violations of the prohibition on the use of force under Article 2(4) of the UN Charter must be distinguished into “the most grave forms of the use of force (those constituting an armed attack)” and “less grave” ones,7 there are different views as to whether it is only the prohibition of aggression that is part of jus cogens or whether the entire prohibition on the use of force enjoys the status of a peremptory norm of general international law. This is reflected in the position adopted so far by the ilc in its work on peremptory norms: the indicative list of jus cogens norms adopted at first reading by the ilc mentions “the prohibition of aggression”,8 a terminology that seems to imply that only the prohibition of the most grave forms of use of force is considered as peremptory. However, this impression is dispelled by the fourth report of the ilc Special Rapporteur. Dire Tladi speaks of “the prohibition of aggression or aggressive force (sometimes referred to as ‘the law of the Charter concerning the prohibition of the use of force’)”9 and makes clear that his assessment refers to the prohibition of the use of force in general, explaining that [a]‌s a terminological matter, the present report will, from this point onwards, refer to the prohibition of aggression in lieu of the possible

5 Ibid., at para. 68. See also the long list of scholars cited in footnote 86 of the report. 6 See the remarks by Georges Abi-​Saab during the panel discussion on “Terrorism, International Security and the Use of Force” in Giuseppe Nesi (ed.) International Cooperation in Counter-​ terrorism: The United Nations and Regional organizations in the Fight Against Terrorism (Routledge, 2016), at 272. 7 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), icj Reports 1984, 101, at para. 191.See also Jus ad bellum, Ethiopia’s Claims 1–​8, Partial Award of the Eritrea-​Ethiopia Claims Commission, 19 December 2005, 457, at 465–​66, paras. 11-​12 (eecc Partial Award). For further developments on this distinction, see, among many, Olivier Corten The Law Against War (Hart, 2010), at 403; Christine Gray International Law and the Use of Force (Fourth Edition, Oxford, 2018) at 153 ff; Tom Ruys “Armed Attack” and Article 51 of the UN Charter (Cambridge, 2010) at 139 ff. 8 Draft Conclusions on Peremptory Norms (Jus Cogens) (above note 1), at 6 (Annex). 9 Fourth Tladi Report (above note 4), para. 60.

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alternatives, i.e., the prohibition of the use of force, prohibition of aggressive force and the law of the Charter on the prohibition of force.10 Despite Tladi’s assertion, the conflation of the terms “aggression” and “use of force” can hardly be considered as a simple “terminological matter”. It appears rather to be an effort to find a compromise between different positions on the scope of the peremptory character of the prohibition on the use of force. In section 2 of this chapter, we will address this question and establish that it is the entire prohibition on the use of force under the UN Charter that is peremptory. This debate may seem to an external observer as purely academic. If jus cogens is a vehicle that “does not often leave the garage” as Ian Brownlie has suggested11 or a Rolls Royce that her owner polishes and maintains lovingly but never drives, as Prosper Weil asserts,12 what is the added value, if any, of considering the entire law of the UN Charter on the prohibition on the use of force as peremptory instead of limiting the scope of jus cogens to the prohibition of aggression? By way of illustration, it is sufficient to point to the view adopted by Roberto Ago in his eighth report on State responsibility presented to the ilc in 1980: after emphasising the inadmissibility of the state of necessity for justifying an act of aggression, Ago left the question open as regards the use of force of a lesser degree.13 This has led some commentators to argue that the state of necessity may justify some limited uses of force, especially in the context of the fight against terrorism.14 So, establishing the jus cogens character of the entire prohibition on the use of force does seem to have concrete 10 11

Id at para. 62. Ian Brownlie “Voluntary versus Majority Rule Discussion” in Antonio Cassese and Joseph H. H. Weiler (eds.), Change and Stability in International Law-​Making (de Gruyter, 1988) at 110. 12 Prosper Weil “Le Droit International en Quête de son Identité” (1992) 237 Collected Courses of the Hague Academy of International Law 274. 13 Addendum to the Eighth Report of Special Rapporteur (Roberto Ago) on State Responsibility (A/​c n.4/​318/​Add.5-​8) (1999), at paras. 5, 58–​59 and 66; see also Commentary to Article 33 of the Articles on State Responsibility, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​35/​10) (1980), paras. 23-​26; Roberto Ago “Le Délit International’ ” (1939-​i i) 68 Collected Courses of the Hague Academy of International Law 540. 14 Théodore Christakis “Unilatéralisme et Multilatéralisme dans la Lutte Contre la Terreur: l’Exemple du Terrorisme Biologique et Chimique” in Karine Bannelier-​Christakis, Theodore Christakis and Olivier Corten (eds.) Le Droit International Face au Terrorisme (Pedone, 2002), at 176.

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consequences –​including, but not limited to, the possibility to invoke circumstances precluding wrongfulness. These consequences will be examined later on in section 3 of this chapter. 2

The Prohibition on the Use of Force under the UN Charter as a Jus Cogens Norm

The ilc discussions on the indicative list of jus cogens rules contained in the fourth report submitted by the Special Rapporteur testify to the divergence of views among the Commission’s members as to the peremptory nature of the prohibition on the use of (aggressive) force. Several members were critical of the conflation between aggression and use of force. Shinya Murase for example: was troubled by how the Special Rapporteur had described the prohibition of the use of force, the prohibition of aggressive force and the law of the Charter on the prohibition of force as possible alternatives to the prohibition of aggression (…). To his mind, there was a significant difference between “aggression” and “the use of force” or “the law of the Charter on the prohibition of force”.15 It was readily admitted that what was at stake behind these variations in terminology was the scope of the jus cogens prohibition. Concepción Escobar Hernandez called on the Special Rapporteur “to determine whether the peremptory character of the norm referred to the prohibition of the use of force in any form or only the prohibition of aggression”,16 while Marja Lehto framed the issue as follows: [a]‌nother substantive issue concerned the scope of jus cogens norms, namely, whether the law of the Charter of the United Nations on the use of force, as a whole, in other words, the prohibition of the use of force qualified by the right to self-​defence and the provisions on collective measures, was to be seen as having jus cogens status, or whether only the

15 16

See Murase (A/​c n.4/​s r.3459), at 12. Similar remarks on the terms used by the Rapporteur were made for example by Bogdan Aurescu (A/​c n.4/​s r.3462), at 3–​4 and Gilberto Saboia (A/​c n.4/​s r.3462), at 6. Escobar Hernandez (A/​c n.4/​s r.3462), at 16.

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prohibition of aggression had such status. It had been argued in the literature that only the core provision of Article 2 (4) of the Charter and the corresponding customary rule constituted a peremptory norm (…).17 A general uneasiness provoked by the subject can be sensed in the evasive comments of most of the Commission’s members, who did not formulate a definite choice between what can be termed as a broad definition of the relevant jus cogens norm –​covering all aspects of the prohibition on the use of force –​and a more restrictive one –​limiting the norm to the prohibition of aggression. While some members of the Commission seemed to be implicitly in favor of the former,18 others supported the latter view, although most of them for reasons of consistency with the terms used by the Commission in the commentary of its 2001 Articles on State Responsibility.19 Interestingly, some members of the Commission appeared to have doubts even about the jus cogens character of the prohibition of aggression. This was Murase’s view, who argued that “it was difficult to conclude definitively at the present juncture that the prohibition of aggression was a jus cogens norm” given that “there was no viable definition of aggression”,20 while Lehto pointed to arguments “that the prohibition of the use of force could not possibly be peremptory because of the exception of self-​defence”.21 Similarly, according to Georg Nolte, the report based the jus cogens character of the prohibition of aggression on indirect references in two decisions of the International Court of Justice, on General Assembly resolution 3314 (xxix), statements by some 20 States and four decisions of domestic courts. He wondered whether those sources could be taken to reflect recognition and acceptance by the international community as a whole of a specific, delineated norm and

17 18 19

20 21

Lehto (A/​c n.4/​s r.3459), at 20. Nguyen (A/​c n.4/​s r.3460), at 18; Cissé (A/​c n.4/​s r.3462), at 8. See along these lines, Lehto (A/​c n.4/​s r.3459), at 20; Aurescu (A/​c n.4/​s r.3462), at 4. Consistency with the wording previously used by the ilc was the reason put forth by the Drafting committee to justify maintaining the terms “prohibition of aggression”. See Report of the Drafting Committee Provisional summary record of the 3472nd meeting, (A/​ cn.4/​s r.3472) (2019), at 12: “Some members had noted that the prohibition of aggression could be reformulated more broadly as ‘the law of the Charter concerning the law of the use of force’. The Drafting Committee had kept the formulation ‘prohibition of aggression’, based on the Commission’s most recent relevant reference to that concept in the articles on State responsibility”. Murase (A/​c n.4/​s r.3459), at 13–​14. Lehto (A/​c n.4/​s r3459), at 20.

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whether, in fact, the answer to that question basically depended on the scope and content of the prohibition.22 Contrary to what has been suggested by some of the Commission’s members, we will establish that the entire prohibition on the use of force has reached the status of jus cogens (2.1) and that neither the existence of exceptions, nor the ambiguities relating to the scope of the prohibition are sufficient to prevent such a status from existing (2.2). 2.1 The Prohibition on the Use of Force as a Jus Cogens Norm The distinction between the prohibition of aggression and the prohibition of other less serious forms of use of force, while essential for determining the existence of self-​defence within the meaning of the Charter, does not have to dictate a difference in status as to the peremptory character of the rule. That status must be established from the definition in Article 53 of the 1969 Vienna Convention on the Law of Treaties (“vclt”), which evokes “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”.23 By applying these criteria to the use of force, we shall see that its peremptory character can be established (2.1.1) and that an examination of conventional practice does not shed doubts on this claim (2.1.2). 2.1.1

Acceptance and Recognition by the International Community of States as a Whole The rule prohibiting the use of force has generally been characterised as jus cogens by States, doctrine,24 and, case 22 23 24

Nolte (A/​c n.4/​s r.3461), at 5. Article 53 of the 1969 Vienna Convention on the Law of Treaties. See Gray (above note 7), at 32; Yoram Dinstein War, Aggression and Self-​Defence (Sixth Edition, Cambridge, 2017), at 110 ff; Belatchew Asrat Prohibition of Force Under the UN Charter: A Study of Art. 2(4) (Uppsala, Iustus Förlag, 1991), at 51–​52; Christian Henderson The Use of Force and International Law (Cambridge, 2018), at 24 ; John F. Murphy “Force and Arms” in Oscar Schachter and Christopher C. Joyner (eds.) United Nations Legal Order (Cambridge, 1995), at 256; Denys Simon and Linos-​Alexandre Sicilianos “La ‘contre-​ violence’ unilatérale: pratiques étatiques et droit international” (1986) 32 Annuaire Français de Droit International 53, at 72–​73; Mathias Forteau Droit de la Sécurité Collective et Droit de la Responsabilité Enternationale de l’Etat (Pedone, 2006), at 222; Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006), at 50; Antônio Augusto Cançado Trindade “The Primacy of International Law Over Force” in Marcelo Kohen (ed.) Promoting Justice, Human Rights and Conflict Resolution Through International

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law.25 Contrary to what some commentators claim, neither States, nor judges, nor mainstream doctrine seem to have limited the peremptory status to the prohibition of aggression alone. Since the decisive element for the existence of a peremptory norm is its acceptance and recognition as such by States, and in view of the doubts expressed within the ilc as to the existence of such recognition among States, we have decided to focus this section only on State practice.26 As a starting point, the works that led to the development of Article 53 of the 1969 and 1986 Vienna Conventions on the Law of Treaties prove that States have systematically associated the prohibition set out in Article 2(4) with the concept of peremptory norms. According to the ilc in its Draft Articles on the Law of Treaties, “the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international

25

26

Law. Liber Amicorum Lucius Caflisch (Martinus Nijhoff, 2007), at 1052; Ruys (above note 7), at 27–​28; Mélanie Dubuy La ‘Guerre Préventive’ et l’Evolution du Droit International Public (La documentation française, 2012), at 208; Eliav Lieblich International Law and Civil Wars: Intervention and Consent (Routledge, 2013), at 255; Albert Randelzhofer and Olivier Dörr “Article 2(4)” in Bruno Simma, Daniel-​Erasmus Khan, Georg Nolte, Amdreas Paulus (eds.) The Charter of the United Nations: A Commentary (Third Edition, Oxford, 2012), at 231; Marc Weller “Introduction: International Law and the Problem of War” in Marc Weller (ed.) The Oxford Handbook of the Use of Force in International Law (Oxford, 2015), at 17; Nigel Rodley “Humanitarian Intervention” in Marc Weller (ed.) The Oxford Handbook of the Use of Force in International Law (Oxford, 2015), at 794; Dire Tladi “The Use of Force in Self-​Defence against Non-​State Actors, Decline of Collective Security and the Rise of Unilateralism: Whither International Law” in Mary-​Ellen O’Connell, Christian Tams and Dire Tladi Self-​Defence against Non-​State Actors (Cambridge, 2019), at 25, 27; Mary Ellen O’Connell “Self-​Defence, Pernicious Doctrines, Peremptory Norms” in Mary Ellen O’Connell, Christian Tams and Dire Tladi Self-​Defence against Non-​State Actors (Cambridge University Press, 2019) at 228 ff. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, icj Reports 2010, p. 403, at para. 81; see also separate opinion of Judge Cançado Trindade, at paras. 213-​14. In the case concerning Oil platforms, the icj seems to rule out that a bilateral treaty can in any way depart from Charter Article 2(4), but it does not expressly assert as much. See Oil Platforms (Iran v. United States of America), icj Reports 2003, p. 161 at paras. 40-​42; see also, separate opinion of Judge Simma, at para. 6. See also Military and Paramilitary Activities (above note 7), at para. 190; Separate Opinion of President Nagendra Singh, 153; Separate Opinion of Judge Sette-​Camara, 199. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua, icj Reports 2015, p. 665, at para. 15; see also Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), icj Reports 2015, p. 665, at paras. 29 and 38. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2014, p. 136, at para. 7. For an analysis of case-​law and scholarly positions on the subject, see Corten (above note 7), at 207–​10.

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law having the character of jus cogens”.27 A reading of all of the works that led to the adoption of Articles 53 and 64 of the 1969 Convention confirms that if there is one principle that was admitted as jus cogens it was the one laid down by Charter Article 2(4). There is nothing to indicate that States limited the characterisation of peremptory norm to the prohibition on serious uses of force, such as acts of aggression. Quite the contrary, the wording used clearly shows that States referred to the prohibition on the threat or the use of force as a whole.28 At the Vienna Conference in 1968, the United States representative did cite “wars of aggression” as an example of a violation of a rule of jus cogens without further clarification.29 However, it cannot be deduced from this statement alone that other cases of use of force contrary to the Charter are not equally considered as violations of jus cogens. Other State representatives cited more generally the prohibition on the threat or use of force,30 or even the principles contained in Articles 1 and 2 of the United Nations Charter as

27 28

29

30

Paragraph 1 of the Commentary to Draft Article 50 of the Draft Articles on the Law of Treaties with Commentaries, Report of the International Law Commission, Eighteenth Session, General Assembly Official Records (A/​6309/​Rev.1) (1966), at 76. Brazil (A/​C.6/​s r.793), at para. 14, Czechoslovakia (A/​ C.6/​ s r.787), at para. 26; Czechoslovakia (A/​C.6/​s r.906), at para. 16, Cyprus (A/​C.6/​s r.910), at para. 48 and Cyprus (A/​C.6/​s r.980), at para. 62, Uruguay (A/​C.6/​s r.971), at para. 3, Thailand (A/​C.6/​ sr.976), at para. 16, Sweden (A/​C.6/​s r.980), at para. 15, Netherlands (A/​C.6/​s r.781), at para. 2; (A/​C.6/​s r.903), at para. 16, USA in Fifth Report of the Special Rapporteur (Sir Humphrey Waldock) on the Law of Treaties (A/​c n.4/​183 and Add 1-​4) (1965), Ukraine (A/​C.6/​s r.905), at para. 4, Austria (A/​C.6/​s r.911), at para. 7, Pakistan, ibid at para. 18, Australia (A/​C.6/​s r.912), at para. 23, usrr (A/​C.6/​s r.910), at para. 23, Bulgaria (A/​ C.6/​s r.788), at para. 9, Ghana (A/​C.6/​s r.791), at para. 35, Uruguay (A/​C.6/​s r.792), at para. 23. United Nations Conference on the Law of Treaties, 52nd meeting, 4 May 1968, First Session, General Assembly Official Records (A/​c onf.39/​C.1/​s r.52) (1968) at 295, para. 16; see also Ceylan (A/​c onf.39/​C.1/​s r.55), at 315, para. 38, Canada (A/​c onf.39/​C.1/​s r.56), at para. 22. Greece (A/​c onf.39/​C.1/​s r.52), at para. 18; Kenya (A/​c onf.39/​C.1/​s r.52), at para. 31 ; Nigeria, ibid at para. 48; Uruguay (A/​c onf.39/​C.1/​s r.53), at para. 48; United Kingdom (A/​ conf.39/​C.1/​s r.52), at para. 59; Cyprus, (A/​c onf.39/​C.1/​s r.52), at para. 69; Federal Republic of Germany (A/​c onf.39/​C.1/​s r.55), at para. 31; Ecuador (A/​c onf.39/​C.1/​s r.55), at para. 42; Tanzania (A/​c onf.39/​C.1/​s r.56), at para. 2; Ukraine (A/​c onf.39/​C.1/​s r.56), at para. 6; Philippines (A/​c onf.39/​C.1/​s r.56), at para. 20; Switzerland (A/​c onf.39/​C.1/​ sr.56), at para. 26 ; Norway (A/​c onf.39/​C.1/​s r.56), at para. 39; Malaysia (A/​c onf.39/​C.1/​ sr.56), at para. 51. See also Federal German Republic (A/​c onf.39/​C.1/​s r.2), at para. 26; Ecuador (A/​c onf.39/​C.1/​s r.2), at paras. 35 and 39; Italy, (A/​c onf.39/​C.1/​s r.2), at para. 39; Belarus (A/​c onf.39/​C.1/​s r.2), at para. 48; Nepal (A/​c onf.39/​C.1/​s r.2), at para. 70; Cuba (A/​c onf.39/​C.1/​s r.2), at para. 42.

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examples of jus cogens.31 These declarations reveal that no State claimed that the peremptory character of the rule was limited to aggression alone. This conclusion is confirmed by the debates focusing specifically on the rule prohibiting the use of force in the context of the works that led to the adoption of the major General Assembly resolutions bearing on this prohibition. During discussions of the Committee on Friendly Relations and of the Sixth Committee of the General Assembly that led to the formulation of Resolution 2625 (xxv) in 1970, many States explicitly affirmed that the prohibition on the use of force was a peremptory norm.32 Others evoked more general formulas such as the assimilation of the rule to an “absolute rule of international law binding on all States”.33 No State claimed that only the prohibition of aggression (and not that of the simple threat or again of limited use of force) was a peremptory rule. The same conclusion can be drawn from the discussions that preceded the adoption of the definition of aggression. While this notion was, quite logically, cited as an example of a violation of jus cogens,34 States have occasionally cited generally any violation of the rule prohibiting the threat or use of force.35 Analysis of the works that led to the adoption of Resolution 42/​ 22 is yet more instructive insofar as those works were conducted at a time when the very idea of jus cogens seemed to be shared by a large number of States, which may explain why they make pronouncements more often on this point. 31

32

33

34 35

ussr (A/​c onf.39/​C.1/​s r.2), at para. 3; Cuba (A/​c onf.39/​C.1/​s r.2), at para. 34; Lebanon (A/​c onf.39/​C.1/​s r.2), at para. 43; Sierra Leone (A/​ c onf.39/​C.1/​s r.53), at para. 9; Poland (A/​c onf.39/​C.1/​s r.53), at para. 35; Bulgaria (A/​c onf.39/​C.1/​s r.54), at para. 66; Czechoslovakia (A/​c onf.39/​C.1/​s r.55), at para. 25. Ukraine (A/​C.6/​s r.757), at para. 13; United Kingdom (A/​ C.6/​ s r.761), at para. 5; Czechoslovakia (A/​C.6/​s r.802), at para. 12; Hungary (A/​C.6/​s r.806), at para. 4; Mexico (A/​C.6/​s r.806), at para. 12, usa (A/​C.6/​s r.808), at para. 15, Bolivia (A/​C.6/​s r.814), at para. 6; Cyprus (A/​C.6/​s r.822), at para. 7; Cyprus (A/​C.6/​s r.892), at para. 19, Madagascar (A/​a c.119/​s r.9), at 18; Iran (A/​C.6/​s r.882), at para. 18; Ecuador (A/​C.6/​s r.1003), at para. 53; Thailand (A/​C.6/​s r.1093), at para. 1; Romania (A/​C.6/​s r.1093), at para. 7; Iraq (A/​ C.6/​s r.1163), at para 6; Report of the Special Committee on Principles of International Law concerning Friendly relations and co-​operation among States, General Assembly Official Records (A/​7326) (1968), at para. 109, citing Venezuela and Ethiopia (A/​C.6/​s r.1182), at para. 49. Yugoslavia (A/​a c.119/​s r.4); see also Yugoslavia (A/​C.6/​s r.753), at para. 31 (implicitly) and Yugoslavia (A/​a c.125/​s r.87) ; Mexico (A/​C.6/​s r.886), at para. 36 ; Mexico (A/​a c.119/​ sr.9) ; Mali (A/​C.6/​s r.882), at para. 25; see also Mali (A/​C.6/​s r.997), at para. 1 (implicitly); Hungary (A/​C.6/​s r.999), at para. 6 (implicitly). See Peru (A/​C.6/​s r.1349), at para. 45. Ecuador (A/​a c.134/​s r.10); see also Ecuador (A/​C.6/​s r.1078), at para. 36; Ecuador (A/​ ac.134/​s r.58); Ecuador (A/​C.6/​s r.1209), at para. 36; Ecuador (A/​a c.134/​s r.35); drc (A/​ ac.134/​s r.35); Argentina (A/​C.6/​s r.888), at para. 37.

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In the matter at hand, back in 1979, the Special Committee reports mention an agreement on the characterisation of Article 2(4) of the Charter as a rule of jus cogens.36 Finally, in the draft Declaration proposed by the Special Committee that was subsequently adopted by the General Assembly as Resolution 42/​22, point I states that: 2. The principle of refraining from the threat or use of force in international relations is universal in character and is binding regardless of each State’s political, economic, social or cultural system or relations of alliance. 3. No consideration of whatever nature may be invoked to warrant resorting to the threat or use of force in violation of the Charter of the United Nations.37 No State objected nor furnished other clarifications on this point, whether in the Sixth Committee or during the plenary session after the resolution was passed without a vote.38 In view of the circumstances in which the clauses were passed, there is little doubt that they can be construed as supporting the jus cogens character of the rule in Article 2(4) –​an interpretation covering the rule as a whole, and not just the prohibition of aggression. 36

37 38

See the following Reports of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations, General Assembly Official Records (Supplement No. 41 A/​34/​41(supp)) (1979), at paras. 31, 57, 72 and 104; Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​use of Force in International Relations, General Assembly Official Records, (Supplement No. 41 A/​ 38/​41(supp)), at paras 20, 46 and 54; Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​use of Force in International Relations, General Assembly Official Records (A/​39/​41(supp)) (1983), at paras. 27, 44, and 100; Implementation of the Declaration on the Granting of Independence to Colonial Countries and People, General Assembly Official Records (A/​r es/​41/​41(supp)) (1987), at paras. 82, 84, and 89; Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​use of Force in International Relations, General Assembly Official Records (Supplement No. 41 A/​42/​ 41(supp)) (1986), at para. 26. The Committee was composed by representatives of the following states: the Federal Republic of Germany, Belgium, Benin, Bulgaria, Cyprus, Cuba, Egypt, Ecuador, Spain, usa, Finland, France, Greece, Guinea, Hungary, India, Iraq, Italy, Japan, Morocco, Mexico, Mongolia, Nepal, Nicaragua, Uganda, Panama, Peru, Poland, Romania, United Kingdom, Senegal, Somalia, Togo, Turkey and usrr. Implementation of the Declaration on the Granting of Independence to Colonial Countries and People (above note 36), at para. 56. Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, General Assembly Official Records (A/​r es 42/​22) (1987).

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639

Were there still any doubt left, it would suffice to refer to the declarations made individually by States to appreciate the scale of the opinio juris in this respect. In the discussions preceding the adoption of Resolution 42/​22, all of the States listed below characterised the prohibition on the threat or use of force as a whole as a peremptory norm or jus cogens. They are listed by chronological order of declaration: ussr,39 gdr,40 USA,41 Ukraine,42 Italy,43 Chile,44 Cuba,45 Romania,46 Brazil,47 Syria,48 Spain,49 Senegal,50 Hungary,51 39

40 41 42 43 44 45

46

47 48 49

50 51

ussr (A/​C.6/​32/​s r.64), at para. 3; Implementation of the Declaration on the Granting of Independence to Colonial Countries and People (above note 36), at para. 113; (A/​ C.6/​31/​s r.50), at para. 4. See also Conclusion of a World Treaty on the Non-​Use of Force in International Relations, General Assembly Official Records (A/​32/​94) (1977). (A/​C.6/​31/​s r.50), para. 57. Ibid at para. 60; (A/​C.6/​41/​s r.14), at para. 39; See also Marian L. Nash “Contemporary Practice of the United States” (1980) 74 American Journal of International Law 419. Ukraine (A/​C.6/​31/​s r.51), at para. 4; (A/​C.6/​38/​s r.16), at para. 72. Italy (A/​C.6/​31/​s r.51), at para. 14; (A/​a c.6/​36/​s r.13), at para. 31. Ibid 23, paras. 24 and 29; Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations, General Assembly Official Records, (Supplement No. 41 A/​37/​41(supp)) (1982), at para. 165. Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 44), at para. 216. See also (A/​C.6/​32/​s r.64), at para. 16; (A/​C.6/​38/​s r.17), at paras. 27 and 32; (A/​C.6/​34/​s r.22), at para. 57; (A/​C.6/​31/​ sr.51), at para. 39. Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 44), at para. 141. See also (A/​C.6/​33/​ sr.59), at para. 26; (A/​C.6/​31/​s r.52), at para. 2; (A/​C.6/​34/​s r.18), at para. 56; Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations, General Assembly Official Records (Supplement No. 41 A/​35/​ 41(supp)) (1980), at para. 56; Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations, General Assembly Official Records (Supplement No. 41 (A/​36/​41(supp)), at para. 57; (A/​C.6/​36/​s r.12), at para. 15; (A/​ C.6/​39/​s r.15), at para. 5; (A/​C.6/​41/​s r.11), at para. 16. Brazil (A/​C.6/​31/​s r.53), at para. 2; (A/​36/​415), Part ii: Observations received from governments, for Brazil’s communication, see page 4, at para. 2. Syria (A/​C.6/​31/​s r.54), at para. 7. Spain (A/​C.6/​35/​s r.29), at para. 26; (A/​C.6/​31/​sr.54), at para. 17; 1980 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at para. 39; 1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at paras. 25 and 27; 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 44), at paras. 187 and 189. Hungary (A/​C.6/​38/​s r.15), at para. 56; Conclusion of a World Treaty on the Non-​use of Force in International Relations, General Assembly Official Records (A/​32/​181) (1977). 1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 46), part ii: General debate, at para. 37.

640 

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Bulgaria,52 Greece,53 Belarus,54 Ethiopia,55 Cyprus,56 Egypt,57 Iran,58 Mongolia,59 Argentina,60 Bangladesh,61 Ecuador,62 Tunisia,63 Pakistan,64 Honduras,65 Togo,66 Somalia,67 Mauritania,68 Nigeria,69 Burundi,70 Japan,71 52

1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 46), at para 70; A/​C.6/​32/​s r.65, at para. 24. 53 A/​C.6/​34/​s r.17, at para. 1; see also A/​C.6/​35/​s r.31, at para. 11-​12; A/​C.6/​38/​s r.14, at para. 1; A/​C.6/​39/​s r.18, at para. 7; A/​C.6/​40/​s r.11, at para. 1; A/​C.6/​41/​s r.13, at para. 1; A/​C.6/​32/​ sr.65, at para. 42; A/​C.6/​35/​s r.31, at para. 11; A/​C.6/​36/​s r.14, at para. 18; A/​C.6/​37/​s r.34, at para. 58. 54 A/​C.6/​32/​s r.67, at para. 25. 55 A/​ a c.6/​36/​s r.10, at para. 62; A/​C.6/​33/​s r.53, at para. 43; A/​a c.6/​37/​s r.36, at para. 44; A/​ C.6/​38/​s r.15, at para. 32. 56 A/​C.6/​33/​s r.56, at para. 11; see also A/​C.6/​36/​s r.14, at para. 57; A/​C.6/​38/​s r.14, at paras. 46 and 48 ; A/​C.6/​39/​s r.17, at para. 33; A/​C.6/​40/​s r.9, at para. 56; A/​C.6/​41/​s r.11, at para. 1; 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 44), at paras. 236 and 238. 57 1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 46), at para 37; Report of the Secretary General, General Assembly Official Records (A/​37/​375) (1982), at para. 6; A/​C.6/​33/​s r.57, at para. 23; A/​C.6/​37/​s r.35, at para. 17; A/​C.6/​39/​s r.16, at para. 2. 58 A/​C.6/​34/​s r.21, at para. 59; A/​C.6/​33/​s r.59, at para. 14. 59 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 44), at para. 61; A/​C.6/​34/​s r.20, at para. 8; 1980 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at para 28; 1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at para 45; A/​C.6/​40/​s r.9 (above note 56), at 9 October 1985, para 37. 60 A/​C.6/​34/​s r.21, 18 October 1979, at para 4; 1980 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at para 26. 61 A/​C.6/​41/​s r.11, 8 October 1986, at para 35; A/​a c.6/​36/​s r.13, 6 October 1981, at para 21; A/​ C.6/​34/​s r.21, 18 October 1979, at para 13. 62 A/​C.6/​34/​s r.21, at para. 49. 63 Id., at para. 71; A/​C.6/​40/​s r.10, at para. 17. 64 A/​C.6/​34/​s r.22, at para. 8; A/​C.6/​40/​s r.9, at para. 3. 65 A/​C.6/​34/​s r.23, at para. 17. 66 Id., at para. 38. 67 A/​C.6/​35/​s r.27, at para. 20; A/​C.6/​36/​s r.14, at para. 35; A/​a c.6/​37/​s r.36, at para. 53. 68 A/​C.6/​35/​s r.31, 28 October 1980, para 1. 69 Id at para 32; A/​a c.6/​36/​s r.10, 2 October 1981, at para 17; A/​C.6/​37/​s r.40, 9 November 1982, at para 82. 70 A/​C.6/​35/​s r.31, 28 October 1980, para 70. 71 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 44), at para. 227; A/​C.6/​35/​s r.31, at para. 78; A/​C.6/​40/​s r.11, at para. 13; A/​C.6/​41/​s r.13, at para. 38.

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Nicaragua,72 Zaire,73 Singapore,74 Poland,75 Yugoslavia,76 Iraq,77 United Kingdom,78 India,79 Suriname,80 Czechoslovakia,81 Mexico,82 Cambodia,83 Australia,84 Algeria,85 Venezuela,86 Congo,87 Morocco,88 Trinidad and Tobago,89 Jordan,90 Guinea Bissau,91 frg,92 Canada,93 Nepal,94 Libya,95 Sudan,96 72 73 74 75

A/​C.6/​35/​s r.32, at para. 10. Id., at para. 38; A/​C.6/​37/​s r.39, at para. 45. A/​C.6/​35/​s r.32, at paras. 40 and 43. 1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 46), at paras. 128 and 130; 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 44), at paras. 362 and 364; A/​C.6/​38/​s r.13, at para. 6; A/​C.6/​39/​s r.18, at para. 42. 76 A/​C.6/​37/​s r.36, at para. 49; 1981 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at para. 191; A/​C.6/​38/​s r.12, at para. 25; A/​C.6/​39/​s r.18, at para. 14. 77 A/​ a c.6/​36/​s r.7, at para. 7; 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 44), at para. 234. 78 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 44), at para 182. 79 A/​C.6/​36/​s r.15, at para. 22; 1980 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 46), at para. 102; A/​C.6/​37/​s r.35, at para. 23; A/​C.6/​41/​s r.12, at para. 9. 80 A/​C.6/​36/​s r.16, at para. 5. 81 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​Use of Force in International Relations (above note 44), at para. 43; A/​C.6/​38/​s r.15, at para. 45. 82 1982 Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-​ Use of Force in International Relations (above note 44), at para. 146; A/​C.6/​38/​s r.14, at para. 51; A/​C.6/​39/​s r.15, at para 55. 83 A/​C.6/​37/​s r.32, at para. 24. 84 A/​C.6/​37/​s r.33, at para. 3; A/​C.6/​38/​s r.15, at para. 23; A/​C.6/​40/​s r.10, at para. 45; A/​C.6/​ 41/​s r.14, at para. 54. 85 A/​C.6/​37/​s r.34, at para. 32. 86 Id., at para. 41. 87 A/​C.6/​37/​s r.35, at para. 1. 88 Id., at para. 32; A/​C.6/​38/​s r.15, at para. 36. 89 A/​C.6/​37/​s r.38, at para. 58; A/​C.6/​40/​s r.11, at para. 57. 90 A/​C.6/​37/​s r.39, at para. 71. 91 Id., at para. 82. 92 A/​C.6/​38/​s r.14, at para. 13; A/​C.6/​39/​s r.18, at paras. 54 and 60; A/​C.6/​40/​s r.10, at para. 35; A/​C.6/​41/​s r.14, at para. 33. 93 A/​C.6/​38/​s r.15, at para. 9. 94 A/​C.6/​38/​s r.16, at para. 41. 95 A/​C.6/​38/​s r.17, at para. 36. 96 A/​C.6/​38/​s r.18, at para. 2.

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Dominican Republic,97 Sri Lanka,98 and Vietnam.99 This list can be completed with the States that have clearly recognised the peremptory character of the prohibition on the use of force in statements made at the Sixth Committee during the discussions on the indicative list of peremptory norms proposed by the Special Rapporteur: Austria,100 Slovakia,101 Czechia,102 Brazil,103 Croatia,104 Mexico,105 Russian Federation,106 Vietnam,107 Azerbaijan.108 While it may seem fastidious, this list clearly shows that the delegations making the relevant pronouncements belonged to all the groups of States, thus proving the scale of the agreement within the international community of States as a whole in respect of the peremptory character of the prohibition to use force. It should be mentioned that, in all the discussions mentioned above, these repeated statements remained, to the best of our knowledge, uncontested: no State explicitly denied the jus cogens character of the prohibition set down in article 2(4) of the UN Charter claiming that it is only the prohibition of aggression that enjoys this status. It can be noted, lastly, that the same conclusion arises from an examination of the official positions issued by States before international courts or tribunals in various cases including aspects of the jus contra bellum: the decision on Military and Paramilitary Activities (Nicaragua v USA),109 the opinions on Legality of the Threat or Use of Nuclear Weapons,110 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial

97 98 99 100 101 102 103 104 105 106 107 108 109 110

Id, at para. 66. A/​C.6/​40/​s r.11, at para. 9. A/​C.6/​41/​s r.10, at para. 26. A/​C.6/​74/​s r.23, at para. 64. Id., at para. 86. Id., at para. 112. A/​C.6/​74/​s r.24, at para. 92. A/​C.6/​74/​s r.25, at para. 56. Id,. at para. 11. Id., at para. 51. A/​C.6/​74/​s r.26, at para. 53. A/​C.6/​74/​s r.31, at para. 20. Military and Paramilitary Activities (above note 7), para. 190. See Malaysia (Note Verbale of 19 June 1995, International Court of Justice, at 4), India (Letter dated 20 June 1995 from the Ambassador of India, together with written Statement of the Government of India, International Court of Justice, at 1), Indonesia (cr 95/​25, 3 November 1995, International Court of Justice, at 19, para. 13), New Zealand (cr 95/​28, 9 November 1995, International Court of Justice, at 42), Philippines (cr 95/​28, 9 November 1995, International Court of Justice, at 56 and 60); Against: Qatar (cr 95/​29, 10 November 1995, International Court of Justice, at 29).

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Guinea intervening),111 the decision on Oil Platforms (Iran v USA),112 the decision on Armed Activities (drc v Uganda),113 the advisory opinion on Kosovo’s declaration of independence114 and the Guyana/​Suriname arbitral award.115 Several States in the context of these cases have characterised the rule set out in Charter Article 2(4) as peremptory. In our view, this survey puts definitively to rest the claims that there is insufficient proof of the acceptance and recognition of the prohibition to resort to the threat or use of force under article 2(4) of the UN Charter as peremptory. This characterisation has not been called into question by State practice, as shall now be seen. 2.1.2 The Absence of Any Challenge in Treaty-​Based Practice A first point should be specified from the outset. To our knowledge, there is no treaty by which States have overtly claimed to derogate from Charter Article 2(4). This is a significant omission. One may well retort that, assuming they wished to escape from the prohibition on the use of force in a particular instance, for example by contemplating attacking another State, it is hardly likely that States would decide to conclude a treaty expressing their intentions. But this is precisely the point: such refusal to assume emancipation from the Charter regime governing the use of force is the best evidence that States as a whole have the conviction that the regime is peremptory. So, while one can imagine treaties derogating, say, from the general rules on immunities, it does seem difficult to imagine a treaty-​based derogation from the prohibition on the use of force as it is laid down in the UN Charter. The peremptory status of Article 2(4) is further confirmed by various specific treaties providing for the use of force, mainly in relation to collective security. Indeed, the possibility to resort to force provided for in such treaties is

1 11 Reply of Cameroon (4 April 2000, International Court of Justice, at 469, at para 10.24). 112 Memorial of the Government Submitted by the Islamic Republic of Iran, 8 June 1993, International Court of Justice, 94, at paras. 4.05–​4.06; see also Counter-​Memorial and Counter-​Claim Submitted by the U.S.A., 23 June 1997, International Court of Justice, at 154–​ 55, at paras. 4.58-​4.61. 113 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Counter-​claims, Memorial of the drc July 2000, at para. 3.08 and paras. 3.12-​3.13. 114 See written communications by Serbia, 17 April 2009, International Court of Justice, 120, at para 496; Russia, 16 April 2009, International Court of Justice, 19, at para. 78; Ireland, 17 April 2009, International Court of Justice, p. 7, at para 22. 115 Republic of Guyana v. Republic of Surname, Memorial of the Republic of Guyana, vol i, Arbitration Under Annex vii of the United Nations Convention on the Law of the Sea (2005), 126, at para. 10.4 and 128, para. 10.10.

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always coupled with provisions that express States’ concern to comply with the general regime of the Charter. The following examples are illustrative of this point: –​ This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.116 –​ This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of any of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security.117 –​ None of the provisions of this Charter shall be construed as impairing the rights and obligations of the Member States under the Charter of the United Nations.118 –​ This Pact shall not derogate from, and shall not be interpreted as derogating in any way from the obligations of Member States contained in the United Nations Charter and the Constitutive Act, including the Protocol, and from the primary responsibility of the United Nations Security Council for the maintenance of international peace and security.119 Comparable provisions are found also in the law of the sea,120 space law,121 and more specialised treaties, especially relating to terrorism.122 Of course, here again, the mere presence of a clause of this type is not enough to characterise the prohibition on the use of force laid down in the Charter as jus cogens.

116 Article 7 of the 1949 North Atlantic Treaty; see also the Preamble, commented on by Marcel Sibert “L’O.T.A.N. : Origines, Mécanisme, Nature” (1956) 60 Revue Générale de Droit International Public 180. See also, Article 1 of the 1955 Warsaw Pact. 117 Article vi of the 1954 Southeast Asia Collective Defense Treaty (France, New Zealand, Pakistan, Philippines, Thailand, United Kingdom, usa). See also the 2007 asean Charter. See in this regard, Daniel Seah “The asean Charter” (2009) 58 International and Comparative Law Quarterly 197, at 199–​200. 118 Article 131 of the 1948 Charter of the Organization of American States. 119 Article 17 of the 2005 African Union Non-​Aggression and Common Defence Pact. 120 Article 301 of the 1982 United Nations Convention on the Law of the Sea. 121 Article iii of the 1966 Treaty on Principles Governing the Activities of States in the Exploration and the Use of Outer Space, including the Moon and Other Celestial Bodies (text annexed to General Assembly Resolution 2222 (xxi) of 19 December 1966). 122 Article 19(1) of the 1997 International Convention for the Suppression of Terrorist Bombings; Article 14 of the 1979 International Convention against the Taking of Hostages.

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However, it must be conceded that the frequency of such provisions is evidence of States’ feeling that they cannot derogate from the prohibition. Turning to treaties dealing more specifically with resort to force, the vast majority provide for the exercise of a “right of hot pursuit” in the context of police cooperation, for the simple stationing or transit of foreign troops, or for the conduct of a military operation within the territory of a State following an ad hoc consent by the government. All these regimes are not in contradiction with the prohibition on the use of force.123 What would contradict Article 2(4) of the UN Charter is a treaty recognising a genuine, unilateral right of military intervention to a State in the territory of another without the ad hoc consent of the territorial State. Such treaties were to be found in the nineteenth century but seem to have progressively disappeared at the same time as the rule stated in Charter Article 2(4) was emerging.124 At any rate, we know of no treaty of this type concluded after 1945.125 This last point is further confirmed by the State practice relating to the application of some treaties that may, at first sight, appear problematic with respect to the prohibition on the use of force. A first example is the 1960 Treaty of Guarantee concluded about the status of Cyprus.126 In criticising Turkey’s 1974 military intervention, the Republic of Cyprus specified that even if such resort to force were to be considered as permissible under the Treaty of Guarantee –​ which it was not127 –​it would have to be considered as devoid of legal effect because of its incompatibility with the UN Charter regime.128 Greece put forward a similar position, arguing that the Treaty of Guarantee could not contravene the jus cogens rule prohibiting the use of force.129 As for Turkey, it did not claim that the Treaty of Guarantee could constitute a legal basis for circumventing the regime set up by the Charter. While its action might, it argued, indeed be grounded on the provisions of that treaty,130 the treaty 1 23 Corten (above note 7), at 255–​56. 124 See examples in Natalino Ronzitti “Use of Force, Jus Cogens and State Consent” in Antonio Cassese (ed.) The Current Legal Regulation of the Use of Force (Martinus Nijhoff, 1986), at 157–​59; Ian Brownlie International Law and the Use of Force by States (Clarendon, 1963), at 318–​20. 125 Daniel Vignes “La Place des Pactes de Défense dans la Société Internationale Actuelle” (1959) 5 Annuaire Français de Droit International 37, at 64–​65. 126 1960 Treaty of Guarantee. 127 A/​C.6/​s r.1480, at para. 81. 128 A/​C.6/​s r.1482, at paras 67-​68; A/​C.6/​s r.892, at para. 56. See also A/​C.6/​s r.1482, at paras. 67-​68; A/​C.6/​33/​s r.56, at para. 17. 129 A/​C.6/​42/​s r.21, at paras. 102 and 103; A/​C.6/​sr.1482, at para. 83; A/​C.6/​39/​sr.19, at para. 125. 130 See Letter dated 13 March 1964 from the Permanent Representative of Turkey to the Secretary-​General, S/​5596, 13 March 1964; Letter dated 18 August 1964 from the Permanent

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in no manner contravened the relevant articles of the UN Charter expressly providing for the right of self-​defence.131 Turkey’s representative considered it had merely riposted to a prior armed attack by Greece,132 its action being taken in self-​defence under Charter Article 51 and at the same time under the rights conferred by the Treaty of Guarantee.133 Hence, neither of the parties involved claimed that they could derogate from the UN Charter. Greece and the Republic of Cyprus considered that the Treaty of Guarantee had to be interpreted in accordance with the Charter and, therefore, that it could not provide a legal basis for a right of military intervention.134 Turkey replied that it had acted in self-​defence and that, in that context, it too could invoke the Treaty of Guarantee allegedly violated beforehand by Greece –​an argument that did not really convince third States.135 Therefore, the 1960 Treaty of Guarantee cannot be considered as establishing a derogation from the UN Charter. A second example relates to the position adopted by member States of the African Union and ecowas. Article 4(h) of the Constitutive Act of the African Union provides for “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes; genocide and crimes against humanity”.136 Similarly, on 10 December 1999, ecowas Member States adopted a Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-​keeping Representative of Turkey to the Secretary-​General, S/​5904, 18 August 1964; Exchange of messages dated 21 and 22 July 1974 between the Secretary-​General and the Governments of Greece and Turkey, S/​11356, 22 July 1974; Christiane Alibert Du droit de se Faire Justice dans la Société Internationale Depuis 1945 (Librairie Générale de Droit et de Jurisprudence, 1983), at 292–​95. Compare Letter from the Representative of Turkey to the Secretary-​ General, General Assembly Official Records (A/​69/​814) (2015)/​(S/​2015/​169). 131 A/​C.6/​39/​s r.19, at paras. 73, 111, and 131; A/​C.6/​s r.1480, at paras. 76-​78; See also S/​p v.1780 and S/​p v.1781. 132 A/​C.6/​42/​s r.21, at para. 100; see also A/​C.6/​34/​s r.22, at para. 72. 133 A/​C.6/​40/​s r.12, at para. 47. See also A/​a c.91/​s r.19; A/​C.6/​s r.1482, at paras. 70-​74; A/​C.6/​ 39/​s r.19, at para. 131; A/​C.6/​42/​s r.21, at para. 100. 134 A/​C.6/​40/​s r.12, 10 October 1985, at para 52; A/​C.6/​42/​s r.21, 13 October 1987, at para 105. 135 See, UN Security Council Resolution 360 (1974); UN Security Council Resolution 367 (1975); unga Resolution 3212(xix), General Assembly Official Records (A/​r es/​3212(xxix)) (1974); see also “Pratique Française du droit international” (1974) 20 Annuaire Français de Droit International 1058, and Vincent Coussirat-​Coustère “La crise chypriote de l’été 1974 et les Nations Unies” (1974) 20 Annuaire Français de Droit International 437, at 441–​42. 1 36 2000 Constitutive Act of the African Union. On this article see generally Dan Kuwali and Frans Viljoen (eds.), Africa and the Responsibility to Protect. Article 4(h) of the African Union Constitutive Act (Routledge, 2014). See also in this volume Tiyanjana Maluwa “African State Practice and the Formation of Peremptory Norms of General International Law” (Chapter 10).

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and Security.137 This instrument set up a Mediation and Security Council with the competence to intervene in the territory of Member States not only in the event of armed attack but also, as its Article 25 stipulates, “[i]‌n event of serious and massive violation of human rights and the rule of law […] of an overthrow or attempted overthrow of a democratically elected government” or “[a]ny other situation as may be decided by the Mediation and Security Council”.138 None of these excerpts mentions the need for prior authorisation from the Security Council. A priori, they could therefore be construed as challenging the UN Charter regime relating to the exclusive power of the UN Security Council to authorise the use of force.139 This could be interpreted as a derogation from the general regime on the non-​use of force, challenging its peremptory character. However, in reality, the African States did not in fact challenge the primacy of the UN Charter with respect to resort to force. Firstly, Article 4(h) of the Constitutive Act of the au bestows on the organization a right of intervention within its Member States,140 a right which its forerunner the oau did not have in its articles.141 The primary effect of this provision is therefore to attribute expressly to the au a legally required competence in the context of the law 137 Economic Community of West African States “Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-​keeping, and Security” (2000) 5 Journal of Conflict and Security Law 231. 138 Ibid., see also article 10. 139 Jeremy Levitt “The Peace and Security Council of the African Union, the Use of Force and the United Nations Security Council: The Case of the Sudan” in Niels M. Blokker and Nico J. Schrijver (eds.) The Security Council and the Use of Force. Theory and Reality (Brill, 2005), at 229–​36. See also Konstantinos D Magliveras and Gino J Naldi “The African Union –​ A New Dawn for Africa?” (2002) 51 International and Comparative Law Quarterly 415, at 418; Ademola Abass “The New Collective Security Mechanism of ecowas: Innovations and Problems” (2000) 5 Journal of Conflict and Security Law 211; David Wippman “Pro-​ Democratic Intervention” in Weller (above note 24), at 812–​13. 140 Corinne A. Packer and Donald Rukare “The New African Union and Its Constitutive Act” (2002) 96 American Journal of International Law 365, at 372–​73. 141 Article iii of the oau Charter; Ademola Abass and Mashood A. Baderin “Towards Effective Collective Security and Human Rights Protection in Africa: an Assessment of the Constitutive Act of the New African Union” (2002) 49 Netherlands International Law Review 1, at 8–​13 and 16; see also Taslim O. Elias “The Charter of the Organization of African Unity” (1965) 59 American Journal of International Law 243, at 247–​48; Jose Antonio de Yturriaga “L’Organisation de l’unité Africaine et les Nations Unies” (1965) 69 Revue Générale de Droit International Public 370, at 375–​79; Levitt (above note 139), at 217; Ben Kioko “The Right of Intervention Under the African Union’s Constitutive Act: From Non-​Interference to Non-​Intervention” (2003) 85 International Review of the Red Cross 807, at 812–​813; Gino J. Naldi “Peace-​Keeping Attempts by the Organization of African Unity” (1985) 34 International and Comparative Law Quarterly 593.

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of international organizations.142 Without such competence, the Union could not as such act militarily under its own legal order even if so authorised by the Security Council. The legal effects of Article 4(h) are therefore above all internal to the organization and do not tend to modify general international law. Similar reasoning may be held on the subject of ecowas, which has set up a Mediation and Security Council with extended competences within the organization.143 Secondly, there is ample evidence that African States continue to regard the regime imposed by the Charter as the point of reference for lawful resort to force. Article 4 of the au Constitutive Act contains only general principles for the organization’s operation, which have then been specified through various instruments. Among these, the Protocol relating to the establishment of the Peace and Security Council of the African Union is of particular interest since it institutes the organ tasked with implementing Article 4(h) of the Constitutive Act of the Union.144 This protocol explicitly provides that the Peace and Security Council is guided by the principles set out in the UN Charter.145 Along the same lines, the Executive Council of the African Union, in the common position adopted in 2005 on the proposed reform of the United Nations (“The Ezulwini consensus”) affirmed that “[t]‌he African Union agrees […] that the intervention of Regional Organizations should be with the approval of the Security Council; although in certain situations, such approval could be granted ‘after the fact’ in circumstances requiring urgent action”.146 These texts show that the African Union does not intend to derogate from or duck out of the requirements of the UN Charter.147 This conclusion is confirmed by the African Union Non-​Aggression and Common Defence Pact (adopted in January 2005 and not yet in force), whose text expressly provides for compliance with the Charter and insists on the primary responsibility of the Security Council regarding the maintenance of international peace and security.148 As 142 Robert Kolb “Article 53” in Olivier Corten and Pierre Klein (eds.) The Vienna Conventions on the Law of Treaties: A Commentary (Oxford University Press, 2011), at 1422. 143 Tarcisio Gazzini The Changing Rules on the Use of Force in International Law (First Edition, Manchester University Press, 2005), at 112–​13. 144 Article 7 paragraph 1(e) of the 2002 Protocol Relating to the Establishment of the Peace and Security Council of the African Union. See also Article 13 paras. 1 and 3. 145 Ibid., Article 4. See also Article 17, paras. 1, 2 and Article 13 para. 5. 146 African Union, Executive Council, The common African position on the proposed reform of the United Nations: “The Ezelwini consensus”, (Ext/​e x.cl/​2(vii)), at 6. 147 Philippe Sands and Pierre Klein Bowett’s Law of International Institutions (Sixth Edition, Sweet & Maxwell, 2009), at 250–​51. 148 Article 17(a) of the 2005 African Union Non-​Aggression and Common Defence Pact. See also articles 1 and 3 of the 1945 Charter of the United Nations.

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for the ecowas Protocol, it contains several items that argue against the possibility of acting beyond the scope of the UN Charter. Thus, the members of this organization reiterate their commitment to the Charter (Article 2 (1)) and their intention to cooperate with the UN (Article 41). Thirdly, it should be observed that no right of intervention by the au or ecowas, without Security Council authorisation, has ever been claimed in the General Assembly, including at the time of discussions on “responsibility to protect”. Explicit insistence on compliance with Chapter viii and with Security Council authority can be found in a joint communiqué adopted by the Security Council and the African Union Peace and Security Council in 2007.149 When making individual statements, African States frequently recall the necessity of remaining within the framework of the UN Charter. By way of example, we can refer the reader to statements by Angola,150 Guinea,151 Benin,152 Algeria,153 Ghana,154 Uganda,155 Morocco,156 Ethiopia,157 Congo,158 Egypt,159 Sudan,160 Rwanda,161 Burkina Faso,162 Sierra Leone,163 Swaziland,164 Nigeria,165 Zambia,166 Senegal,167 Libya,168 Gabon,169 and South Africa.170 Finally, in any event, these texts have never, so far, been construed as conferring on the African Union or ecowas a right of intervention that might be 149 Report of the Security Council mission to Addis Ababa, Khartoum, Accra, Abidjan and Kinshasa, 14 to 21 June 2007, UN Security Council (S/​2007/​421) (2007), at annex ii, paras. 1 and 2. 150 S/​ p v.4739, at 6. 151 Id., at 39–​40. 152 S/​ p v.5007, at 11; S/​p v.5282, at 6; S/​p v.5649 (Resumption 1), at 17; S/​p v.5776 (Resumption 1), 2007, at 23. 153 S/​ p v.5007, at 25; S/​p v.5282, at 14. 154 S/​ p v.5776, at 20. 155 S/​ p v.5649, at 5; S/​p v.5868, at 25–​26; S/​p v.6092, at 13; S/​p v.6257, at 24. 156 S/​ p v.6702 (Resumption 1), at 6. 157 S/​ p v.5868, at 24; S/​p v.6702, Resumption 1, at 6–​7. 158 S/​ p v.5649, at 9. 159 Id., at 29; S/​p v.6092 (Resumption 1), at 7. 160 S/​ p v.5649, at 31. 161 Id., (Resumption 1), at 18. 162 S/​ p v.5868, at 17; S/​p v.6092, at 15. 163 S/​ p v.5868 (Resumption 1), at 6. 164 Ibid. 165 Ibid., at 8; S/​p v.6092 (Resumption 1), at 16; S/​p v.6206, at 34. 166 S/​ p v.5868 (Resumption 1), at 9. 167 Id., at 9–​10. 168 S/​ p v.6206, at 17. 169 S/​ p v.6409, at 21. 170 Id., at 31.

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exercised outside the framework of the UN Charter. In practice, precedents such as those of Darfur in 2005,171 Libya or Côte d’Ivoire in 2011, or Mali in 2013, do not indicate any possible emancipation of the African Union with respect to the United Nations.172 The crisis in Burundi in 2015–​2016 once again confirmed this tendency. Further to the quelling of demonstrations against the election of Pierre Nkurunziza for a third term of office as President of the Republic, the au Peace and Security Council invoked Article 4(h) and decided to send in an “African Prevention and Protection Mission in Burundi” (Mission Africaine de Prévention et de Protection au Burundi, maprobu).173 However, no intervention occurred. First, in the same communiqué, the au Council “request[ed] the UN Security Council to adopt, under chapter vii of the UN Charter, a resolution in support of the present communiqué”.174 Then, the Security Council examined the situation and refused to adopt a resolution authorizing such an intervention, insisting on mediation efforts instead.175 A few weeks later, the au Peace and Security Council purely and simply waived any deployment of maprobu, taking official note of the refusal of the President of Burundi176 and reiterating the need to respect the country’s territorial integrity and political independence.177 In this way, what was going to be the first-​ever precedent where the au would adopt coercive measures against a State by virtue of Article 4(h) without UN Security Council authorisation did not materialize. Rather, the au 171 Levitt (above note 139), at 213–​51; Marten Zwanenburg “Regional Organisations and the Maintenance of International Peace and Security: Three Recent Regional African Peace Operations” (2006) 11 Journal of Conflict and Security Law 483, at 493–​96; Charles Riziki Majinge “Regional Arrangements and the Maintenance of International Peace and Security: the Role of the African Union Peace and Security Council” (2011) 48 Czech Yearbook of International Law 97, at 126 ff; Gray (above note 7), at 61–​62; Erika de Wet “The Evolving Role of ecowas and the sadc in Peace Operations: A Challenge to the Primacy of the United Nations Security Council in Matters of Peace and Security?” (2014) 27 Leiden Journal of International Law 353, at 358 ff. 172 Riziki Majinge (above note 171), at 136–​39; Olivier Corten “L’Union Africaine, une Organisation Régionale Susceptible de s’Emanciper de L’Autorité du Conseil de Sécurité? Opinio Juris et Pratique Récente des Etats” in Mariano Aznar and Mary Footer (eds.) (2012) 4 Select Proceedings of the European Society of International Law 203; de Wet (above note 171), at 321–​28. 173 Communiqué of the 565th meeting on the situation in Burundi, African Union, Peace and Security Council (psc/​p r/​c omm.(dlxv)) (2015), at 3, para. 13a. 174 Ibid., at 5, para. 15. 175 Security Council Press Statement on Situation in Burundi, UN Security Council, (sc/​ 12174 –​ afr/​3293) (2015). 176 S/​ p v.7652, at 12. 177 Communiqué on the situation on Burundi, 571th meeting at the level of heads of State and Government, Peace and Security Council (psc/​a hg/​c omm.3(dlxxi)) (2016).

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implemented Article 4(h) of its Constitutive Act by subordinating its action to UN Security Council supervision,178 which led it to give precedence to mediation over military intervention. All of these factors clearly show that no right to derogation from the UN Charter, nor any will to revise or reinterpret its provisions on resort to force in a fundamentally new way have been advanced by au or ecowas States.179 A change to existing law is far from being established on this point.180 The positions of the African States as well as the relevant practice –​as the 2015 precedent relating to Burundi clearly indicates –​plead in favour of interpreting any ambiguous provision in the au and ecowas texts in such a way as to ensure the primacy of the jus cogens prohibition on resort to force as established by the UN Charter. Therefore, an examination of relevant precedents confirms that States do not invoke treaties as a legal basis for justifying military intervention in the absence of ad hoc consent. In any case, no precedent is known by which States have construed a specific treaty provision as a possible derogation from the UN Charter regime prohibiting the use of force. It is probably on the basis of such elements that Professor Crawford, as the ilc Special Rapporteur on State responsibility, was able to affirm without being contradicted that he “did not think […] that a State was entitled to waive its right to withdraw its consent to the use of force in its territory by another State”.181 Professor Giorgio Gaja, ilc Special Rapporteur on the responsibility of international organisations, likewise affirmed: While a State may validly consent to a specific intervention by another State, a general consent given to another State that would allow the latter

178 See also UN Security Council Resolution 2279 (2016) and UN Security Council Resolution 2303 (2016). 179 Fourth report of the Special Rapporteur (Giorgio Gaja) on Responsibility of International Organizations (A/​c n.4/​564) (2006), at para. 47 and footnote 72 (Fourth Gaja Report). 180 Laurence Boisson de Chazournes “Les Relations entre Organisations Régionales et Organisations Universelles” (2010) 347 Collected Courses of the Hague Academy of International Law 296; Robert Kolb Ius Contra Bellum: Le Droit International Relatif au Maintien de la Paix (Second Edition, Bruylant, 2009), at 148. 181 Crawford (A/​c n.4/​s r.2588), at para. 40. See also Théodore Christakis and Karine Bannelier “Volenti Non Fit Injuria? Les Effets du Consentement à l’Intervention Militaire” (2004) 50 Annuaire Français de Droit International 102, at 135; Wilhelm Wengler “L’Interdiction de Recourir à la Force : Problèmes et Tendances” (1971) 7 Belgian Review of International Law 401, at 441–​44.

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State to intervene militarily on its own initiative would have to be taken as inconsistent with the peremptory norm.182 Similarly, in its resolution on requested military assistance, the Institute of International Law took the view that “if military assistance is based on a treaty, an ad hoc consent is required for the specific case” and that “[t]‌he requesting State is free to terminate its request or to withdraw its consent to the provision of military assistance at any time, irrespective of the expression of consent through a treaty”.183 Georg Nolte points out that these provisions did not give rise to debate within the Institute, a comment which seems to indicate they enjoy a substantial support among legal scholars. And he infers from the text adopted that: an important aspect of the resolution is the rejection of the possibility to justify the use of foreign troops, […] merely by reference of (sic) an abstract ex ante consent of the State concerned. […] This […] substantially restricts the potential significance of a provision like Article 4h) of the Constitutive Charter of the African Union.184 It should also be noted that in 2015 certain sources reported the conclusion of an agreement between Turkey and the United States setting up a “security zone” in Syrian territory adjoining the Turkish border.185 The lawfulness of concluding such an agreement was challenged by Russia in particular.186 Turkey, like the United States, took the view that it was entitled to act within the framework of self-​defence against the “Islamic State”.187 It can be observed that the compatibility of this agreement –​amounting to establishing a form of temporary occupation of part of a State’s territory without its consent –​with 1 82 Fourth Gaja Report (above note 179), at para 48, footnote omitted. 183 ‘Present Problems of the Use of Force in international Law’, Institute of International Law, Rhodes Session –​2011, 10th Commission (2011), at Article 4, para. 3 and Article 5. 184 Georg Nolte “The Resolution of the Institut de Droit International on Military Assistance on Request” (2012) xlv Belgian Review of International Law 241, at 255; see also Kolb Jus Contra Bellum (above note 180), at 324. Compare Eliav Lieblich International Law and Civil Wars: Intervention and Consent (Routledge, 2013), at 192 ff; Ana Peyro Llopis Force, onu et organisations régionales (Bruylant, 2012), at 407. 185 Kristen Daugirdas and Julian Mortenson “Contemporary Practice of the United States” (2015) 109 American Journal of International Law 873, at 886–​87. 186 Id., at 887. 187 See generally Olivier Corten “The Military Operations Against the ‘Islamic State’ (isil or Da’esh) –​2014” in Olivier Corten, Tom Ruys and Alexandra Hoffer (eds.) The Use of Force in International Law: A Case-​based Approach (Oxford, 2018), at 873 ff.

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the peremptory prohibition on the use of force raises questions. At the same time, the appreciation of the validity of the agreement between Turkey and the US depends on the validity of their claim that their resort to force against Syria (of which the agreement is part) is conducted in exercise of their right to self-​defence. If this is true, then the agreement does not violate Article 2(4) of the UN Charter and cannot be considered as void; if it is not, then Article 2(4) is violated, the agreement is void and cannot constitute the legal basis for any kind of conduct linked to its application. This last example echoes the difficulties raised by some of the ilc members relating to peremptory status of a prohibition that is not itself absolute but provides for exceptions. Should the rule that is candidate for peremptory status be free of exceptions and ambiguities as to its scope? Although, on the face of it, the argument appears to have a certain logic, we will now show that it should be rejected. The Irrelevance of Exceptions and Ambiguities in Interpretation in Establishing the Peremptory Status of the Rule Contrary to what some scholars have suggested,188 a rule is not excluded from having jus cogens status because it provides for exceptions or because there are divergent views as to its interpretation. First of all, this claim implies that States have been misled in their appreciation of what a jus cogens norm is, having incorrectly applied the concept to a norm that would by definition be excluded from it. Such reasoning cannot be accepted. The overwhelming practice of States in favour of the recognition of the prohibition in Article 2(4) as peremptory shows that States do not conceive jus cogens as being limited to rules that are free from exceptions or whose scope is beyond controversy. Turning more specifically to the point relating to exceptions, on a more theoretical level, the definition of jus cogens as set out in Article 53 of the vclt refers to “derogations” not “exceptions”. As Professor Helmersen explains, the two terms should not be confused: 2.2

Exceptions can be distinguished from derogations by their level of generality. An exception is at the same level of generality as the rules that it modifies. A treaty rule will typically contain its exceptions in the treaty itself, or at least in the source of law that is binding on the parties to the treaty. The application of a derogation, on the other hand, will be limited 188 See comments by Murase (A/​c n.4/​s r.3459), at 13–​14 and Lehto (A/​c n.4/​s r.3459), at 20. See also James Green “Questioning the Peremptory Status of the Prohibition of the Use of Force” (2011) 32 Michigan Journal of International Law 215, at 229–​36.

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to some of the parties that are bound by the rule in question; a “derogation” between all parties should rather be considered an exception.189 In this case, the term “derogation” must not be understood as the equivalent to an “exception”190 but as referring to the conclusion of treaties purporting to set aside enforcement of the rule. As one arbitration tribunal pointed out, “le jus cogens est simplement la caractéristique propre à certaines normes juridiques de ne pas être susceptible de dérogation par voie conventionnelle”.191 The derogation comes in therefore when “les articles du traité postérieur qui sont en contradiction avec les dispositions du traité antérieur rendent ces dernières non applicables”.192 Along the same lines, in his first report on jus cogens, the ilc Special rapporteur does not refer to the notion of exception but correctly defines jus cogens by evoking “a set of norms from which States cannot contract out”.193 This is confirmed by the fact that the prohibition on the use of force is not the only rule containing exceptions that has been qualified as jus cogens. Examples are the “basic rules of international humanitarian law” or “principles of international humanitarian law” or the “prohibition of war crimes”.194 Even though the ilc has not explicitly stated which ihl rules are referred to, it seems incontrovertible that the prohibition of attacks directed against civilians stemming from the principle of distinction is included in this category. However, this prohibition, whose violation undoubtedly constitutes a war crime as the icc Statute confirms,195 is accompanied by an exception allowing for attacks directed against civilians who directly participate in hostilities

189 Sondre Torp Helmersen “The Prohibition of the Use of Force as Jus Cogens: Explaining Apparent Derogations” (2014) Netherlands International Law Review 167, at 175–​76. 190 Dinstein (above note 24), at 111. 191 Case Concerning the Delimitation of Maritime Boundary between Guinea-​Bissau and Senegal, Arbitral Award of 31 July 1989 (1989) xx Reports of International Arbitration Awards 119, at 135, para. 41 (‘jus cogens is simply the characteristic inherent in certain legal norms that cannot be derogated from by treaty’; our translation); Anne Lagerwall “Article 64” in Corten and Klein (above note 142), at 1467. 192 Jean Salmon (ed) Dictionnaire de Droit International Public (Bruylant, 2001), at 325 (“the articles of the subsequent treaty which are in contradiction with the provisions of the earlier treaty render the latter inapplicable”; our translation); see also Levan Alexidze “Legal Nature of Jus Cogens in Contemporary International law” (1981) 172 Collected Courses of the Hague Academy of International Law 262 . 193 First Tladi Report (above note 2), at para. 64. 194 Id., at para. 116. 195 Article 8 of the 1998 Rome Statute of the International Criminal Court, at para. 2(b)(i) and para. 2(e)(i).

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for such time as this participation lasts.196 Even torture, whose peremptory status appears uncontested, is not free from qualifications. Indeed, article 1 of the 1984 Convention Against Torture excludes from the definition of torture “pain or suffering arising only from, inherent in or incidental to lawful sanctions”.197 These terms did not prevent the icj from explicitly considering the prohibition of torture as peremptory.198 And rightly so, since they do not create a derogation to the prohibition of torture, they simply delimit the scope of application of the prohibition. Along the same lines, the fact that international law allows for a military intervention following the consent of the territorial State, or that the UN Charter allows for resort to force in self-​defense, cannot be persuasively invoked to disprove the peremptory character of Article 2(4) of the UN Charter.199 For similar reasons, the divergent views on the interpretation of the prohibition on the use of force cannot prevent the rule from attaining peremptory status. This is only logical since all rules are to some extent subject to divergent views relating to their scope of application.200 The principle of distinction as one of the “basic rules of international humanitarian law” mentioned above is an example in this regard. Indeed, much like self-​defence, the notion of direct participation in hostilities and its duration is far from clear and has given rise to much controversy.201 Along the same lines, even rules such as the prohibition of genocide or of torture, that seem as uncontested candidates to be part of jus cogens and have been explicitly recognised as such by the icj,202

196 Article 51(3) of the 1949 Protocol Additional to the Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts. See also Jean-​Marie Henckaerts and Louise Doswald-​ Beck Customary International Humanitarian Law: Volume i, (Bruylant, 2005), at 19 (rule 6). 197 Article 1 of the 1987 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The terms are reproduced in the definition of torture enshrined in Article 7, para. 2(e) of the icc Statute (above note 195). 198 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), icj Reports 2012, p. 422, at para. 99. 199 O’Connell (above note 24), at 232; Orakhelashvili (above note 24), at 51. 200 See the remarks by Claudio Grossman Guiloff, Summary (A/​c n.4/​s r.3463) (2019), at 8. 201 See, among many, Nils Melzer Interpretative Guidance on the Notion of Direct participation in Hostilities under International Humanitarian Law (International Committee of the Red Cross, 2009); Emily Crawford, Identifying the Enemy: Civilian participation in Armed Conflict (Oxford, 2015). 202 See Questions relating to the Obligation to Prosecute or Extradite (above note 198), at para. 99. and Armed Activities on the Territory of the Congo (New Application:2002) (Democratic Republic of the Congo v. Rwanda), icj Reports 2006, p. 6, at para. 64.

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have raised questions as to their interpretation.203 Moreover, as the icj has affirmed in the Military and Paramilitary Activities case, not all interpretations represent a challenge to the rule as such; instead of undermining the rule, some divergent views end up confirming it.204 Therefore, the mere existence of different interpretations of a prohibition cannot by definition imply that the prohibition as such is rejected. In reality, it all comes down to establishing what exactly is covered by the prohibition to resort to the threat or use of force under Article 2(4). Ultimately, States’ conventional practice confirms their position of principle: Article 2(4) of the Charter must be considered as peremptory law that allows no derogations. Contrary to what some commentators have claimed, this peremptory character is not limited to the prohibition of aggression but extends to the prohibition of any threat or use of force. This status triggers a number of consequences that will be examined in the next section of this chapter. 3

Why Does the Jus Cogens Character of the Prohibition on the Use of Force Matter?

The first and most obvious result of the peremptory character of the prohibition on the use of force is the invalidity of treaties that are contrary to the prohibition. Thus, turning back to the Turkey/​US agreement relating to the creation of a security zone in the territory of Syria without its consent, assuming that the right to self-​defence cannot be invoked in this case,205 the agreement is a violation of Article 2(4) of the Charter. As such, it is void and cannot constitute a valid legal basis for any rights that these States will be exercising within this zone. Along the same lines, for example, Article 6 of the ussr/​ Persia agreement206 is equally void and cannot be the legal basis in case the Russian armed forces invade the territory of Iran. 203 See for example the discussion about whether ethnic cleansing is a form of genocide or not, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), icj Reports 1996, at para. 190; as for torture, as one of the ilc members pointed out during the discussions, “it was accepted that rape could constitute torture but that had not always been the case in the past”, Summary record of the 3463rd meeting (A/​c n.4/​s r.3463) (2019), at 8. 204 Military and paramilitary activities case (above note 7) para. 186. 205 Corten (above note 7), at 126 ff. 206 See Michael Reisman “Termination of the USSR’s Treaty Right of Intervention in Iran” (1980) 75 American Journal of International Law 144.

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However, in both cases, the majority of States has been reluctant to cry out the nullity and invalidity respectively of these agreements as a result of their intention to establish a regime derogating from a peremptory norm. Moreover, there is no formal pronouncement by any international or national tribunal whereby a treaty is proclaimed as void or invalid as contrary to Article 2(4) of the UN Charter. These precedents are indicative of the general dearth of practice relating to the nullity/​invalidity of treaties as a result of their contradiction with jus cogens norms, or cases where the Rolls Royce remained in the garage, to apply Ian Brownlie and Prosper Weil’s metaphor. Yet this does not mean that all the effort of qualifying the prohibition on the use of force as peremptory is in vain. Indeed, this qualification entails a number of consequences identified in the ilc draft conclusions. The most prominent of these consequences, in our view, are the following: relevant treaties and other sources should be interpreted according to the jus cogens norm (3.1); circumstances precluding wrongfulness cannot be invoked to justify violations of Article 2(4) of the UN Charter (3.2); and, in case of serious breach of article 2(4), States have the secondary obligations set out in article 41 of the ilc articles on State responsibility (3.3).207 We will examine each of these consequences in order to identify their added value when applied to the prohibition on the use of force. Interpretation of Treaties (and Other Sources of International Law) in Accordance with Jus Cogens According to Draft Conclusion 20 adopted on first reading by the ilc, “where it appears that there may be a conflict between a peremptory norm of general international law (jus cogens) and another rule of international law, the latter is, as far as possible, to be interpreted and applied so as to be consistent with the former”.208 As the Special Rapporteur confirms in his third report, this consequence is to be achieved through the application of the principles of interpretation and concretely through the principle of conciliatory interpretation set out in article 31(3)(c) of vclt: “the application of the rules of interpretation in articles 31 and 32 should, as far as possible, seek to achieve a meaning that is consistent with jus cogens and thus avoid the ‘draconian’ effect of invalidity”.209 As the Rapporteur rightly states, this view is supported by State practice as well as by the icj’s analysis of Article xx of the Iran/​US 1956 Treaty of Amity, 3.1

2 07 See Draft Conclusions on Peremptory Norms (above note 1). 208 Id., at 5. 209 Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (jus cogens) (A/​c n.4/​714) (2018), at para 58. See also Lagerwall (above note 191), at 1475.

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Economic Relations, and Consular Rights in the Oil Platforms case.210 In the words of Judge Bruno Simma, when the principle of Article 31(3)(c) is applied, and a treaty is interpreted by taking into account all applicable relevant rules of international law, “if these general rules of international law are of a peremptory nature (…), then the principle of interpretation just mentioned turns into a legally insurmountable limit to permissible treaty interpretation”.211 This is confirmed by State practice in relation to treaties whose terms could be interpreted as running counter to Article 2(4) of the UN Charter. The 1960 Treaty of Guarantee between Cyprus, Turkey, Greece and the UK as well as Article 4(h) of the Constitutive Act of the African Union, already mentioned above, are a good example in this respect.212 Indeed, as it was previously shown, on both cases, States favoured a restrictive interpretation, tending to reconcile the relevant instruments with the UN Charter, rather than to interpret them as establishing derogations from the Charter. The real question however is: does the jus cogens nature of the rule have any added value in this respect? In other words, is it really necessary to establish the jus cogens nature of the prohibition on the use of force in order to achieve this conciliatory interpretation in favour of the UN Charter? It may be submitted that this is not the case. By virtue of Article 103 of the UN Charter, obligations under the Charter already prevail over obligations arising under other international agreements in case of conflict between them. This provision could be interpreted as implying that UN Charter provisions should also be prioritised when Article 31(3)(c) is applied. If this is the case, then, jus cogens or not, Article 103 already imposes –​in Judge Simma’s words –​“a legally insurmountable limit to permissible treaty interpretation” in favour of the regime regulating the use of force established by the UN Charter. This limit excludes the possibility of adapting the UN Charter obligations to other rules of general international law; it is the latter that should be adapted to the former, not the other way around. However, this reasoning is not entirely persuasive. First of all, textually speaking, the application of article 103 of the UN charter is limited to conflicts between norms. An application of Article 103 outside situations of conflict of norms would imply that the provision’s scope encroaches upon the one of vclt Article 31(3)(c). This is a step that the ilc fragmentation study was not willing to take. Indeed, there is nothing in the study’s extensive analysis of either Article 103 of the UN Charter or the principle of systematic 2 10 Third Tladi Report (above note 209), at 22–​27, paras. 55-​68. 211 Oil Platforms (Iran v. United States of America) (above note 25) Separate Opinion of Judge Simma, at para. 9. 212 See also the similar analysis in Third Tladi Report (above note 209), at paras. 59-​61.

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interpretation set out in vclt Article 313(c) that suggests that the UN Charter has primacy over general international law when a systematic interpretation is performed. In the end, the debate is rather academic. If the wording of a bilateral treaty uncontrovertibly derogates from the prohibition on the use of force and there is no conciliation possible through interpretation (although, given the possibilities of interpretation, this is in itself a rather improbable scenario), the consequences for the treaty will depend on whether the prohibition on the use of force is peremptory: if it is, the treaty is void ab initio as per Article 53 of the vclt; if it is not, by virtue of Article 103 of the UN Charter, Article 2(4) prevails over the treaty but the treaty’s validity is preserved. However, even in this case, for the purposes of the use of force the end result will be the same: either because it is void or because it is set aside, in the end, the bilateral treaty will not be able to serve as a valid legal basis for a resort to force that would be unlawful under the UN Charter. In conclusion, the impact of jus cogens on the validity and interpretation of treaties, although important theoretically, does not appear to have a significant practical added value. Things are radically different when we turn to the possibility to invoke circumstances precluding wrongfulness. 3.2

No Invocation of Circumstances Precluding Wrongfulness No circumstance precluding wrongfulness under the rules on the responsibility of States for internationally wrongful acts may be invoked with regard to any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law (jus cogens).213

This is the text of Draft Conclusion 18 adopted on first reading by the ilc, which in essence reproduces the rule set out in Article 26 of the 2001 Articles on State Responsibility.214 The importance of this statement specifically for the prohibition on the use of force can be fully understood if we consider Ago’s position, referred to above, leaving open the possibility to invoke the state of

213 Draft Conclusion 18 of the Draft Conclusions on Peremptory Norms (Jus Cogens), (above note 1), at 145. 214 Article 26 of the Draft Articles on Responsibility for States for Internationally Wrongful Acts, with commentaries, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001): “Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law”.

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necessity in order to justify less grave forms of use of force.215 Along the same lines, some authors have referred to the existence of a state of necessity as a justification for the use of limited force, in the context of operations relating to the rescue of nationals abroad,216 to an emergency of a humanitarian nature,217 or to small scale attacks against terrorist groups on the territory of a state which is itself unwilling or unable to put an end to the terrorist activities.218 However, if “less grave forms” of the use of force are also considered as peremptory, circumstances precluding wrongfulness cannot be invoked in order to justify violations of Article 2(4) of the UN Charter that do not rise to the level of armed attack. As it has been sufficiently shown elsewhere,219 the exclusion of the possibility to invoke circumstances precluding wrongfulness as a justification for an unlawful use of force is firmly rooted in declarations of States, relevant precedents, as well as in the works of the ilc itself. The crux of the debate is fairly simple: either the use of force can be justified by the Charter and the invocation of the circumstances precluding wrongfulness is pointless, as there is no wrongfulness to be precluded; or the resort to force contravenes the conditions laid down in the Charter and the circumstances precluding wrongfulness cannot be invoked due to the peremptory character of the rules. This is very aptly stated by James Crawford, the last Special Rapporteur on State responsibility. Reacting to a statement by the UK about the possibility of justifying humanitarian intervention through circumstances precluding wrongfulness,220 Crawford recalled Ago’s argument that some limited uses of force that did not constitute aggression might prove not 2 15 See above note 13 and relevant text. 216 See Jean Raby “The State of Necessity and the Use of Force to Protect Nationals” (1988) 26 Canadian Yearbook of International Law 253. 217 See Wil D. Verwey “Humanitarian Intervention under International Law” (1985) 32 Netherlands International Law Review 414; Ian Johnstone “The Plea of Necessity in International Legal Discourse: Humanitarian Intervention and Counter-​ Terrorism” (2005) 43 Columbia Journal of Transnational Law 337. 218 Christakis (above note 14), at 173; Théodore Christakis “Vers une Reconnaissance de la Notion de Guerre Préventive ?” in Karine Bannelier, Theodore Christakis, Olivier Corten Pierre Klein (eds) L’Intervention en Irak et le Droit International (Pedone, 2004), at 28; John-​ Alex Romano “Combatting Terrorism and Weapons of Mass Distraction: Reviving the Doctrine of State of Necessity” (1999) 87 Georgetown Law Journal 1023; Ruth Wedgwood “Responding to Terrorism: the Strikes Against Bin Laden” (1999) 24 Yale Journal of International Law 568. 219 Corten (above note 7), at 198 et seq.; Olivier Corten “Etat de Nécessité et Ppérations Militaire Ciblées” 2013 Global Community Yearbook of International Law & Jurisprudence 293. 220 State responsibility: Comments and Observations received from Governments (A/​c n.4/​ 488), 25 March 1998, 86 and 88.

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to be contrary to jus cogens and might be justified by necessity. He then went on to indicate that: [f]‌or present purposes it seems enough to say that either modern State practice and opinio juris license humanitarian action abroad in certain limited circumstances, or they do not. If they do, then such action would appear to be lawful in those circumstances, and cannot be considered as violating the peremptory norm reflected in Article 2(4) of the Charter. If they do not, there is no reason to treat them differently than any other aspect of the rules relating to the use of force. In either case, it seems that the question of humanitarian intervention abroad is not one which is regulated, primarily or at all, by [the state of necessity].221 He added in a most interesting footnote that: Similar reasoning would apply to the controversy over whether “anticipatory” self-​defence is ever permissible. If it is in specific circumstances, [the state of necessity] would appear to be unnecessary. If it is not, then there is no reason why [the state of necessity] should be available to preclude responsibility for anticipatory action.222 The arguments of the Special Rapporteur are plain as day and were supported by several Commission members.223 Several States spoke in favour of this in the debates within the General Assembly’s Sixth Committee.224 No State objected to these assertions. The same picture can be drawn from the debates in ilc and the Sixth Committee in relation to the Draft Conclusions on jus cogens. No member of the Commission contested the rule set down in draft conclusion 18. In the discussions in the Sixth Committee, only the Netherlands questioned whether the complete absence of any circumstance precluding wrongfulness with respect to an act not in conformity with an obligation arising under a jus cogens norm was legally sound. At least in theory,

221 Second Report of the Special Rapporteur (James Crawford) on State Responsibility (A/​ cn.4/​498) (1999), at para. 287. 222 Id., at 72, footnote 568. 223 See Economides (A/​c n.4/​s r.2591), at para. 37; Elaraby (A/​c n4/​s r.2591), at para. 26, Kateka (A/​c n.4/​s r.2592), at para. 26. 224 See Austria (A/​C.6/​54/​s r.22), at para. 16; (A/​C.6/​54/​s r.23), at para. 7; Mexico (A/​C.6/​54/​ sr.23), at para. 20; Cuba (A/​C.6/​54/​s r.28), at para. 93.

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situations of distress might be envisaged in which a State must choose between two jus cogens obligations when respect of both was impossible in the given circumstances.225 This statement is, to say the least, puzzling. The reference to a violation as a result of a choice between two jus cogens rules is more akin to state of necessity rather than distress. Moreover, it is not at all clear how would this hypothetical scenario of distress apply with respect to the jus cogens rule prohibiting the threat or resort to force. The comment made by the Netherlands may be read as referring to humanitarian intervention. If this is the case, then it echoes the UK’s statement explicitly rejected by James Crawford. Be that as it may, a reading of Article 24 of the 2001 ilc Articles on State responsibility confirms that distress was never contemplated as a circumstance liable to preclude the wrongfulness of the use of force by one State against another; it was conceived of in order to cover “aircraft or ships entering State territory under stress of weather or following mechanical or navigational failure”.226 Indeed, the situation covered by article 24 is particularly circumscribed both in respect of the objective pursued and the resources used. The objective must be to save one’s own life or that of people in one’s care and no longer generally to save “lives”, or even less to safeguard a vital or an essential interest, as in the state of necessity.227 A State cannot invoke distress to attack another State because of a danger weighing on all of its population, for example further to incursions by terrorist groups based in the territory of the State attacked. The concept of people that a State organ is responsible for protecting must be understood restrictively as covering the crew or passengers of a ship or aircraft, for example, and not as applying to an undetermined number of people based on a connection of nationality or jurisdiction.228 As for the means used, they must be strictly necessary for the pursuit of the objective in question.229 The act that might be justified must not create a “comparable or greater peril”, which would certainly be the case in the event of military action incompatible with Article 2(4). In this context, it should be noted that already

2 25 Netherlands (A/​C.6/​73/​s r.26), at para. 56. 226 Paragraph 2 of the Commentary to Article 24 of the Articles on State Responsibility (above note 214), at 78. 227 Jean Salmon “Les Circonstances Excluant l’Illicéité” in Karl Zemanek and Jean Salmon La Responsabilité Internationale (Pedone, 1987), at 120. 228 Paragraph 7 of the Commentary to Article 24 of the Articles on State Responsibility (above note 214), at 80. 229 Id., at para. 8.

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in one of the early drafts of the commentary on distress, the Commission had specified that the State organ invoking distress must not jeopardise “many of the international obligations of its State, and particularly the more important of them”,230 an expression that can perfectly well be interpreted as applying to the prohibition on the use of force.231 The conditions surrounding the idea of distress therefore appear to be incompatible with a justification relating to the use of force within the meaning of the Charter.232 This is confirmed by the fact that no State supported the view put forth by the Netherlands. On the contrary, draft conclusion 18 proved to be one of the most uncontroversial ones, attracting almost no comments on the part of States.233 The same however cannot be said for the draft conclusion bearing on the secondary obligations relating to the law of state responsibility in case of serious breaches of jus cogens to which we shall no turn. Triggering of Secondary Obligations Pertaining to the Law of International Responsibility As was the case with circumstances precluding wrongfulness, the Draft Conclusion spelling out the consequences of a serious breach of jus cogens in relation to international responsibility mirrors the 2001 ilc articles on State responsibility. Thus, Draft Conclusion 19 reproduces the obligation to cooperate in order to bring to an end the jus cogens breach (paragraph 1), the obligation for States not to recognize as lawful a situation created by such breach, and the obligation not to “render any aid or assistance in maintaining that 3.3

230 Paragraph 9 of the Commentary to Draft Article 32 of the Draft Articles on the State Responsibility, provisionally adopted, Report of the International Law Commission, Thirty-​ First Session, General Assembly Official Records (A/​34/​10) (1979), Chapter iii, at 135. It is important to note that, at that stage of the work of the Commission, the chapter on the circumstances precluding wrongfulness did not yet include the future Article 26 on the impossibility to invoke such circumstances in case of a violation of a jus cogens norm. The peremptory character of a norm as an obstacle to the applicability of a circumstance precluding wrongfulness was at the time only envisaged with respect to consent; see Ibid., at 109, Draft Article 29 (2). 231 See Id., at para. 11. See also Olivier Corten and Pierre Klein Droit d’Ingérence ou Obligation de Réaction? (Second Edition, Bruylant, 1996), at 218. 232 Salmon (above note 227), at 120. 233 For the few exceptions of comments explicitly approving the exclusion of circumstances precluding wrongfulness, see Ecuador (A/​C.6/​74/​s r.27), at para. 35; Mozambique (A/​C.6/​ 73/​s r.28), at para. 3; Germany, Comments transmitted to the ilc, Note no. 78/​2016 (decision by the Federal Constitutional Court citing with approval Article 26 of the 2001 ilc Articles on State responsibility).

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situation” (paragraph 2).234 Equally important is that, although this was not the Special Rapporteur’s first choice,235 the application of all these obligations is also limited to “serious breaches” of jus cogens obligations, defining the term “serious” as “involv[ing] a gross and systematic failure by the responsible State to fulfil that obligation”.236 That a serious breach of a jus cogens norm triggers the aforementioned secondary obligations under the law of international responsibility was accepted by the vast majority of States that expressed themselves on this issue in the Sixth Committee, some even asserting that they should apply to all breaches of peremptory norms, not just to the “serious” ones.237 Moreover, and without entering into a detailed discussion of each of the three obligations listed in draft conclusion 19 which goes beyond the scope of this chapter, it should be noted that recent practice –​such as the condemnation by the UN General Assembly of Crimea’s annexation by the Russian federation238 as well as the criticism with which was met the US decision to recognize Jerusalem as the capital of Israel239 –​confirms both the obligations as such and the need to reiterate them in the Draft Conclusions on jus cogens. Turning more specifically to the prohibition on the use of force, should the ilc decide to uphold the distinction between breaches of jus cogens norms into “serious” and “not serious” ones, thus limiting the application of the obligations of co-​operation, non-​recognition, and not providing aid or assistance 234 Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 1), at 145–​46. 235 Compare the text of draft conclusion 21 initially proposed by the Special Rapporteur, Third Tladi Report (above note 209), at 68. 236 Draft Conclusion 19(3) of the Draft Conclusions on Peremptory Norms (above note 1), at 146. 237 See comments by Nicaragua (A/​C.6/​74/​s r.23), at para. 73; Poland (A/​C.6/​74/​s r.23), at para. 124; Micronesia (A/​C.6/​74/​s r.24), at para. 100; Cuba (A/​C.6/​74/​s r.25), at para. 21; Egypt (A/​C.6/​74/​s r.26), at para. 4; Spain (A/​C.6/​74/​s r.26), at para. 15; Togo (A/​C.6/​74/​ sr.26), at para. 28; South Africa (A/​C.6/​74/​s r.27), at para. 47; Cyprus (A/​C.6/​73/​s r.25), at para. 32; Brazil(A/​C.6/​74/​s r.25), at para. 40; Portugal (A/​C.6/​73/​s r.26), at para. 117; Mozambique (A/​C.6/​73/​s r.28), at para. 3. The comments by Israel were an exception to this general approval of Draft Conclusion 19; see (A/​C.6/​74/​s r.24), at para. 19. Poland, Egypt, Togo, South Africa, Brazil, and Mozambique were in favor of extending the application of these obligations to all breaches of jus cogens norms. 238 See UN General Assembly Resolution 68/​262 (A/​r es/​68/​262) (2014). See also Mary Ellen O’Connell “The Crisis in Ukraine –​2014” in Ruys, Corten and Hoffer (above note 187), at 855 ff. 239 See, among many, the analysis by Anne Lagerwall “Non Recognition of Jerusalem as Israel’s Capital: A Condition for International Law to Remain a Relevant Framework?” (2018) 50 Questions of International Law 33.

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only to serious breaches, violations of Article 2(4) of the Charter could provide examples to both categories. In this respect, it is tempting to draw a parallel with the abovementioned distinction made by the icj between “the most grave forms of the use of force (those constituting an armed attack)” and “less grave” ones,240 although in casu the distinction was made by the Court in order to identify the existence of an armed attack for the purposes of the exercise of the right to self-​defense, not for the purposes of applying any secondary obligation. If this parallel is drawn, the result would be that a “less grave” violation of Article 2(4) of the UN Charter –​i.e., one that does not reach the threshold of armed attack –​would not be considered a “serious” breach for the purposes of State responsibility and States would not be bound by the obligations listed in article 41 of the ilc articles on State responsibility and in draft conclusion 19. This conclusion seems counter-​intuitive and it is indeed difficult to imagine that international law would allow a State to recognize a situation resulting from an unlawful use of force or to give aid or assistance to actions that violate article 2(4) of the UN Charter even when these actions do not constitute an armed attack. This probably explains the reluctance of some States to accept the distinction between “serious” and “less serious” breaches. Be that as it may, from a practical perspective, distinguishing breaches of Article 2(4) into serious and less serious ones may not be as problematic as it initially seems. Firstly, the notions of “armed attack” and “less grave” violations of Article 2(4) are operating as communicating vessels: if the notion of armed attack is interpreted broadly –​and, in case of a resort to force, the targeted State wishing to invoke its right to self-​defense will favour such an interpretation –​, then the scope of “less grave” unlawful uses of force becomes narrower. Secondly, “less grave” unlawful resorts to force (such as small-​scale border incidents241) do not usually create a “situation”, as per article 41 of the ilc articles on State responsibility, that would require the application of the obligation of non-​recognition and the obligation not to provide aid or assistance in maintaining that situation. For the rest, any aid or assistance provided in the violation of Article 2(4) of the UN Charter would be prohibited by the rule enshrined in article 16 of the ilc articles on State responsibility.242

2 40 Military and paramilitary activities case (above note 7), at para. 191. 241 Compare eecc Partial Award (above note 7), at 465–​66, paras. 11-​12. 242 Article 16 of the Articles on State Responsibility (above note 214), at 65.

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Conclusion

In this Chapter, we have established that it is not just the prohibition of aggression but the entire UN Charter regime prohibiting the threat or use of force that is peremptory. This view corresponds to the position adopted by States who, as was demonstrated above, have overwhelmingly accepted and recognized the prohibition on the use of force as jus cogens. Accepting the jus cogens nature of the prohibition in Article 2(4) of the UN Charter entails several consequences according to the ilc Draft Conclusions adopted on first reading in 2019, among which we have selected the following: treaties establishing derogations are void or invalidated, other rules of international law –​conventional or otherwise –​have to be interpreted in such a way as to uphold the prohibition, violations of the prohibition cannot be admitted through the invocation of circumstance precluding wrongfulness, and serious breaches of the rule trigger the application of the secondary obligations set out in Article 41 of the ilc articles on State responsibility. Without questioning the importance of these consequences, we submit that when applied to “less grave” violations of the prohibition on the use of force they are of limited practical relevance. There are two notable exceptions to this finding. The first has been identified by the ilc and was examined above: it is the exclusion of circumstances precluding wrongfulness as a justification for breaches of Article 2(4) of the UN Charter. This point cannot be stressed strongly enough. Resolutely, as the recent view put forth in the Sixth Committee by the Netherlands shows, States –​and scholars for that matter –​seem to always be tempted to invoke such circumstances in order to avoid being held responsible for a violation of international law. The second has not been singled out by the ilc in a specific draft conclusion but is equally important: any change or evolution in the interpretation of a jus cogens norm must meet the conditions for the existence of the jus cogens norm itself. In other words, it must be demonstrated that the change or evolution in question has been accepted and recognized by the international community of States as a whole. This is especially the case for interpretations that seek to limit the scope of the prohibition on the use of force, either through the creation of new exceptions or through the extensive interpretation of existing ones. Indeed, as Mary-​Ellen O’Connell has put it: Interpretation that permits conduct contrary to the established meaning of the norm is a form of derogation. (…) As a theoretical matter, attempting to create a new treaty rule or a rule of customary law that derogates from a jus cogens prohibition may be distinctive from derogation through interpretation. As a practical matter, the two processes

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are indistinguishable. Indeed, it is sometimes difficult to tell whether an expansionist is invoking State practice as evidence of a new rule of customary international law or as subsequent practice relevant to rule interpretation.243 In this respect, accepting the jus cogens nature of the prohibition on the use of force has a clear impact on the interpretation of the norm: any new interpretation, especially any new exception or restriction of the prohibition, has to fulfil the very high standard of proof set out by the vclt and the ilc. It is clear that Roberto Ago’s comment dating back to 1980 has cast a very long shadow with the members of the Commission and, apparently, still continues to do so. States have been more ready to embrace the jus cogens character of the entire prohibition on the use of force as set out in Article 2(4) of the UN Charter. Contrary to what the Special Rapporteur on jus cogens has claimed, this cannot simple be relegated to a mere terminological matter. But even if it were just about terminology, the way the term “prohibition of aggression” has survived within the ilc for decades despite the abundant contrary State practice speaks volumes about the importance of making the correct terminological choice. It is high time that the members of the ilc leave Ago’s shadow and align themselves with the position espoused by States. 243 O’Connell (above note 24), at 244 and 248.

Chapter 23

The Friendly Relations Declaration and Peremptory Norms Jorge E. Viñuales 1

Introduction

When considering the relationship between the development of peremptory norms of international law (jus cogens) and the 1970 Friendly Relations Declaration (frd),1 the most intuitive and expectable point to be made is that the frd gives expression to at least two widely recognised peremptory norms, the prohibition of the use of force and the principle of/​right to self-​ determination. The peremptory character of these two norms is best examined in the context of chapters focusing on these specific norms, for which the frd is but one expression, however important, of their content.2 Rather than approaching the frd from the perspective of one or more peremptory norms, the purpose of this chapter is to analyse the emergence of the concept and content of jus cogens from the perspective of the frd. More specifically, my goal is to examine the relevance of both the process leading to the frd and its specific outcome, i.e. the text of the frd, in the emerging recognition of a certain stratification, i.e. a subject-​matter hierarchy, of norms in international law, of which jus cogens is the most prominent manifestation. As I shall endeavour to show, this role is somewhat ambiguous. Although the frd certainly reflects the efforts to stratify “primary norms”, the rationales underpinning this stratification are not homogeneous and rest primarily (although not exclusively) on State-​centric considerations. By contrast, although the rationales underpinning the stratification embodied in peremptory norms 1 Declaration on Principles of International Law Concerning Friendly Relations and Co-​ operation among States in accordance with the Charter of the United Nations, Resolution 2625 (xxv) (24 October 1970), Annex, Official Records of the General Assembly, Twenty-​fifth Session, Supplement No. 28, UN Doc. A/​5217. 2 See the chapters by Olivier Corten “The Jus Cogens Status of the Prohibition on the Use of Force: What is its Scope and Why Does it Matter?” (Chapter 22) and Ki Gab Park “The Right to Self-​Determination and Peremptory Norms” (Chapter 24) in this volume. For another principle of the Friendly Relations Declaration discussed in this volume, see Hannah Woolaver “Sovereign Equality as a Peremptory Norm of General International Law” (Chapter 25).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_024

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also vary, they rest primarily (although not exclusively) on humanitarian considerations. Thus, the question regarding the role of the frd in the emergence and development of peremptory norms can only receive a nuanced answer. The frd illustrates the normative decade of the 1960s, in which the stratification of primary norms finally permeated certain core rules of international law, from the “basic” principles gathered in the frd, to the introduction of jus cogens in the International Law Commission’s codification of the law of treaties,3 to the reformulation of the ilc’s work on State responsibility.4 As I will endeavour to show, the three modulations of the law have a shared origin. Yet, the other deep current which found expression during this decade, with the adoption of some major human rights treaties, particularly the two International Covenants of 19665 and the Convention against Racial Discrimination of 1965,6 is only reflected in the frd to a limited extent; and it is this second current, centred on human dignity, which subsequently drove the development of peremptory norms. Using broad categories for the sake of simplicity, one could say that but for the inclusion of self-​determination, the frd’s stratification aims to strengthen a State-​centric Westphalian model, whereas the stratification embodied in the concept of peremptory norms, but for the prohibition of the use of force, aims to advance human dignity. The chapter is organised in three main sections. The first examines the process leading to the frd from the perspective of its role in the stratification of primary rules. The second extracts the rationales underpinning this stratification and compares them to those underlying the development of peremptory norms. The third and final section draws some basic conclusions. In essence, the rationale underpinning the stratification embodied in the frd seems ill-​ suited to drive the development of peremptory norms in the future.

3 Draft Articles 16 and 17 proposed in the Third Report of Special Rapporteur (G. G. Fitzmaurice) on the Law of Treaties (A/​c n.4/​115) (1958); Draft Articles 1 and 13 proposed in the Second Report of the Special Rapporteur (Sir Humphrey Waldock) on the Law of Treaties (A/​c n.4/​ 156 and Add. 1-​3) (1963). 4 Report by Mr Roberto Ago, Chairman of the Sub-​Committee on State Responsibility (Approved by the Sub-​Committee), Document (A/​c n.4/​152) (1963) [Sub-​Committee Report], para. 4. 5 1966 International Covenant on Economic, Social and Cultural Rights; 1966 International Covenant on Civil and Political Rights (together “International Human Rights Covenants” or “International Covenants”). 6 1965 International Convention on the Elimination of All Forms of Racial Discrimination.

670 Viñuales 2

The Friendly Relations Declaration and the Stratification of Primary Norms

2.1 A Brief Genealogy of the Friendly Relations Declaration It is generally considered that the impulsion, in the early 1960s, which eventually led to the adoption of the frd in 1970 was the result of a combination of Soviet political propaganda around the doctrine of “peaceful coexistence” and the claim by newly independent and non-​aligned States, with the support of the Soviet bloc, to revisit the foundations of an international legal order that had been developed without them and, in many respects, against their interests. From a political and ideological perspective, this understanding is generally accurate, but it only provides a rather broad explanation of the very specific process triggered, formally, by resolutions 1686 (xvi) of December 1961,7 which placed the item on the UN General Assembly’s agenda, 1815 (xvii) of December 1962,8 which “resolve[d]‌to undertake … a study” of the relevant principles, and 1966 (xviii), of December 1963,9 which established a Special Committee to do so. One aspect to be noted from the outset is the rather remarkable fact that the study was not entrusted to the International Law Commission (ilc), despite the fact that Resolution 1815 (xvii) specifically placed it under the umbrella of Article 13 of the UN Charter. The Special Committee was composed of twenty-​ seven States (later expanded to thirty-​one), i.e. the Committee consisted of State representatives rather than experts acting in their individual capacity. To the eyes of the States supporting the process, the experience of resolution 1803 (xvii) on “Permanent Sovereignty over Natural Resources”, which had been developed by a “Commission” established by the UN General Assembly rather than by the ilc, no doubt partly explains, together with the highly political nature of the exercise, the preference for this route. But that is not all. In the early 1960s, the work of the ilc came under much criticism from both the Soviet bloc and soon from newly independent and non-​aligned States for its focus on questions deemed of lesser importance to these States, the slow

7 Future Work in the Field of the codification and progressive development of international law, General Assembly Resolution 1686 (xvi) (1986). 8 Consideration of Principles of International Law concerning Friendly Relations and Co-​ operation among States in accordance with the Charter of the United Nations General Assembly Resolution 1815 (xvii) (1962). 9 Consideration of Principles of International Law concerning Friendly Relations and Co-​ operation among States in accordance with the Charter of the United Nations, General Assembly Resolution 1966 (xviii) (1963).

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and protracted nature of the debates, and a perceived Western-​bias.10 The stark criticism by Morozov, the ussr representative at the Sixth Committee of the UN General Assembly, when reviewing the ilc’s report on the work of that year provides an inroad into the heart of the debate. He noted that the ilc and the Sixth Committee had initially functioned well and their work had led to important instruments such as the Genocide Convention, but more recently the efforts to address matters connected to the maintenance of international peace and security, such as the definition of aggression, had been “set aside”. In the ussr’s view: The reasons for that disturbing situation were not technical but political. The proposal to define aggression had been opposed in the International Law Commission and the Sixth Committee by the United States and its allies, so that they would be left free to pursue their policy of aggression in Korea, Egypt, China, the Congo, Algeria and elsewhere. Those same Powers were trying to prevent principles categorically condemning colonialism and proclaiming the right of all peoples to exploit their natural resources as they saw fit from being included in the covenants of human rights.11 Morozov went on to criticise the UN Secretariat’s Office of Legal Affairs, which had not remedied the situation and, more fundamentally, was staffed mostly by “nationals of the United States and its allies”. Specifically, he expressed dissatisfaction with the work of the ilc (under Special Rapporteur Garcia Amador) on State responsibility for its narrow focus on injuries to the person or property of aliens: That was not in accordance with the instructions given the Commission under resolution 799 (viii). There was no justification for so narrow an attitude, for the imperialist States were daily interfering in the internal affairs of other States, and it was therefore indispensable that the principles of international law relating to illegal acts committed by States should be codified. Consequently, the draft articles called for study on a very broad basis.12 10 11 12

See Georges Abi-​Saab “The System of the Friendly Relations Declaration’ in Jorge E. Viñuales (ed.) The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law (Cambridge, 2020). ussr (A/​C.6/​15/​s r.651), at para 5. Id., para. 9.

672 Viñuales For these reasons: The International Law Commission should first of all give priority to the principles governing the relations between States· and present a preliminary draft to the Sixth Committee during the coming year [ … ] The principles to be considered would include the principles governing State responsibility in the event of violation of national sovereignty and of the right of peoples to self determination, especially their right to exploit their national resources; State responsibility in the event of subversive activities, espionage, terrorism, violation of territorial integrity, etc.13 Aside from the clear political and ideological overtones of this intervention, which were shared by delegates from the Soviet bloc but also seconded by those from newly independent countries, the ussr was calling for a codification effort that would take into account both norms of conduct and legal consequences and, among the former, it would not be confined to mere injuries to aliens (what could be called a “private law” perspective) but would also encompass broad principles, such as the prohibition of aggression, non-​intervention, sovereign equality and self-​determination (“public law”). Diving even deeper into the texture of events, Georges Abi-​Saab observes that what seemed to annoy the Soviets the most was the fact that the then Director of the Codification Office and Secretary ex officio of the ilc, Dr Liang, had involved an American Law School in the research work relating to State responsibility. As Abi-​Saab notes, this was most likely at the behest of the then Special Rapporteur, F. V. Garcia Amador from Cuba, who was an alumnus of that School.14 2.2 Stratification of Primary Norms and State Responsibility What is interesting for present purposes is the fact that the reformulation of the work on State responsibility in the early 1960s so as to encompass breaches of all norms of international law, not just those protecting the person and property of aliens abroad, and work on the principles of international law, are closely connected. This point has been overlooked, possibly as a result of the more general loss of interest in the frd and its origins. The Sub-​Committee established in 1962 by the ilc, and chaired by Roberto Ago, to reformulate the approach given to the codification of the law on State

13 14

Id., para. 10. Abi-​Saab (above note 10), at 16.

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responsibility had to tackle the tension that existed between the private and the public law approach since the very beginning of its work. In this context, the specific expectations formulated by Morozov in the Sixth Committee again came to the forefront. In his summary report, Ago noted that some members wanted to focus on responsibility for injuries to aliens whereas others argued that: it was desirable to carry out a general study of the subject, taking care not to confuse the definition of the rules relating to responsibility with that of the rules of international law —​and in particular those relating to the treatment of aliens —​the breach of which can give rise to responsibility. Some of the members in this second group stressed in particular that, in the study of the topic of responsibility, new developments of international law in other fields, notably that of the maintenance of peace, ought also to be taken into account.15 The second view prevailed. Thus, it was in 1962 that the separation between “primary” and “secondary” rules famously made in 1970, in Ago’s Second Report as Special Rapporteur, was first introduced.16 And it was also in 1962 that the UN General Assembly decided to launch the study, entrusted the following year to a Special Committee rather than to the ilc, of what many States saw as the main primary norms, namely the “Principles of International Law Concerning Friendly Relations and Co-​operation Among States in Accordance with the Charter of the United Nations”, first and foremost the prohibition of the use of force.17 The existence of a stratification arising from the importance of different primary norms was perceived since the beginning of Ago’s work as Special Rapporteur. In his second report, submitted six months before the adoption of the frd by the UN General Assembly, Ago noted that: A consideration of the various kinds of obligation placed on States in international law, and in particular a grading of such obligations according to their importance to the international community, may have to be regarded as a necessary element for assessing the gravity of an internationally wrongful act and as a criterion for determining the consequences it should have. But this must not obscure the essential fact that it is one 15 16 17

Sub-​Committee Report (above note 4), at para. 4. Second Ago Report (above note 4), at paras. 7 and 11. Resolution 1815 (xvii), at para. 3.

674 Viñuales thing to define a rule and the content of the obligation it imposes and another to determine whether that obligation has been violated and what should be the consequences of the violation.18 Thus, the content of primary norms was to be left outside the scope of work on State responsibility. But it was at the heart of the work of the Special Committee leading to the frd. The travails of the modulation of secondary rules to reflect such stratification, first with Article 19 of the Draft Articles on State Responsibility adopted in 1996 and then with Articles 40, 41 and 48 of the Draft Articles adopted in second reading in 2001, are well known and they cannot be examined here in any detail.19 What must be kept in mind from this brief account is the impulsion for the modulation. 2.3 Stratification of Primary Norms and the Law of Treaties An analogous conception also prevailed with respect to the modulation of the other major set of “rules about rules”, namely the law of treaties. The need to take into account a certain stratification of primary rules (avant la lettre) had been considered by Fitzmaurice, in his third report as ilc Special Rapporteur on the law of treaties. As early as 1958, Fitzmaurice had observed, by analogy with private law, that treaties may be invalid because their object is in conflict with international law. Yet, only a conflict with certain norms of international law could have this effect, those that are “mandatory and imperative in any circumstances (jus cogens)” or, more specifically, that have “a kind of absolute and non-​rejectable character (which admit of no ‘option’) that the question of the illegality and invalidity of a treaty inconsistent with them can arise”.20 Fitzmaurice mentioned three categories of norms having such character. One category (with the example of the protection of prisoners of war) encompasses those rules “where the position of the individual is involved, and where the rules contravened are rules instituted for the protection of the individual”. 18 19

20

Second Ago Report (above note 4), at para. 7. See Pierre-​Marie Dupuy “The Deficiencies of the Law of State Responsibility relating to the Breaches of ‘Obligations Owed to the International Community as a Whole’: Suggestions for Avoiding the Obsolescence of Aggravated Responsibility” in Antonio Cassese, A. (ed.) Realizing Utopia: The Future of International Law (Oxford, 2012); Georges Abi-​Saab “The Uses of Article 19” (1999) 10 European Journal of International Law 339. See in this volume Helmut Philipp Aust “Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission” (Chapter 9) and Nilufer Oral “Environmental Protection as a Peremptory Norm of General International Law: Is it Time?” (Chapter 20). Draft Art 17 proposed in the Third Fitzmaurice Report (above note 3).

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Another category concerns, unsurprisingly, the planning of wars of aggression which is “illegal in se and void”. The third example, borrowed from Oppenheim’s International Law, would include a treaty whereby a State makes available its navy to another State for the latter to commit piracy. Interestingly, what we see in these examples is that, from the very beginning, there were two rationales that came out distinctly, an inter-​State one which underpins the prohibition of aggression and, arguably, that of piracy as a crime of “outlaws”, and a humanitarian one which underpins a range of norms of international humanitarian law and later human rights. Waldock, as the next Special Rapporteur, relied on Fitzmaurice’s considerations when introducing, in his second report of March-​June 1963, the concept of “jus cogens” in the proposed Draft Articles 1 and 13. The main point was, again, the need to reflect the stratification of different primary norms through a modulation of the law of treaties. In Waldock’s formulation (Draft Article 1(c)), jus cogens is defined as: a peremptory norm of general international law from which no derogation is permitted except upon a ground specifically sanctioned by general international law, and which may be modified or annulled only by a subsequent norm of general international law. In Waldock’s mind, the reference to a “ground specifically sanctioned by general international law” was intended to reserve grounds such as “self-​ defence” which are not prohibited by the primary norm.21 Waldock proposed a formulation of Draft Article 13, which specifically identified three cases in which a treaty would be null and void: a violation of the prohibition of the use of force, an international crime (characterised as such by international law) and, interestingly, treaties requiring “any act or omission in the suppression or punishment of which every State is required by international law to co-​operate”. Such specifications were eventually dropped in what became Article 53 of the Vienna Convention on the Law of Treaties but, for present purposes, it is useful to recall the rationales provided by Waldock: the view that in the last analysis there is no international public order —​ no rule from which States cannot at their own free will contract out —​has

21

Para. 2 of the Commentary to Draft 1 proposed in the Second Waldock Report (above note 3).

676 Viñuales become increasingly difficult to sustain. The law of the Charter concerning the use of force and the development —​however tentative —​of international criminal law presupposes the existence of an international public order containing rules having the character of jus cogens. Thus, there are two main rationales for the modulation that was eventually enshrined in Article 53, one inter-​State and another humanitarian. The daunting effort of modulating “rules about rules” to reflect the increasingly accepted stratification in rules of conduct made a decisive step during the 1960s. The weaving of this modulation into the law of treaties and of State responsibility was largely driven by the efforts to ascertain, indeed to reach agreement (within a broadening and increasingly divided international community) on the specific contours of the primary norms which embodied such stratification. As noted in the introduction, this stratification found expression in the 1966 International Covenants, the 1965 cerd and, of course, the frd. As discussed in the next section, the frd was and remained anchored in one of the rationales driving stratification, the inter-​State one. By contrast, since the 1960s, the main rationale driving the development of peremptory norms has been of a humanitarian character. The prohibition of the use of force remains the main exception to the latter assertion, and the examination of its relations with the right to self-​determination will provide a useful ground to show why the frd is more about inter-​State principles of international law than about peremptory norms. 3

Rationales for Stratification of Primary Rules in the Friendly Relations Declaration

3.1 Preliminary Observations As noted in the previous section, there is significant convergence on which rules of international law were deemed of overriding importance and therefore requiring a special treatment in the law of treaties (as benchmarks of validity) and that of State responsibility (special consequences for breach). The categories canvassed by Fitzmaurice in his 1958 report were, however, of a descriptive nature or, more specifically, they were casuistic: their starting-​point was a specific example (protection of prisoners of war, prohibition of wars of aggression, repression of piracy) followed by some limited elaboration of “why” (e.g. the protection of the individual). This casuistic or example-​driven approach

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has haunted international legal scholars and codification institutions to the very present day.22 My purpose here is not to attempt yet another explanation of “why” a certain norm belongs to the set we call peremptory norms.23 Instead, I would like to address a more specific issue, namely whether the inclusion in the authoritative statement of principles embodied by the frd is part of that explanation. To do so, one can follow two different approaches. One consists of tracking down the authorities on the basis of which a certain rule has been deemed to be peremptory and see if those authorities rely on the frd. Such an approach is best conducted in the context of the study of a specific norm. The other approach, which I will follow here, consists of ascertaining what, if anything, can lend overriding authority or particular importance to the rules stated in the frd. Several rationales can be (and were) advanced in the latter respect. 3.2 Article 103 of the UN Charter One rationale with deep implications referred to Article 103 of the UN Charter, according to which the obligations of the Charter prevail over other obligations undertaken by member States. This rationale raises a number of conceptual problems. Above all, for Article 103 to apply, the wording of the frd would have to be seen as a mere authentic interpretation of the UN Charter, which would remain the source of obligation, and it would bind only Member States, which was not the intention of some of the proponents of the process leading to the frd. Looking at the details of the process, it is immediately apparent that there were very different views on the nature of the “study” launched by Resolution 1815 (xvii), which were papered over in both the enabling resolutions and the final outcome. The compromise reached had several components, including placing the Charter at the centre of the process (as “the fundamental statement of [the relevant seven] principles”),24 expressly referring to the need to take into account the many developments since its adoption,25 specifically referring to both codification and progressive development under Article 13 of the Charter,26 and giving the entire exercise a scope not limited to Member

22 23 24 25 26

See the discussion in Fourth Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019), Section iv. See R. Kolb Théorie du ius cogens international: Essai de relecture du concept (puf, 2001). 1815 (xvii), at para 1; frd, preamble, recital 6, and operative paragraph 2. 1815 (xvii), preamble, recitals 3, 5 and 9; 2625 (xxv), frd, preamble, recitals 6 and 15. 1815 (xvii), para 2; 2625 (xxv), preamble, recital 1 and frd, preamble, recital 16.

678 Viñuales States. Among the expressions of this compromise, one paragraph of the frd must be singled out. It is the second operative paragraph, which states: Nothing in this Declaration shall be construed as prejudicing in any manner the provisions of the Charter or the rights and duties of Member States under the Charter or the rights of peoples under the Charter, taking into account the elaboration of these rights in this Declaration. Similar saving clauses were added as part of the formulation of three specific principles, namely the prohibition of the use of force, the peaceful settlement of disputes, and non-​intervention. These saving clauses, particularly the one in the second operative paragraph, attempt to strike a difficult balance between what colonial powers saw as the more favourable language of the Charter on self-​determination (which these countries considered as a statement of their “duties” as administrating powers but not as the recognition of a “right” of peoples) and the position of socialist and non-​aligned countries in favour of the recognition of a “right” to self-​ determination. The latter emphasised that such a right had been recognised in Resolution 1514 (xv) of 1960 (Declaration on the Granting of Independence to Colonial Countries and Peoples) (not expressly referenced in the frd) and in common Article 1 to the two 1966 International Covenants on Human Rights. To place the wording of the saving clause in context, at the time of signing the International Covenant on Civil and Political Rights, the UK had made the following declaration: the Government of the United Kingdom declare their understanding that, by virtue of Article 103 of the Charter of the United Nations, in the event of any conflict between their obligations under Article 1 of the Covenant and their obligations under the Charter (in particular, under Articles 1, 2 and 73 thereof) their obligations under the Charter shall prevail. This declaration, made on 16 September 1968, echoed the position of the UK representative in the Special Committee. For the UK, the impossibility of ascertaining exactly which entities enjoyed a “right” to self-​determination required that the concept of self-​determination be seen as a set of duties imposed by the Charter on administrating powers. In fact, from this perspective, granting a right and, particularly, legitimising the use of force in the struggle for self-​ determination, would render the obligations of administrating powers impossible to discharge.

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The use of Article 103 of the Charter to shield the position of colonial powers from the formulation of self-​determination included in resolution 1514 (xv), common Article 1 to the International Covenants, and the frd, suggests that the position of Article 103 with respect to the authority of the principles stated in the frd is, at the very least, ambiguous. While it may offer an argument in support of the higher value of the principles in the frd, it may also limit the rank of the principles, as formulated therein. In all events, Article 103 is but a mere conflict rule, inconsistency with which may lead to a breach of a norm but not to its invalidity ab initio. Therefore, it is a possible basis for the stratification of primary norms but not one capable of explaining the operation of peremptory norms. 3.3 Generally Applicable Principles The second stratification rationale that can be potentially derived from the frd concerns the general scope of this Declaration. The third and last operative paragraph of the frd states that [t]‌he principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles.27 In the last stages of the discussion, there had been other formulations, such as a reference to “important principles of international law” or to “guidelines”, but the Special Committee and subsequently the UN General Assembly retained the wording proposed by the final report of the Special Committee’s Drafting Committee, which used the term “basic principles”.28 Although this issue received far less attention than others (such as self-​ determination), it has deep roots. One such root concerns the organisation of the international system and the “basic” or “fundamental” (the French text uses the terms “principes fondamentaux”) character of principles (see the next section). The other touches upon the nature of the rule of law established by the UN Charter and, more specifically, whether it is a universally applicable order or merely a treaty-​based order relevant for the restricted (albeit expanding) community of its Member States. The aforementioned third operative

27 28

frd, operative paragraph 3. Report of the Drafting Committee (A/​a c.125/​L.86), at 13.

680 Viñuales paragraph of the frd clearly favours the former conception. This is also stated in the preamble of Resolution 2625 (xxv): Deeply convinced that the adoption of the Declaration on Principles of International Law concerning Friendly Relations and Co-​ operation among States in accordance with the Charter of the United Nations on the occasion of the twenty-​fifth anniversary of the United Nations would contribute to the strengthening of world peace and constitute a landmark in the development of international law and of relations among States, in promoting the rule of law among nations and particularly the universal application of the principles embodied in the Charter.29 It is also “coded” in the wording of both the preamble and the principles formulated in the frd itself through the use of the terms “all States” and “essential”. One finds this use in the preamble with respect to the principles of: (i) non-​ intervention (“essential condition”), the formulation of which in Article 2(7) of the UN Charter was restricted to the relations between the organisation and its member States; (ii) the prohibition of the use of force (“essential that all States shall refrain …”);30 and (iii) the peaceful settlement of international disputes (“essential that all States shall settle …”). In the formulation of the principles, the coding varies somewhat relying on terms such as “every State”, “all States” and/​or “no State” (see the prohibition of the use of force, the duty to settle disputes peacefully, the principle of non-​intervention, self-​determination, sovereign equality and good faith). The generality of the principles was important to expand the legal order created by the Charter to new States as well as to assert their applicability in spite of ideological cleavages. Such an extension had been effected through the adoption of normative resolutions by the UN General Assembly, which in the 1960s came under the numerical control of newly independent and non-​ aligned countries. This “normative” struggle between the General Assembly and the Security Council, deadlocked as a result of the veto powers of the five permanent members, was also visible from the very beginning of the process. The preamble of Resolution 1815 (xvii) “recalled”, as a premise to the entire exercise, the UN General Assembly’s “authority to consider the general principles of co-​operation in the maintenance of international peace and security”. The frd itself “smuggles” into the content of the principles the general

29 30

Emphasis added in the last sentence. See also Resolution 1815 (xvii), preamble, recital 8.

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statements made through previous normative resolutions adopted by the UN General Assembly. Recital fifteen of the frd’s preamble refers, indeed, to “the provisions of the Charter as a whole and taking into account the role of relevant resolutions adopted by the competent organs of the United Nations relating to the content of the principles” (emphasis added). This reference is even brought within the wording of the saving clause of the second operative paragraph, as a sort of safeguard against the saving clause: Nothing in this Declaration shall be construed as prejudicing in any manner the provisions of the Charter or the rights and duties of Member States under the Charter or the rights of peoples under the Charter, taking into account the elaboration of these rights in this Declaration. Thus, generality was a way of expanding the scope of the principles as stated in the UN Charter. Their expansion to all, including “new” States was achieved in exchange for their understanding through the lenses of the normative resolutions subsequently adopted by the UN General Assembly under the numerical dominance of these States. Their universal vocation clearly emphasises their “public law” character. Rather than contractually agreed obligations of a treaty-​based community, these principles were now presented as generally applicable. But this type of stratification does not necessarily signal the “peremptory” character of a norm, understood as the impossibility to derogate from it by treaty. As discussed next, the other possible rationale for stratification that can be derived from the “basic” character of principles is also different from those explaining peremptory norms. 3.4 “Basic” or “Fundamental” Principles? The term “basic” is used twice in the text of the frd. First, in the preamble, to reaffirm “the basic importance of sovereign equality”. Then, in the third operative paragraph to “declar[e]‌… that: [t]he principles of the Charter which are embodied in this Declaration constitute basic principles of international law”. Aside from the general application of the principles, the term “basic” emphasises the “fundamental” character of these principles, without which the international system would not be the one we know. For example, a global empire would be incompatible with the recognition of sovereign equality. Similarly, a system based on “spheres” where some States recognise themselves as equally sovereign, but they do not recognise other political units as such (at the extreme, they see them as terrae nullius) would be different from the present system. In the Weltanschauung of the frd, even after factoring in the

682 Viñuales East-​West ideological cleavages and the North-​South chasm, international law flows from the basic premise of sovereign States. This understanding is more clearly conveyed by the wording used in the French version of the frd, both in the preamble and the third operative paragraph. The preamble refers to the “importance fondamentale de l’égalité souveraine” and the third operative paragraph speaks of “principes fondamentaux du droit international”. The term “fondamental” could be rendered by the term “foundational”, if the emphasis is placed on the positioning of a principle at the foundations or at the basis of a system, or by the term “fundamental”, which allows for both the previous meaning as well as for an emphasis on the “importance” of the principle, whatever its positioning. This nuance may appear to be, at first sight, of little interest, but on closer inspection it encapsulates two different rationales for stratification with different legal implications. The first would be derived from the positioning of a principle. Clearly, principles such as sovereign equality and good faith are not only fundamental as a result of their importance but also foundational because the current international order could not exist without them. However, their foundational character does not make them, as such, non-​derogable. Derogations to sovereignty are commonplace, and they are seen as part of the very exercise of sovereignty (the ability of a State to bind itself). For good faith, the question is more complex, because its operation is different from that of other principles. Although the prohibition of abuse of right may not be excluded in the abstract, a conduct that would normally constitute an abuse of right may be condoned and made acceptable by treaty. The second rationale would result from the importance of a principle, irrespective of its positioning within the architecture of the system. An international system can exist and, up until 1945 did indeed exist, where the use of force is lawful as a matter of principle. Yet, due to the risks that such use of force entails for the maintenance of international peace and security, i.e. due to the purpose of maintaining peace, the use of force is prohibited. Such a principle is certainly fundamental as a result of its importance. It is also “foundational” from the perspective of the definition of the post-​1945 international legal order. But it is less “foundational” than sovereign equality for the structure of international law. At this point, the question that arises is which of these two rationales underpins the frd. The answer is: both of them, but clearly not to the same extent. The use of the term “basic” in the English (and Spanish) wording of the third operative paragraph, and its iteration in the wording of the preamble regarding sovereign equality, suggest that it is the “foundational” rationale that provided the centre of gravity. In fact, the “fundamental” character of a principle

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such as the prohibition of the use of force is additional to its “foundational” character. The two rationales for stratification may come together or not. The main difficulty is, of course, to determine which principle has which character and with what implications. That, in turn, is a principle-​specific inquiry. From the perspective of the peremptory character of a norm, the key consideration is to ascertain what makes a principle fundamental. The foundational character of a principle may have such an effect but it is not a requirement. Moreover, even when a principle is deemed fundamental, that is only one step towards being a peremptory norm. All in all, the conclusion is, again, that the rationales for stratification (the “basic” or “foundational” character of the principles and, to a lesser extent, their “fundamental” character) cannot explain, as such, the characterisation of a norm as peremptory. 3.5 “Inter-​State” vs “Humanitarian” Rationales If the stratification rationales reviewed in the previous sections cannot, as such, explain why a given rule or principle is a peremptory norm, then, the remaining inquiry is to assess whether the rationales given to support such character (as initially sketched by Fitzmaurice in his third report and taken up by Waldock in this second one) find expression in the frd. The answer to this question is, as before, nuanced but, broadly speaking, it is mainly the inter-​ State rationale underpinning the peremptory character of the prohibition of the use of force that finds clear expression in the frd. The humanitarian rationale is dealt with only in passing, under the principles of co-​operation and self-​determination, and it remains subordinated to the inter-​State rationale. Let me elaborate on this point in some more detail. The maintenance of international peace is a pervasive goal in the frd. Out of the seventeen recitals in the frd’s preamble, the maintenance of “international peace” is expressly stated in five, and implicit in several others (which refer to the need to refrain from using force or intervening or, still, to the purposes of the United Nations). The prohibition of the use of the force is the first principle stated by the frd, and it was also the first principle of which the Special Committee was requested to undertake the study by resolution 1815 (xvii). As noted earlier, when in 1960 the criticism against the ilc sparked the idea of studying the principles governing the friendly relations among States, the failure to define the crime of aggression was at the heart of the debate. It was also the main example provided in the 1962 ilc Sub-​Committee’s report which reframed the work on State responsibility, as well as in the introduction by Fitzmaurice in 1958 and then Waldock in 1963 of jus cogens in the ilc work on the law of treaties. And it is still the first example of a widely recognised peremptory norm of international law in the Draft Conclusions on Peremptory

684 Viñuales Norms of General International Law (Jus Cogens) adopted by the ilc on first reading in August 2019.31 The Commentary to Draft Conclusion 23 refers back to the work of the ilc on State responsibility, which as early as 1966 had recognised the prohibition of aggression as a “a conspicuous example of a rule in international law having the character of jus cogens”.32 Given the interconnections among the processes leading to the frd and the stratification introduced in the law of State responsibility and the law of treaties, one can conclude that the frd process contributed to the recognition of the peremptory character of the prohibition of the use of force. But it did so not by providing a stratification rationale, as that rationale was already associated with the norm; rather, it did so by promoting the fleshing out of the legal consequences of such stratification in the two main sets of “rules about rules”, the law of treaties and the law of State responsibility. By contrast, the frd’s contribution to the other rationale underpinning the recognition of peremptory norms, that arising from human dignity, is more limited. The frd is an inter-​State instrument by design. It focuses on the relations “among States”. Human rights are envisaged from this inter-​State prism. First and foremost, they are not mentioned as a stand-​alone principle. They appear in the preamble and in two principles, the duty to co-​operate and self-​determination. The reference in the preamble mentions human rights to describe the type of international peace and security aimed for by the principles. The reference in the context of the duty to co-​operate presents human rights as one of the purposes of co-​operation, after having stated the maintenance of international peace and security. This approach echoes Article 1 of the UN Charter, which identifies these two purposes in paragraphs one and three. The formulation of the principle of self-​determination includes two references. The first states that “subjection of peoples to alien subjugation, domination and exploitation constitutes … a denial of fundamental human rights”. The second states that “every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter”. Ostensibly, none of these references is clearly drafted from the right-​holder perspective but only from that of the duty-​bearer, States. The first mention in the context of self-​determination is intended to characterise the denial of self-​determination as also a denial of human rights. This reference should be appraised in the 31 32

Draft Conclusion 23 of the Draft Articles on Peremptory of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session General Assembly Official Records, (A/​74/​10), Chapter v. Id., Para 5 of the Commentary to Draft Conclusion 23.

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light of the difficult and protracted negotiations that led to the adoption of the two 1966 International Covenants, and the inclusion in their common Article 1 of the right to self-​determination. Indeed, self-​determination started to be considered by the Special Committee in 1966, and the work leading to the International Covenants was therefore very fresh in the minds of delegates. Yet, like the other references, the formulation retained in the frd is specifically intended to characterise the conduct of States. This inter-​State focus does not exclude the relevance of such characterisations to buttress the humanitarian rationale of stratification, but it makes clear that the frd is a statement of the principles governing States or “peoples” soon-​to-​be States. Indeed, for “peoples”, there is a clear assertion of a right from the perspective of the right-​ holder: “all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”. To the limited extent that the humanitarian rationale for stratification permeates the frd, its reach remains subject to the inter-​State rationale. This can be derived from one of the most debated issues of the entire process leading to the frd, namely the framing of forcible action between a State and a people in its struggle for independence. On one aspect of this question, a normative agreement could be reached, namely that “[e]‌very State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-​determination and freedom and independence”. Beyond this level, the disagreement was too profound for a clear stance to be taken. The fault-​line of this disagreement conveys the priority accorded to the inter-​State rationale underpinning the prohibition of the use of force over the humanitarian rationale permeating the formulation of self-​determination in the frd. Indeed, even accepting that the “subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter”, the frd stops short of recognising peoples’ right to use force in self-​defence and, above all, for third States to assist them through the use of force. This much debated issue was resolved by a combination of potentially inconsistent assertions in different paragraphs. One of them recognises that [i]‌ n their actions against, and resistance to, such forcible action (from a colonial power) in pursuit of the exercise of their right to self-​ determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.’ (emphasis added)

686 Viñuales The characterisation of the support that peoples struggling for self-​ determination are entitled to receive subjects such support to its “accordance with the purposes and principles of the Charter”, a way of restating the maintenance of international peace and security and the prohibition of the use of force. The prohibition for third States to use force under the guise of assistance to a people struggling for self-​determination is further strengthened by the last two paragraphs: Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-​determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. The wording remains ambiguous, but the priority of the inter-​State rationale over the humanitarian one is clear enough, even in this extreme case. 4

Diverging Pathways

The frd is, by design, an inter-​State instrument, which promoted the stratification of primary norms based on a number of essentially inter-​State rationales, whether those derived from Article 103 of the UN Charter, or the generally applicable scope of the frd’s principles, or their “basic” or “foundational” character, or the paramount role of the maintenance of international peace and security. To the extent that the humanitarian rationale for stratification permeated the frd, it only did so to a limited and controlled extent. By contrast, the rationale that has driven the development of jus cogens since the 1960s is of a clearly humanitarian nature. With the, admittedly major, exception of the prohibition of the use of force and, more specifically, of wars of aggression, the other six or perhaps seven (out of eight) peremptory norms tentatively identified in the ilc Draft Conclusions of 2019 are all based on a humanitarian rationale. These are: the prohibition of genocide, the prohibition

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of crimes against humanity, the basic rules of international humanitarian law, the prohibition of racial discrimination and apartheid, the prohibition of slavery, the prohibition of torture, and the right to self-​determination. The examples listed are only, as Draft Conclusion 23 expressly notes, a “ [n]‌on-​exhaustive list”. But the concentration of examples around the humanitarian rationale is nevertheless striking. The commentary to Draft Conclusion 23 specifically mentions that all the examples selected are derived from the previous work of the ilc. Interestingly, with only a few exceptions, the main source for the prior recognition by the ilc of the peremptory character of these norms is the ilc’s work on State responsibility. The ilc also referred to the Report of the Study Group on fragmentation for confirmation purposes and, in some cases, to the work on the law of treaties or that on crimes against humanity. For present purposes, this reliance is noteworthy due to the common origin of the stratification sought through the reformulation of the work on State responsibility in 1963 and the frd process. As noted earlier in this chapter, the push for stratification is shared by these two (and other) processes, but the stratification rationales have clearly diverged over time. For a present-​day observer, despite their common origins in the stratification of primary rules and subsequent modulation of “rules about rules” in the 1960s, the pathways followed, on the one hand, by the frd and, on the other hand, by the recognition of peremptory norms, seem to be drifting increasingly apart from one another. The inter-​State logic underpinning the frd is ill-​suited to ascribe peremptory value to a norm. There is, of course, the prohibition of the use of force, an eminently inter-​State rule, which is shared by both the frd and jus cogens. There is also self-​determination in the frd, which was in many ways an effort to incorporate an extraneous element, a “right” of “peoples”, into an inter-​State mould. But the humanitarian rationale seems to be a better predictor of whether a norm can be deemed to be of peremptory nature. Even the prohibition of the use of force could be seen from the perspective of a crime of aggression, as suggested by Draft Conclusion 23. This implicit preference for a humanitarian explanation may also explain why other earlier examples, such as the piracy illustration that Fitzmaurice had borrowed from Oppenheim’s International Law or, closer to us, a norm such as the principle of prevention of significant environmental harm, have struggled so far to be recognised as part of peremptory norms.33 Of course, the 33

On the protection of the environment, see in this volume Oral (above note 19).

688 Viñuales list suggested by the ilc is non-​exhaustive. Moreover, new peremptory norms may also arise. Yet, for the reasons outlined in this chapter, it is unlikely that frd may be the source for such unlisted or new norms to be deemed part of jus cogens.

Chapter 24

The Right to Self-​Determination and Peremptory Norms Ki-​Gab Park 1

Introduction

The notion of “self-​determination” was initially postulated as a political concept emphasizing the responsibility of the government to the people.1 The development of the notion can be traced back to the policy of the leaders of the French Revolution contemplating annexation of territory to France only after a plebiscite (doctrine of popular sovereignty) and to the US Declaration of Independence.2 The notion of self-​determination further evolved when it was espoused by the socialist movement and the Bolshevik Revolution.3 The term “self-​determination” was formally employed for the first time in public in an address delivered by US President Wilson, where it was articulated as one of his Fourteen Points (1918).4 Although the concept has become an important part of political thought since that time, self-​determination was 1 Regarding the historical evolution of self-​ determination, see Antonio Cassese Self-​ Determination of Peoples: A Legal Appraisal (Cambridge, 1995), at 11–​33; Elizabeth Rodríguez-​ Santiago “The Evolution of Self-​Determination of Peoples in International Law” in Fernando R.Tesón (ed.) The Theory of Self-​Determination (Cambridge, 2016), at 202–​217. 2 Edward McWhinney Self-​Determination of Peoples and Plural-​Ethnic States in Contemporary International Law: Failed States, Nation-​building and the Alternative, Federal Option (Martinus Nijhoff, 2007), at 1. 3 Antonio Cassese (above note 1), at 14–​19. Lenin and other Soviet leaders insisted on the right of self-​determination as a general criterion for the liberation of peoples. Admittedly they were more interested in the self-​determination of the working class in each State than in the self-​determination of populations in their entirety; but despite the subordinated position they accorded to the principle, they espoused self-​determination as an anti-​colonial postulate, and from there the concept gradually developed into a general principle of international law. 4 On President Wilson’s 4th of July 1918 Speech in Mount Vernon, Wilson stated that, “the settlement of every question, whether it be of territory or sovereignty, of, economic arrangements, or of political relationship, must be made on the basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery.” See McWhinney (above note 2).

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_025

690 Park not yet considered a rule of international law in the early twentieth century.5 For instance, the International Commission of Jurists in 1920, deliberating on the Åland Islands question, considered self-​determination to be a political principle and not “une des règles positives du droit des gens.”6 The Commission further considered that self-​determination would violate State sovereignty and endanger political stability in a way that was contrary to the interests of the international community.7 The switch from a concept of national self-​determination to a somewhat subtler and more nuanced concept of peoples’ self-​determination would come much later –​after World War ii.8 During that war, the principle of self-​determination was invoked on many occasions, for example in the Atlantic Charter (1941),9 and again restated in the Declaration by United Nations (1942) and the Moscow Declaration (1943). In the era of the UN, and as articulated in its Charter,10 the concept of self-​ determination has evolved as rooted in human dignity aligned with the promotion of democracy and human rights.11 However, “the right to self-​determination 5 6

7

8 9

10 11

Hurst Hannum Autonomy, Sovereignty, and Self-​determination: The Accommodation of Conflicting Rights (University of Pennsylvania, 1990), at 28–​30. English translation, “one of the positive rules of the law of nations.” Rapport de la Commission Internationale de juristes chargee par le Conseil de la Societe des Nations de donner un avis consultatif sur certains aspects juridiques de la question des iles d’Aland, in La question des Iles d’Aland. Documents diplomatiques publies par le Ministere des Affaires Etrangeres (1920), at 68–​70; Martti Koskenniemi “National Self-​Determination Today: Problems of Legal Theory and Practice” (1994) 43 International & Comparative Law Quarterly 241, at 246. In the Minutes of the Fourteenth Meeting of the Council, protesting the decision of the Commission and the resolution of the Council, the Swedish Government stated their hope that the Commission and the Council “would have favoured a solution of the Åaland question in conformity with the principle of self-​determination, which, although not recognized as a part of international law, has received so wide an application in the formation of the New Europe.” See Decision of the Council of the League of Nations on the Åland Islands, Including Sweden’s Protest in the “Minutes of the Fourteenth Meeting of the Council, June 24th” (1921) 2 League of Nations Official Journal 697, 700. McWhinney (above note 2), at 2. Joint Declaration of the President of the United States of America and the Prime Minister of the United Kingdom of Great Britain and Northern Ireland dated 14 August 1941, known as the Atlantic Charter. Principle 2: “No territorial changes that do not accord with the freely expressed wishes of the peoples concerned”; Principle 3: “The right of all peoples to choose the form of government under which they will live should be respected”; “Sovereign rights and self-​government restored to those who have been forcibly deprived of them.” Arts 1(2), 55, 73, and 76(b) of the 1945 Charter of the United Nations. Anne F. Bayefsky Self-​Determination in International Law: Quebec and Lessons Learned (Kluwer Law International, 2000), at 1.

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(of peoples)”12 per se has been considered too vague and complex to entail specific rights and obligations in international law. The UN Charter neither provided an answer to the question of what constitutes a “people” nor laid out any specific content of the principle. Under such circumstances, it could not realistically be interpreted, applied or implemented as a legal norm, and thus, has primarily served as a very strong moral and political force in guiding the organs of the UN in the exercise of their powers and functions. This situation, however, has changed over time. The right to self-​ determination has been confirmed, developed, and given more tangible form by State practice, international organizations and international and domestic jurisprudence. The International Court of Justice (icj) confirmed that the right to self-​determination has become part of modern international law, that “it is one of the essential principles of contemporary international law,” and has made it clear that “the right of peoples to self-​determination is today a right erga omnes.”13 The principle is recognized as a fundamental rule of international law, and the content of the right is settled, at least in the colonial context.14 Meanwhile, in 2019, the International Law Commission (ilc) adopted the text of the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens) on first reading, which includes “the right of self-​determination” in the non-​exhaustive list of jus cogens.15 The purpose of this Chapter is to identify whether the right to self-​ determination might be considered as a peremptory norm of general international law (jus cogens). There are various and even conflicting political views surrounding this issue. Therefore, the Chapter attempts to introduce a coherent legal framework which can apply across all the potentially competing claims and interests concerning the right to self-​determination. The Chapter consists of two main sections: identification of the right to self-​determination as customary international law, and identification of the right to self-​determination as jus cogens. To identify the current state of the right to self-​determination, the work refers mainly to State practice, actions taken by the UN and other 12 13 14 15

The terms “the right to self-​determination,” “the right of self-​determination,” and “the principle of self-​determination” will be used interchangeably in this Chapter. Case Concerning East Timor (Portugal v. Australia), icj Reports 1995, p. 90, at para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, icj Reports 2004, p. 136, at para. 88. Catriona Drew “The East Timor Story: International Law on Trial” (2001) 12 European Journal of International Law 651, at 658. Draft Conclusion 23 and the associated Annex of the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​first session, General Assembly Official Records (A/​74/​10) (2019).

692 Park international organizations, international and domestic jurisprudence, and a number of writings of commentators. 2

Identification of the Right to Self-​Determination as Customary International Law

As a preliminary step to identifying it as a norm of jus cogens, let us recall various materials that form the legal basis of the right to self-​determination as a rule or principle of customary international law. The term “right to self-​ determination” is employed alongside the “right of self-​determination” or “principle of self-​determination” without any legal difference in many international treaties.16 In the Charter of the UN, the principle of self-​determination is emphasized as one of the basic principles to be respected, together with the principle of equal rights, to develop friendly relations among nations as well as to create conditions of stability and well-​being which are necessary for peaceful and friendly relations among nations.17 The term “self-​government” is also referred to twice in the Charter in the context of non-​self-​governing territories and a basic objective of the trusteeship system: in Article 73 and Article 76(b).18 The fourth preamble of the 1969 Vienna Convention on the Law of Treaties (vclt) also noted the principle of self-​determination embodied in the Charter of the UN.19 The right of self-​determination is also embodied in multilateral conventions for protecting and promoting human rights, for example, the International Covenant on Economic, Social and Cultural Rights (icescr) and the International Covenant on Civil and Political Rights (iccpr). Article 1(1) of these two treaties restates the right of all peoples to self-​determination, and 16

17 18 19

In the UN Charter, self-​determination is specified (or perhaps already limited) by the addition of “peoples” to read “Self-​determination of peoples.” The EU Declaration of 1991 designates it as a “principle.” i.e.: “Principle of self-​determination.” Meanwhile, the General Comment on Article 1 of iccpr details it as the “right of peoples to self-​determination.” Art 1(2) and Article 55 of the UN Charter. Art 73 and Article 76(b) of the UN Charter. Para 4 of the Preamble of the 1969 Vienna Convention on the Law of Treaties. “Having in mind the principles of international law embodied in the Charter of the United Nations, such as the principles of the equal rights and self-​determination of peoples, of the sovereign equality and independence of all States, of non-​interference in the domestic affairs of States, of the prohibition of the threat or use of force and of universal respect for, and observance of, human rights and fundamental freedom for all[…].”

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further declares that all peoples are entitled to “freely determine their political status and freely pursue their economic, social and cultural development” by virtue of that right.20 Through inclusion in Article 1 of icescr and iccpr, the concept of self-​determination as a whole was characterized as a fundamental human right. The iccpr and icescr provide crucial evidence on the meaning and content of the principle of self-​determination.21 Respect for the self-​determination of peoples has also been emphasized by regional instruments and conventions which declare their commitment to the protection of self-​determination. For instance, the African Charter on Human and Peoples Rights, adopted in 1981, mentions “self-​determination” as “inalienable right.”22 The Arab Charter on Human Rights, adopted in 2004, also mentions “self-​determination” in Article 2,23 which is drafted similarly to Article 2 of the iccpr.24 Principle viii of the Helsinki Final Act of the Conference on Security and Cooperation in Europe (1975) recognized that self-​determination 20 21

22

23

24

Art 1(1) of iccpr and icescr provides that: “All peoples have the right of self-​ determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” However, some States made a declaration with subtle nuance to the right of self-​ determination. For example, the UK government formulated a declaration as follows: “the Government of the United Kingdom declare their understanding that, by virtue of Article 103 of the UN Charter, in the event of any conflict between their obligations under Article 1 of the Covenant and their obligations under the Charter (in particular, under Articles 1, 2 and 73 thereof) their obligations under the Charter shall prevail.” Indonesia made also a declaration on Article 1: “With reference to Article 1 of the International Covenant on Civil and Political Rights, the Government of the Republic of Indonesia declares that, consistent with the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, and the relevant paragraph of the Vienna Declaration and Program of Action of 1993, the words “the right of self-​determination” appearing in this article do not apply to a section of people within a sovereign independent state and cannot be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.” Art 20(1) of the African Charter on Human and Peoples Rights. “All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-​ determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.” Article 2 of the 2004 Arab Charter on Human Rights. “All peoples have the right of self-​ determination and control over their natural wealth and resources and, accordingly, have the right to freely determine the form of their political structure and to freely pursue their economic, social and cultural development.” 2004 Arab Charter on Human Rights, Translation by Dr. Mohammed Amin Al-​Midani and Mathilde Cabanettes, Revised by Professor Susan M. Akram (2006) 24 Boston University International Law Journal 147, at 148.

694 Park is applicable beyond the colonial context.25 Further, the Preamble to the European Community’s Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union of 1991 affirms that “the European Community and its Member States confirm their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-​determination. …”26 The Preamble to the Treaty on the Final Settlement with respect to Germany of 1990 provides that “German people, freely exercising their right of self-​determination, have expressed their will to bring about the unity of Germany as a State.”27 Let us turn now to resolutions adopted by international organizations, and especially the UN. The relevant UN General Assembly resolutions include the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960);28 Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 (e) of the Charter (1960);29 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty (1965);30; Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970);31 and United Nations Declaration on the 25

26 27 28

29 30

31

Helsinki Final Act, Questions relating to Security in Europe, 1. (a) Declaration on Principles Guiding Relations between Participating States, vii. Equal rights and self-​determination of peoples, para.2: “By virtue of the principle of equal rights and self-​determination of peoples, all peoples have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish political, economic, social and cultural development.” 1991 Declaration on Yugoslavia and on the Guidelines on the Recognition of New States. 1990 Preamble of the Treaty on the Final Settlement with respect to Germany. UN General Assembly Resolution 1514(xv) (A/​Res/​1514(xv)) (1960), adopted by vote 89-​ 0-​9. See especially paras. 1 and 2. “… proclaims the necessity of bringing to a speedy and unconditional end colonialism … and to this end declares that … all peoples have the right to self-​determination.” The icj considered the Declaration as a “further important stage” by which the principle of self-​determination is applicable to all peoples and territories which have not yet attained independence. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, 31, at para. 52. UN General Assembly Resolution 1541(xv) (A/​Res/​1541(xv)) (1960), adopted by vote 69-​2-​21. UN General Assembly Resolution 2131(xx) (A/​Res/​2131(xx)) (1965), adopted by vote 109-​ 0-​1. “Recognizing that, in fulfilment of the principle of self-​determination, the General Assembly, … in resolution 1514 (xv) …, stated its conviction that all peoples have an inalienable right to complete freedom.” UN General Assembly Resolution 2625(xxv) (A/​Res/​2625(xxv)) (1970), adopted without vote. The Preamble stated, “Convinced that the principle of equal rights and

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Rights of Indigenous Peoples (2007).32 Particularly salient among these, in this context, is the 1960 Declaration Granting Independence to Colonial Countries and Peoples which helped transform the principle of self-​determination into a legal right for non-​self-​governing peoples, and the 1970 Declaration on Friendly Relations which crystalized the growing consensus on the extension of self-​ determination to other areas.33 Emphasis on the right of self-​determination may also be inferred from several other UN documents, including the report of the UN Secretary-​General Boutros Boutros-​Ghali entitled An Agenda for Peace (1992), which stated that: The sovereignty, territorial integrity and independence of States within the established international system, and the principle of self-​ determination for peoples, both of great value and importance, must not be permitted to work against each other in the period ahead.34 Reference to the right to self-​determination can be found in a number of judgments and Advisory Opinions of the icj, i.e., judgments of the Frontier Dispute case (Burkina Faso/​Mali) (1986)35 and the East Timor case (1995),36 and

32

33 34 35 36

self-​determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among States. …” and under the title of the Principle of equal rights and self-​determination of peoples, at para 2: “Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-​determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, … .” On the Friendly Relations Declaration and jus cogens see, in this volume, Jorge Viñuales “The Friendly Relations Declaration and Peremptory Norms” (Chapter 23). UN General Assembly Resolution 61/​295 (A/​Res/​61/​295) (2007), adopted by vote 143-​4-​ 11. Article 3: “Indigenous peoples have the right to elf-​determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 4: Indigenous peoples, in exercising their right to self-​ determination, have the right to autonomy or self-​government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” Cassese (above note 1), at 70. An Agenda for Peace: Preventive diplomacy, peacemaking and peace-​keeping, Report of the Secretary General, General Assembly Official Records (A/​47/​277) (1992), at para. 19. Case concerning the Frontier Dispute (Burkina Faso /​Mali), icj Reports 1986, p. 554. East Timor case (above note 13).

696 Park advisory opinions on Namibia (South West Africa) (1970),37 Western Sahara (1975),38 Wall (2004),39 Kosovo (2010),40 and Chagos (2019).41 These cases can be categorised into three different types according to the evaluation of the right to self-​determination. In the first of these categories, the icj confirms self-​determination as a principle of international law, especially under the UN Charter. In its Advisory Opinion on Namibia, the Court stated that self-​determination as specified in the UN Charter could be applied to all non-​self-​governing territories, and that to allege a limit to the exercise of self-​determination is to deny the principle under the UN Charter.42 In its Advisory Opinion on Western Sahara, the Court recited what it had said in Namibia, and in addition reaffirmed the right of all peoples to vote, as mentioned in the unga Resolution 1514(xv), as well as the obligation of all States to realize self-​determination mentioned in the unga Resolution 2625(xxv).43 The Court also emphasized that “every country has a duty to assist the United Nations in realizing the principles of equal rights and people’s self-​determination in accordance with the provisions of the Charter and in fulfilling its mandates.”44 In the second category, the icj recognizes certain obligations erga omnes. As noted, in its judgment in the East Timor case, the Court clarified the nature of the people’s right to self-​determination. The Court declared the people’s right to self-​determination as “one of the essential principles of contemporary international law.”45 The Court accepted Portugal’s assertion that the right of 37 38

39 40 41

42 43 44 45

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, icj Reports 1971, p. 16. Western Sahara, Advisory Opinion, icj Reports 1975, p. 12. In 1966 the United Nations General Assembly invited Spain, Morocco and Mauritania to negotiations aimed at realizing decolonization based on nomadic national self-​determination. Morocco and Mauritania each claimed historical title in the region. As a result, icj was asked to provide recommendations to resolve this issue. Wall Advisory Opinion (above note 13). Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, icj Reports 2010, p. 403. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, icj Reports 2019, p. 95. For a discussion of the the Chagos Advisory Opinion in this volume see Julia Sebutinde “Is the Right to Self-​Determination Jus Cogens? Reflections on the Chagos Advisory Opinion” (Chapter 15). “… the subsequent development of international law in regard to non-​self-​governing territories, as enshrined in the Charter of the United Nations, made the principle of self-​ determination applicable to all of them.” Namibia Opinion (above note 37), at paras. 52-​53. Western Sahara, Advisory Opinion (above note 38), at 31–​33. Id. at 25. East Timor case (above note 13), at para. 29.

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self-​determination has an erga omnes character, while at the same time asserting that “East Timor remains a non-​self-​governing territory, and its people has the right to self-​determination.”46 The Court stated that the right to self-​ determination, and its implementation, has a general nature and cannot be violated. The principle of self-​determination is described as one of the core principles of modern international law. In the Wall Advisory Opinion, the Court reconfirmed that “the right of peoples to self-​determination is today a right erga omnes” as already mentioned in the East Timor case.47 In its Advisory Opinion on Chagos, the Court further refined that “… respect for the right to self-​determination is an obligation erga omnes” and that “all States have a legal interest in protecting that right.”48 Also in the Wall Advisory Opinion, the Court went further to indicate legal consequences of violation of such rights and obligations: ..the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.49 In the Chagos Advisory Opinion, the Court found that the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-​determination, and that the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State. The Court thus concluded that: the United Kingdom has an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States must co-​operate with the United Nations to complete the decolonization of Mauritius.50

46 47 48 49

50

Id. at para. 31. Wall Advisory Opinion (above note 13), at para. 88. Chagos Advisory Opinion (above note 41), at para. 180. Wall Advisory Opinion (above note 13), at para. 159. The Court continued to confirm that “[i]‌t is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-​determination is brought to an end.” Chagos Advisory Opinion (above note 41), at para.182.

698 Park Finally, cases in the third category deal with the relationship between the right to self-​determination and other principles of international law. In its judgment in Frontier Dispute (Burkina Faso/​Mali), the Court examined the principle of uti possidetis and the principle of self-​determination of peoples. The Court found that: the essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-​determination of peoples.51 The Kosovo Advisory Opinion is a little different from other cases considered by the icj. The Court started by explaining that “during the second half of the twentieth century, the international law of self-​determination developed in such a way as to create a right to independence for the peoples of non-​self-​ governing territories and peoples subject to alien subjugation, domination and exploitation.”52 It then however identified the legal scope of the question as a matter of secession, as follows: whether, outside the context of non-​self-​governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-​determination confers upon part of the population of an existing State a right to separate from that State.53 Alongside the jurisprudence of the icj, relevant views on self-​determination may also be found in domestic jurisprudence and the work of international commissions. The Supreme Court of Canada discussed the right to self-​ determination in the context of the secession attempt of Quebec.54 The 51 52 53

54

Frontier Dispute (Burkina Faso/​Mali) (above note 35), at 567, at para. 25. Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, icj Reports 2010, 436, at para.79. Id. at para. 82. Concerning the Court’s non assessment of the existence of a right to self-​ determination of Kosovo and a possible remedial secession, see Elizabeth Rodríguez-​ Santiago “The Evolution of Self-​Determination of Peoples in International Law” in Fernando R. Tesón (ed.) The Theory of Self-​Determination (Cambridge, 2016), at 231–​237. The Supreme Court stated that: “International law expects that the right to self-​ determination will be exercised by peoples within the framework of existing sovereign States and consistently with the maintenance of the territorial integrity of those States. … There is no necessary incompatibility between the maintenance of the territorial integrity of existing States, including Canada, and the right of a ‘people’ to achieve a full measure of

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Arbitration Commission created by the Conference on Yugoslavia discussed the right to self-​determination in the context of dissolution of the Yugoslav Federation.55 Treaty-​based organs have also served as a vehicle for discussing and consolidating the right to self-​determination: for example, General Comments of the UN Human Rights Committee,56 and the decision rendered by the African Commission on Human Rights and Peoples’ Rights established by the African Charter on Human Rights and Peoples’ Rights,57 have both opined on the right to self-​determination. The principle of the right to self-​determination is thus solidly confirmed in all major materials of international law, whether they be international conventions, State practice, judicial decisions, resolutions or the teachings of publicists. The basic approach to identification of customary international law is to discover two constituent elements, namely general practice and opinio juris (acceptance of that practice as law). The text of the Conclusions on Identification of Customary International Law adopted by the UN International Law Commission (ilc) on the second reading in 2018 also confirms two constituent elements approach in Conclusion 2, which confirmed: “To determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice and that is accepted as law (opinio juris).”58 The pronouncements put forward by States in the course

55

56 57

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self-​determination.” Reference re Secession of Quebec, 20 August 1998, 2 Canada Supreme Court Reports 217. The Arbitration Commission dealt with a question raised by the Republic of Serbia: “Does the Serbian population in Croatia and Bosnia-​Hercegovina, as one of the constituent peoples of Yugoslavia, have the right to self-​determination?” The Commission took note of the aide-​mémoires, observations and other materials submitted by the Republics of Bosnia-​ Hercegovina, Croatia, Macedonia, Montenegro, Slovenia and Servia, by the Presidency of the Socialist Federal Republic of Yugoslavia (sfry) and by the “Assembly of the Serbian People of Bosnia-​Hercegovina” Opinion No.2 (1992). General Comment No.12 on Article 1 (Right to self-​determination), Human Rights Committee, Twenty-​first session (hri/​g en/​1/​Rev.1) (1984). Kevin Mgwanga Gunme et al v Cameroon, Communication of the African Commission on Human and Peoples’ Rights, 27 May 2009. The Complainants are 14 individuals who brought the communication on their behalf, and on behalf of the people of Southern Cameroon against the Republic of Cameroon, a State Party to the African Charter on Human and Peoples’ Rights. See Conclusion 6(2) of the Draft Conclusions on Identification of Customary International Law, Report of the International Law Commission, Seventieth Session, General Assembly Official Records (A/​73/​10) (2018), which specified that the forms of State practice include, but are not limited to: “diplomatic acts and correspondence; conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference; conduct in connection with treaties; executive conduct, including operational conduct “on the ground”; legislative and administrative acts; and decisions of national

700 Park of concluding and adopting such materials comprise significant elements of State practice, while the rulings of international courts combine with the statements of individual States to largely constitute opinio juris in the matter.59 Considered within this context, there can be today no doubt that the right to self-​determination has assumed its place as a rule of customary international law.60 This raises the question whether the right to self-​determination as a rule or principle of customary international law might be considered as a norm of jus cogens. 3

Identification of the Right to Self-​determination as a Norm of Jus Cogens

As mentioned, the Annex to the Draft Conclusions on Peremptory Norms provides a non-​exhaustive list of norms that the ilc has previously referred to as having that status, and “the right of self-​determination” is explicitly noted on this list.61 It is certain that the ilc has at least once referred to “the right of self-​determination” as having the status of jus cogens.62 In paragraph 33 of

59 60

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courts.” See also Conclusion 10(2) which articulated the forms of evidence of acceptance as law (opinio juris) to include, but are not limited to: “public statement made on behalf of States; official publications; government legal opinions; diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference.” Cassese (above note 1), at 70. “The Court is of the view that, while its determination of the applicable law must focus on the period from 1965 to 1968, this will not prevent it, particularly when customary rules are at issue, from considering the evolution of the law on self-​determination since the adoption of the Charter of the United Nations and of Resolution 1514 (xv)() entitled “Declaration on the Granting of Independence to Colonial Countries and Peoples.” Indeed, State practice and opinio juris, i.e. the acceptance of that practice as law (Article 38 of the Statute of the Court), are consolidated and confirmed gradually over time.” Chagos Advisory Opinion (above note 41), at para.142. The most widely recognized examples of jus cogens are: (a) the prohibition of aggression; (b) the prohibition of genocide; (c) the prohibition of crimes against humanity; (d) the basic rules of international humanitarian law; (e) the prohibition of racial discrimination and apartheid; (f) the prohibition of slavery; (g) the prohibition of torture; (h) the right of self-​determination. Annex to the Draft Conclusions on Peremptory Norms (above note 15). For example, Commentary to Article 26 and para 5 of the Commentary to article 40 of the Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001); Report of the Study Group on Fragmentation of International Law (A/​c n.4/​L.682) (2006), at para. 374; para. 3 of the Commentary to

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the Conclusions of the Study Group on fragmentation of international law, the Commission referred to “the right to self-​determination” as one of the most frequently cited examples jus cogens norms, together with the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination, apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict.63 At this moment however it is not possible to predict whether the non-​exhaustive list of jus cogens in the Annex will be maintained when the ilc adopts the Draft Conclusions on the second reading. During the UN General Assembly Sixth Committee debates, the Mozambique delegate said, “[ j]‌us cogens norms included principles set out in the Charter of the United Nations such as the prohibition of the use of force between States and the right to self-​determination, as well as the prohibition of slavery, racial discrimination, torture and genocide.”64 In contrast, the Israeli delegate criticized, the Special Rapporteur on jus cogens for asserting “numerous times in his third report that the right of self-​determination was of a jus cogens character, whereas it was highly questionable whether the principle of self-​determination met the standards set out in article 53.”65 It seems that some States emphasized the importance of the right to self-​determination, whereas others questioned the decision to include it among examples of jus cogens.66 Such divergent positions can also be found among scholars. Many authors, including Marcelo G. Kohen and Robert Kolb, accept that “self-​determination” is a norm of jus cogens.67 Dire Tladi, the Special Rapporteur on the topic of jus

63 64 65 66 67

Draft Article 50 of the Draft Articles on the Law of Treaties, Report of the International Law Commission, Eighteenth Session, General Assembly Official Records (A/​6309/​ Rev.1) (1966); See also Annex to the Draft Conclusions on Peremptory Norms (above note 15), footnote 942. Para. 33 of the Conclusions of the Study Group on Fragmentation of International Law, Report of the International Law Commission, Fifty-​eight session, General Assembly Official Records (A/​61/​10) (2006). A/​C.6/​73/​s r.28 (2018), at para. 3. A/​C.6/​73/​s r.27 (2018), at para. 64. Topical Summary of the Discussions in the Sixth Committee of the General Assembly During its Seventy-​Fourth Session, General Assembly Official Record(A/​c n.4/​734) (2019), at para. 97. Marcelo G. Kohen, “Sur quelques vicissitudes du droit des peuples à disposer d’eux-​ mêmes” in Nicolas Angelet (ed.) Mélanges offerts à Jean Salmon : Droit du pouvoir, pouvoir du droit (Bruyland, 2007), at 964. (“On peut résumer ses traits marquants en affirmant que les titulaires du droit d’autodétermination sont les peuples, qu’ils peuvent l’invoquer erga omnes, que le principe se range parmi les règles du jus cogens, qu’il est applicable partout et non seulement dans les cas de domination coloniale ou étrangère, et qu’il comporte le droit du peuple concerné à déterminer son statut politique interne et international en toute liberté.”) Robert Kolb, “Conflits entre normes de jus cogens” in Nicolas

702 Park cogens, also stated that “the right to self-​determination is a classical norm of jus cogens whose peremptory status is virtually universally accepted.”68 However, other scholars like Thomas Weatherall consider that the insufficiency of the opinio juris sive necessitatis makes it hard to regard “self-​determination” as a peremptory norm. According to Thomas Weatherall, there are three weak points unlike other norms of jus cogens: (1) there is no obligation to prevent and to punish violations, (2) no sanction is imposed and (3) there is evidence to the contrary.69 To discuss this delicate question, it may be useful to follow the methodology employed by the ilc in the first reading of its topic on Peremptory Norms of General International Law(Jus cogens).. The main reason for invoking the Draft Conclusions on Peremptory Norms on first reading is that they contain useful and important criteria for identifying a norm of jus cogens: inter alia, differentiation in meaning between “acceptance and recognition” required for jus cogens and other norms of international law (paragraph 1 of Draft Conclusion 6: Acceptance and recognition),70 the high level of acceptance and recognition (Draft Conclusion 7: International community of States as a whole),71 the

68

69 70

71

Angelet (ed.), Mélanges offerts à Jean Salmon : Droit du pouvoir, pouvoir du droit (Bruyland, 2007), at 482 and 486. (“En effet, les examples qu’on donne le plus communément de ces norms (normes de jus cogens) sont l’interdiction du génocide, de la piraterie, de l’esclavage, de la traite, des crimes contre l’humanité ; la protection des droits fondamenaux de l’homme ; les normes fondamentales du droit international humanitaire ; le non-​recours à la force ; l’autodétermination des peuples ; les normes fondamentales de protection de l’environnement ; etc.”) See also Robert Kolb Peremptory International Law –​ Jus Cogens: A General Inventory (Hart Publishing, 2015), at 7. Fourth report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​727) (2019), at paras. 108 -​115, where the Special Rapporteur, in response to the view that the jus cogens status of self-​determination was “questionable,” analyses relevant practice of States in the context of multilateral instruments, resolutions adopted by the Security Council, treaty practice, international and domestic jurisprudence and writings in academia. Thomas Weatherall Jus Cogens –​International Law and Social Contract (Cambridge, 2015), at 250–​253. Draft Conclusions on Peremptory Norms (above note 15), Draft Conclusion 6 (Acceptance and recognition):“1. The requirement of “acceptance and recognition” as a criterion for identifying a peremptory norm of general international law (jus cogens) is distinct from acceptance and recognition as a norm of general international law.” Id. Draft Conclusion 7International community of States as a whole) :“1. … 2. Acceptance and recognition by a very large majority of States is required for the identification of a norm as a peremptory norm of general international law (jus cogens); acceptance and recognition by all States is not required.”

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non-​applicability of “persistent objector rule/​doctrine” to jus cogens (Draft Conclusion 14),72 amongst others. The ilc introduced a so-​called “two-​step approach” to identify a norm as jus cogens: namely, (a) the norm in question must be a norm of general international law; and (b) the norm must be 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 norm having the same character.73 In accordance with this approach, in order to affirm that the right to self-​determination has already became a norm of jus cogens, it will be necessary not only to verify its existence as a norm of general international law as this chapter has done in the previous section, but also to show sufficient and necessary evidence that the right to self-​determination is accepted and recognized by the international community as a norm from which no derogation is permitted. As Judge Weeramantry noted in his dissenting opinion on the East Timor case, the principle of self-​determination receives confirmation from all sources of international law; and the sources combine to generate cogent authority supportive of the right.74 The question instead is how much “cogent authority” must be established if a general international law is to be considered a norm jus cogens? According to Thirlway’s notion of “double legal opinion,” jus cogens norms are based on a double opinio juris: one addressing the legality and generality of the norm, and the other its peremptory character.75 In this context, a very high level of acceptance and recognition can be noted. Paragraph 2, Conclusion 7 of the Draft Conclusions provides the threshold for gaining peremptory status: it requires “a very large majority of States” but does not require unanimity or consensus.76 Therefore, the recognition and acceptance of the “overwhelming

72 73 74 75 76

Id. Draft Conclusion 14: “3. The persistent objector rule does not apply to peremptory norms of general international law (jus cogens).” Id. Draft Conclusion 4(Criteria for the identification of a peremptory norm of general international law (jus cogens)). See Dissenting opinion of Judge Weeramantry in East Timor case (above note 13), at 194. Hugh Thirlway “Concepts, Principles, Rules and Analogies: International and Municipal Legal Reasoning” (2002) 294 Recueil des cours de l’Academie de droit international de La Haye 265, at 401. Erika de Wet, “Jus Cogens and Obligations Erga Omnes” in Dinah Shelton (ed.) The Oxford Handbook of International Human Rights Law (Oxford, 2013), at 543,(“This threshold for gaining peremptory status is high, for although it does not require consensus among all states … it does require the acceptance of a large majority of states.”).

704 Park majority of States,” “virtually all States,” “substantially all States” or “the entire international community of States as a whole” might be necessary.77 Acceptance and recognition on the part of States may be found in the written statements submitted by States in the Chagos case, where States recognize expressly the jus cogens status of self-​determination: for example, Belize,78 Cyprus,79 Mauritius,80 Netherlands,81 and South Africa.82 Reflecting the views of its member States, the African Union also mentions that the right to self-​ determination has become a norm of jus cogens.83 By contrast, the remainder of States are silent on the normative status of the right to self-​determination, or

77

Para 6 of the Commentary to Draft Conclusion 7 of the Draft Conclusions on Peremptory Norms (above note 15). 78 Belize Written Statement before the icj (30 January 2018), at para. 2.1.: “The right to self-​ determination under customary international law is reflected in the Charter of the United Nations, in resolutions of the General Assembly of the United Nations, in other State practice, and in the jurisprudence of the Court. It is an erga omnes right and a peremptory norm of international law from which no derogation is permitted.” 79 Cyprus Written Statement before the icj (12 February 2018), at para.3: “the Republic of Cyprus holds the view that the international legal framework governing decolonization must be further clarified, inter alia due to the jus cogens character of the right of self-​ determination and the erga omnes nature of the obligations stemming from it.” and at para.26. “Matters pertaining to decolonization are proper subjects for an advisory opinion, given the critical role of the General Assembly in this process, the jus cogens nature of self-​determination, and the erga omnes nature of the obligations with respect to decolonization.” 80 Mauritius Written Statement before the icj (15 May 2018), at para. 3.44: “It is well-​ established that the right of self-​determination falls within the category of peremptory norms, or “fundamental principles”.” 81 The Netherlands Written Statement before the icj (27 February 2018), at para. 1.5: “According to the Kingdom of the Netherlands, the right of self-​determination of peoples is not exhausted by a one-​off exercise, but a permanent, continuing, universal and inalienable right with a peremptory character.; and para.4.10 “The Netherlands, in contrast to Germany, calls upon the Court to answer the second question in a complete manner, one that addresses the consequences for individual States.” It states that this is because, “given the peremptory character of the right of self-​determination, a serious breach of the right of self-​determination obliges all States not to recognize the situation created as a result of that breach and not to render aid or assistance in maintaining the situation created as a result of the serious breach of that right.” 82 South Africa Written Statement before the icj (1 March 2018), at para. 6: “The right to self-​determination is regarded as a jus cogens right, and the practice of States seen with the plethora of United Nations resolutions reinforce its importance as a contemporary issue in international relations and international law” and para 60: “In the view of South Africa, the foundation of decolonization is giving effect to the jus cogens right of peoples to self-​determination in accordance with the Declaration.” 83 African Union Written Statement before the icj (1 March 2018), at para.69.

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are reluctant to deal with the issue, such that one might wonder whether consensus exceeds the aforementioned threshold for peremptory status. However, the lack of explicit reference or support considering self-​determination as part of jus cogens does not necessarily signify against its normative status. The aforenoted legal materials demonstrate that the principle of self-​determination is regarded by States as fundamental and universal in international relations, to the extent that States would assume self-​determination to be non-​derogable.84 Let us turn to the jurisprudence of the icj on this matter. Decisions of international courts and tribunals, in particular of the icj, are stipulated in the Draft Conclusion 9 as subsidiary means for determining the peremptory character of norms of general international law.85 As the principal judicial organ of the UN, the icj’s position has paramount importance to verify the legal status of the right to self-​determination. As discussed in Section 2, the icj has recognized in various judgments and advisory opinions the existence of the right to self-​determination as customary international law, as well as the erga omnes nature of the right. The Court has however refrained from explicitly using the term jus cogens and remains cautious about the view that the right to self-​determination has been recognized as a norm of jus cogens. Such a position has been maintained until today, as reflected in the Chagos case.86 Hence, does the passive position held by the icj regarding use of the term “jus cogens” constitute an obstacle to recognizing the right to self-​determination as a norm of jus cogens? Although the icj’s judgment itself did not expressly indicate the term “jus cogens,” some individual opinions of the judges mentioned that the right to self-​determination is a norm of jus cogens. For example, in the East Timor case, Judge Skubiszewski stated that the right of peoples to self-​determination is part of jus cogens, and the international community cannot be indifferent to it.87 Judge Ranjeva also mentioned in his separate opinion that the right of peoples to self-​determination possesses “the characteristic of an absolute right 84 Cassese (above note 1), at 140; See also Russia Written Statement before the icj (27 Feb 2018), at para.6.: “The fundamental principles of contemporary international law are a cornerstone for just and equitable international relations, including the principle of equal rights and self-​determination of peoples.” 85 Draft Conclusion 9 of the Draft Conclusions on Peremptory Norms (above note 15) (Subsidiary means for the determination of the peremptory character of norms of general international law (jus cogens): reads “1. Decisions of international courts and tribunals, in particular of the International Court of Justice, are a subsidiary means for determining the peremptory character of norms of general international law (jus cogens).” 86 Chagos Advisory Opinion (above note 41), at para. 180. 87 Dissenting Opinion of Judge Skubiszewski in the East Timor case, at para.135.

706 Park erga omnes.”88 Judge Weeramantry even identified the main conflict in this case as “a clash between the peremptory norm of Australia’s permanent sovereignty over its natural resources and the peremptory norm of East Timor’s permanent sovereignty over its natural resources.”89 In the Chagos case, Judge Robinson contended that “the Court’s case law, State practice and opinio juris, and scholarly writing are sufficient to warrant characterizing the right to self-​determination as a norm of jus cogens […].”90 Meanwhile, Judge Sebutinde regretted that the Court did not admit that the right to self-​determination has become a norm of jus cogens: the Court fails in the Opinion to recognize that the right to self-​determination has evolved into a peremptory norm of international law (jus cogens), from which no derogation is permitted and the breach of which has consequences not just for the administering Power concerned, but also for all States.91 Some authors have interpreted that jus cogens is implied in the Court’s reference to erga omnes, and further argue that the whole approach taken by the Court, in particular with regard to the consequences of the violation of the right to self-​determination, suggests the Court’s understanding of the right as a jus cogens norm.92 Indeed, jus cogens are most often norms with an obligation erga omnes, which, because of their fundamental nature, call for a sanction that does not permit any degree of slippage or non-​respect. This means that that no violation of such norms should be left without legal consequence. Note that while all jus cogens norms have constituted obligations erga omnes, the reverse is not always the case.93 88 89 90 91 92

93

Id., Separate Opinion of Judge Ranjeva, at 129. Id., Dissenting Opinion of Judge Weeramantry, at 203. Separate Opinion of Judge Robinson in the Chagos Advisory Opinion (above note 41), at para.50. Id., Separate opinion of Judge Sebutinde, at para. 25. See for further explanation Sebutinde (above note 41). Rodríguez-​Santiago (above note 53), at 230, who observed that “[s]‌ome authors have interpreted that in the cases of East Timor and the Palestinian Wall, the jus cogens was implied in the Court’s reference to the erga omnes right. I would argue that it is not only the erga omnes reference, but the whole approach by the Court, and the severity with which it addressed the consequences of the violation of the self-​determination right in the Palestinian wall case, that suggests that the Court was under the understanding that it was dealing with a jus cogens norm.” . Regarding the relationship between jus cogens and obligations erga omnes, see Christian Tomuschat and Jean-​Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order: Jus Cogens and Obligation Erga Omnes (Brill, 2006).

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Even though a number of States consider the right to self-​determination as a jus cogens norm and several icj judges have, in their separate and dissenting opinions, affirmed the peremptory normative status of self-​determination, this does not constitute sufficient basis to identify the right to self-​determination as a norm jus cogens. As noted by Cassese, “the legal basis for transformation of self-​determination into jus cogens cannot of course be found in views –​however authoritative –​put forward by persons acting in their individual capacity.”94 Nonetheless, this does not mean that the right to self-​determination should remain as a rule of customary international law lacking peremptory status. If the right to self-​determination is considered only as a rule of customary international law and not as a norm jus cogens, at least two distinct aspects can be noted: the non-​applicability of the persistent objector rule or doctrine, and its overwhelming status when it conflicts with other norms from which no derogation is permitted.95 Paragraph 3 of Draft Conclusion 14 of the Draft Conclusions noted that “the persistent objector rule does not apply to peremptory norms of general international law (jus cogens).” In contrast, according to Conclusion 15 on Identification of Customary International Law of 2018, a rule of customary international law is not opposable to a State that has persistently objected to that rule of customary international law while it was in the process of formation, for as long as that State maintains its objection.96 In order to disperse unfavorable opinions against the right to self-​ determination as a norm of jus cogens, and to ensure that the right to self-​ determination is firmly anchored in that status, an in-​depth review of the following items is essential. Dire Tladi, the Special Rapporteur on peremptory norms, indeed noted in his report that the “more complex problem” is what constitutes the right to self-​determination: whether the right applies only in the context of decolonization and whether the circumstances in which the right applies would permit external self-​determination (secession) and, if so, under what circumstances.97 These concerns are closely related to the legal 94 95

96 97

Cassese (above note 1), at 135. However, Robert Kolb has a different perspective as follows: “the supplementary opinio juris cogentis (the opinion that a norm is not derogable) does not confer greater weight on that norm in relation to other ones; it just qualifies its mode of operation as not being subject to derogation.” Kolb (above note 67), at 67. See Draft Conclusion 15 of the Draft Conclusions on Identification of Customary international Law (above note 58), . See also the paras 8 to 10 of the Commentaries to Draft Conclusion 14 of the Draft Conclusions on Peremptory Norms (above note 15). Fourth Report of the Special Rapporteur on Peremptory Norms (above note 68), at para. 115.

708 Park status of the right to self-​determination in the post-​colonial era, namely possible claims and especially secession. In the Frontier Dispute case, the Court placed the principle of uti possidetis among the most important legal principles in international law.98 The Court weighed on the maintenance of the territorial status quo, referring to it as an undeniable fact, and stated that the consent of African states to uti possidestis had already been taken account of the principle of self-​determination of peoples.99 The Arbitration Commission created by the Conference on Yugoslavia further confirmed this in its Opinion No 2, when it recalled that, whatever the circumstances, “the right to self-​determination must not involve changes to existing frontiers,” and stated, “except where otherwise agreed, the former boundaries become frontiers protected by international law.”100 Emphasis on the territorial integrity of States flows to assume that self-​determination does not encompass an automatic right to secede except in the context of decolonization. However, different views, otherwise more contextualized approach, have been expressed by domestic courts and States. For example, the Canadian Supreme Court held: … even though the right to self-​determination will be exercised by peoples within the framework of existing sovereign States and consistently with the maintenance of the territorial integrity of those States. … Where this is not possible, in the exceptional circumstances … a right of secession may arise.101 In their written statements in the Kosovo case, Ireland and Norway expressed the view that the right to self-​determination also implies so-​called “remedial 98 99

Frontier Dispute (Burkina Faso /​Mali) (above note 35), at para. 26. Frontier Dispute (Burkina Faso /​Mali) (above note 35), at para. 25: “At first sight this principle [of uti possidetis] conflicts outright with another one, the right of peoples to self-​ determination. […] The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-​determination of peoples.” 100 Conference on Yugoslavia, Arbitration Commission: Opinions on questions arising from the dissolution of Yugoslavia, 11 January -​4 July 1992. As noted by Allain Pellet “stability does not mean intangibility.” Alain Pellet (1992) “The Opinions of the Badniter Arbitration Committee A Second Breath for the Self-​Determination of Peoples” 3 European Journal of International Law 178, at 180. 1 01 Reference re Secession of Quebec, Judgement of Supreme Court of Canada, 20 August 1998, at paras. 126 and 134.

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secession” in a situation of extreme necessity, namely in the case of gross or fundamental human rights abuses.102 As also noted by the Arbitration Commission, “the right to self-​determination serves to safeguard human rights. By virtue of that right every individual may choose to belong to whatever ethnic, religious or language community he or she wishes.”103 The right to self-​determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. Identified below are four aspects that require further clarification in order for the right to self-​determination to be anchored as a norm of jus cogens in the 21st century: procedural legality, holder of the right to self-​ determination, obligation upon States, distinction between internal and external self-​determination.104 (1) Procedural legality: Procedural legality should be assured in the exercise of the right to self-​determination. The right to self-​determination should be exercised in conformity with the provisions of the Charter of the United Nations. In its advisory opinion on Western Sahara, the icj stated that self-​determination refers to “the need to pay regard to the freely expressed will of peoples.”105 Thus, self-​determination can be achieved when there is sufficient attention accorded to the will of peoples under circumstances where such will can be freely expressed. With regard to Article 1(1) of the iccpr, State parties should describe the constitutional and political processes which in practice allow the exercise of this right. Common Article 5(1) of the two 1966 Covenants implies that a limitation exists on the right to self-​determination to the extent that any exercise of the right cannot result in the destruction or impairment of any of the other rights protected.106

102 Ireland’s Written Statement before the icj (17 April 2009), para. 30; Norway’s Written Statement before the icj (17 April 2009), para. 4. Norway also “underlines that the principles of sovereignty, territorial integrity and the right to self-​determination are principles that have to be considered in parallel.” 103 Conference on Yugoslavia, Arbitration Commission (above note 100). 104 Related to these questions Jure Vidmar Democratic Statehood in International Law: the Emergence of New States in Post-​Cold War Practice (Hart, 2013), at 139–​201. 105 Western Sahara Advisory Opinion (above note 41) at para. 59. 106 Article 5 (1): “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein.” See in this regard, Robert McCorquodale “Self-​determination: a Human Rights Approach” (1994) 43 International and Comparative Law Quarterly 857, at 876.

710 Park (2)

(3)

The holder of the right to self-​determination: No definition of the term “people” has been generally agreed upon so far. One of the most difficult and complex issues in relation to self-​determination, concerns the definition of the term of “people.”107 However, the lack of definition does not in itself mean that it is always unclear in concrete instances whether one or more peoples exist. Drawn from previous practice and jurisprudence, three categories for designating “people” can be identified: people in the process of decolonization,108 people outside the context of decolonization,109 and arrangement on self-​government for a particular indigenous people. Obligations upon States: With respect to the promotion of the right to self-​determination, what kinds of obligations for third States flow from the violation of the right to self-​determination?110 As lex lata in some parts and lex ferenda in some other parts, all States are under an obligation not to recognize any illegal situation resulting from violations of this right, and not to render aid or assistance in maintaining the situation created by such a violation;111 moreover, all States, while respecting the UN Charter and international law, are obliged to see that any impediment resulting from the violation of a people’s exercise of its right to self-​determination is brought to an end.112

107 See Kohen (above note 67), at 967, who suggests that the “people” is closely related to “territory” (“ ..le critère de base pour déterminer juridiquement ce qu’est un peuple est l’élément territorial.”). 108 For example, Western Sahara Advisory Opinion (above note 38); East Timor case (above note 13); and Chagos Advisory Opinion (above note 41). 109 For example, The Wall Advisory Opinion (above note 13) and the Kosovo Advisory Opinion (above note 53). 110 Draft Conclusion 19 of the Draft Conclusions on Peremptory Norms (above note 15), particular consequences of serious breaches of peremptory norms of general international law (jus cogens) reads “1. States shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens). 2. No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens), nor render aid or assistance in maintaining that situations. 3. A breach of an obligation arising under a peremptory norm of general international law (jus cogens) is serious if it involves a gross or systematic failure by the responsible State to fulfill that obligation. 4. This draft conclusion is without prejudice to the other consequences that a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens) may entail under international law.” 111 Robert Kolb indicates a tension between the right to self-​determination of peoples and the prohibition on territorial acquisition through the use of force. Kolb (above note 67), at 124–​126. 112 Wall Advisory Opinion (above note 13), para. 159.

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Distinction between internal and external self-​determination: According to some scholars,113 the right to self-​determination implies in its internal aspect the freedom for the people to choose their form of government, their economic and social system and the way to freely pursue their economic, social and cultural development. In its external aspect, it grants the freedom to decide its international political status, be it independence, free association, integration into another State or any other status. These two aspects are not subject to division. Claims to self-​determination in the era of decolonization were considered as the exercise of external self-​determination. Beyond the decolonization context, claims to self-​determination primarily deal with the issue of internal self-​determination. Whereas external self-​determination in the context of decolonization has achieved agreement, the post-​colonial perspective on the exercise of internal self-​determination remains controversial, in particular when it concerns a movement towards secession. The distinction between external and internal self-​determination thus remains an issue requiring further research. Conclusion

It has now been more than half a century since “the right to self-​determination” became a quintessential legal concept through its embodiment in the UN Charter. It has evolved and, through practice, has been consolidated as one of the fundamental principles of international law. It is firmly established as a legal norm, as can be drawn from a range of State practice, international legal materials and jurisprudence. From the jurisprudence and practice detailed above, it can be provisionally concluded that the right to self-​determination applies to all situations where peoples are subject to oppression by subjugation, domination and exploitation by others. It is applicable to all territories, colonial or not, and to all peoples. Despite its importance, it is interesting to note that the discussion on the legal character of the right of self-​determination has not yet reached its conclusion. The reasons for this are varied, but most of them are likely based on the conception that the right to self-​determination has been deemed as a sensitive political concept involving different interests of States. However, it

113 Milena Sterio “On the Right to External Self-​Determination: Selfistans, Secession, and the Great Powers’ Rule” (2010) 19 Minnesota Journal of International Law 137, at 138–​139.

712 Park should be reiterated that the right to self-​determination has become a legal concept since its inclusion in the UN Charter, and in the mid-​1960’s it became a principle of customary international law. It is now certain that States regard the principle as fundamental and universal in international relations, and from that perspective, it could be assumed that States consider the principle may not be derogated from.114 At the same time, however, as can be seen from the assessment in this chapter, it is also true that the opposite view over the right to self-​determination as a norm jus cogens still remains. This prevents a definitive confirmation of its peremptory character. In that the majority of States remain silent on the issue, whereas a number of States uphold the right to self-​determination elevated into a norm jus cogens, it is questionable whether the threshold of a high level of acceptance and recognition can be assumed to have been reached. Ultimately, the prospects for the jus cogens status of self-​determination depends on the addressing the four aspects identified above, namely, procedural legality, the holder of the right to self-​determination, obligations upon States, and the distinction between external and international self-​determination. If these aspects are resolved or clarified by future State practice or agreed upon explicitly by States, the normative status of the right to self-​determination will be elevated. As discussed in this chapter, the right to self-​determination should not remain in the position of merely a principle of customary international law. Having erga omnes nature in itself represents the significance of the right to self-​determination. If the persistent objector rule or doctrine is seen to apply, it would prevent the firm and coherent response of the international community to ensure the right to self-​determination. In this regard, the inclusion in the ILC’s Draft Conclusions on Peremptory Norms of the right of self-​ determination in the non-​exhaustive list of jus cogens should be seen as paving the way forward to further discussion of its peremptory character as well as its normative status.

Acknowledgement

I would like to thank Professor Yejoon Rim, Korea University, for her thorough review of this paper. 114 Cassese (above note 1), at 140.

Chapter 25

Sovereign Equality as a Peremptory Norm of General International Law Hannah Woolaver 1

Introduction

The principle of sovereign equality of States is the foundational principle of the modern international legal system. Long before the enactment of the United Nations Charter, the “perfect equality and entire independence of all distinct States” was described as one of the “fundamental” and “generally recognised” principles of international law.1 It is now enshrined in Article 2(1) of the United Nations Charter as one of the Principles of the Organization, and the one on which the UN as a whole is based. The icj has held that the denial of a State’s sovereign equality and the rights derived from it “would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests”.2 Despite the recognition of the fundamental importance of the principle in international law, there has long been controversy about its jus cogens status. That this controversy continues is apparent from the International Law Commission’s most recent proceedings concerning peremptory norms of general international law (jus cogens). The exclusion of the principle of sovereign equality from the non-​exhaustive list of examples of peremptory norms drew disagreement from several ilc members during the ilc’s proceedings3 and in external writings.4 It may be argued that the principle of sovereign equality of States undeniably satisfies the criteria set out by the ilc for the recognition of peremptory norms –​namely, being a norm of general international law that is accepted and recognized by the international community of States as a whole as a norm 1 English High Court of Admiralty, Le Louis (1817) 2 Dodson 210. 2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), (Merits), icj Reports 1986, p.14, at para. 202, 263. 3 See discussion below. 4 E.g., Ernest Petrič “Principles of the Charter of the United Nations –​Jus Cogens?” (2016) 7 Czech Yearbook of International Law 3, at 12.

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_026

714 Woolaver from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.5 For, it is practically unimaginable that States or international organisations would expressly deny the principle itself, or its application to any individual State. Further, the principle of sovereign equality “reflect[s]‌and protect[s] fundamental values of the international community”, protecting the nature of international law as a consent-​based system between legal subjects that are entitled to the same core capacities, rights and duties. As put by Roth, the principle of sovereign equality represents “international law’s highest and best uses … the establishment of a platform for peaceful accommodation among States representing a diversity of interests and values, and the protection of weak political communicates from overbearing projections of by strong foreign States”.6 However, certain characteristics may act as hurdles driving the disagreement concerning the status of the principle as jus cogens. There remains confusion as to what exactly is meant by the sovereign equality of States. This is particularly so given the extreme material inequalities that persist in international society. This leads to two potential challenges to the recognition of sovereign equality as a peremptory norm. The first is the composite nature of sovereign equality. In other words, the principle of sovereign equality denotes a collection of rights, capacities and obligations that are automatically vested in territorial entities that are accepted as States. In contrast, the jus cogens rules that have lately been recognised by the ilc are restricted to specific prohibitions, such as the prohibitions of aggression or genocide. The second is that the legal content of the principle of sovereign equality is changeable over time, which may be seen as undermining its peremptory status. A further challenge is that a number of the elements that are accepted as deriving from sovereign equality are themselves derogable, bringing into question the jus cogens nature of the principle, and the conditions under which consent may be given to such derogations. This chapter will explore the possible peremptory status of sovereign equality in the face of these hurdles. After providing an overview of the principle and its inclusion and treatment in treaties, judicial decisions, and academic writings, its content will be explored. I will then examine the debates concerning sovereign equality as a peremptory norm, focusing on the ilc’s proceedings on the law of treaties, the law of State responsibility, and most recently on 5 Draft Conclusions 2 and 4 of the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​First Session, General Assembly Official Records (A/​74/​10) (2019), Chapter v. 6 Brad Roth Sovereign Equality and Moral Disagreement (Oxford, 2011), at 5.

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peremptory norms of general international law (jus cogens). The challenges of conceptualizing sovereign equality as a jus cogens rule will be set out, particularly its composite character as a collection of rights and duties, its changing content, and the quandary of the legality of consent-​based derogation from ostensibly non-​derogable norms. While a detailed examination of State recognition of the principle as a peremptory norm, which is outside of the scope of this Chapter, would be required to draw conclusions as to its jus cogens status, it will be argued that these barriers to recognizing the principle of sovereign equality as a peremptory norm are more apparent than real. 2

The Principle of Sovereign Equality

2.1 Sovereign Equality in the United Nations Era While semi-​sovereign States may have been common prior to 1945, assertions of the sovereign equality of States in international law have become effectively universal among States, international jurists, and treaties. It is now enshrined in Article 2(1) of the United Nations Charter which states that “The Organisation is based on the principle of the sovereign equality of all its Members.”7 There is some debate as to whether this “sovereign equality” indicates the traditional concepts of sovereignty and equality of States, or rather that this is a new concept in international law. Fassbender, for example, argues that it is a new concept, and therefore that 1945 is a decisive break in the definition of sovereignty.8 Simpson9 and Kelsen10 in contrast, assert the continuity of these principles before and after the UN Charter. Regardless, UN practice has had a significant impact on the content of these concepts. The contemporary content 7

8 9 10

Art 2(1) of the UN Charter of the United Nations applies only to Member States of the UN, though the principle of sovereign equality was explicitly applied to all States in the Friendly Relations Declaration. See Declaration on Principles of International Law Concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the United Nations, Resolution 2625 (xxv) (24 October 1970), Annex, Official Records of the General Assembly, Twenty-​fifth Session, Supplement No. 28, UN Doc. A/​5217. Bardo Fassbender, (2002) “Article 2(1)” in Bruno Simma (ed.) The Charter of the United Nations: A Commentary (Second Edition, 2002), at 70. E.g., Gerry Simpson Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge 2004), at 36, describing the period after Westphalia until the 19th Century as one of “strong sovereign equality”, implying the continuity of the principle. Hans Kelsen “The Principle of Sovereign Equality of States as a Basis for International Organization” (1944) 53 Yale Law Journal. 207, at 207 argues that sovereign equality “probably means sovereignty and equality, two generally recognised characteristics of States as subjects of international law.”

716 Woolaver of the principle must be determined with reference to the post-​UN Charter practice interpreting its provisions. The principle of the sovereign equality of States was first articulated in the Four Power Declaration of the Moscow Conference in 1943, and then in the Dumbarton Oaks Proposals. From there it was codified in Article of 2(1) of the UN Charter. In addition, Article 78 of the Charter states that “relations among [UN Member States] shall be based on respect for the principle of sovereign equality”. The formulation of Article 2(1) of the UN Charter emphasises the equality of States, rather than their sovereignty: sovereignty is reduced to an adjective describing the type of equality enjoyed by States.11 Apart from the Charter, many other international legal instruments affirm the sovereign equality of States. These include constituent documents of regional organisations;12 treaties on key areas of international law;13 widely-​endorsed General Assembly resolutions, including the Declaration of the Principles of Friendly Relations (‘Friendly Relations Declaration’) (1970),14 and the Declaration on the Inadmissibility of Intervention (1981);15 and other significant international law instruments and statements of international legal principles.16 Several significant judicial decisions have also recognised the principles of sovereign equality of States and/​or the equality of States as a fundamental aspect of the international legal system. Certain early 19th Century judicial decisions, particularly coming from the US and UK courts, asserted the equality of States in international law. US Supreme Court Chief Justice Marshall in Schooner Exchange v M’Faddon (1812) speaks of “the perfect equality and absolute independence of sovereigns” in a world of “distinct sovereignties, possessing equal rights and independence”.17 This was echoed by the English High 11 12

13 14 15 16

17

Fassbender (above note 8), at 83. See also Simpson (above note 9), at 41. See, e.g., Art 10 of the 1967 Charter of the Organisation of American States; Art 4(a) of the 2000 Constitutive Act of the African Union; Art 3 of the 1963 Charter of the Organisation of African Unity; Art 3(a) of the 2007 Lisbon Treaty of the European Union; Preamble and Art. 2(a) of the 2007 Charter of the Association of Southeast Asian Nations. See, e.g., Art3 of the 1933 Montevideo Convention on the Rights and Duties of States; Preamble of the 1961 Vienna Convention on Diplomatic Relations; Preamble of the 1969 Vienna Convention on the Law of Treaties. See Friendly Relations Declaration (above note 7. UN General Assembly Resolution 36/​103 (1981). See, e.g., Art3 of the 1916 American Institute of International Law’s Declaration of the Rights and Duties of Nations; Art 5 of the 1949 International Law Commission’s Draft Declaration on Rights and Duties of States; and Principle i of the 1975 Final Act of the Conference on Security and Cooperation in Europe. The Schooner ‘Exchange’ v M’Faddon et al., Cranch, Judgement of the United States Supreme Court, 2 March 1812, at 136–​7.

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Court in The Parlement Belge (1880).18 Similarly, a number of cases, including the English High Court of Admiralty judgment in Le Louis (1817),19 and the US Supreme Court in The Antelope (1825)20 upheld the legality of the Slave trade under international law, and the consequent illegality of seizing foreign Slaving ships, on the basis of the equality of States. The Court in Le Louis described the “perfect equality and entire independence of all distinct States” as one of the “fundamental” and “generally recognised” principles of international law. Both the Permanent Court of International Justice,21 and the icj have repeatedly invoked this principle in their reasoning for a variety of purposes. The icj has relied on the principles of sovereign equality and the equality of States in a number of contexts: as a basis for various rights of States, including territorial integrity and political independence,22 and State immunity;23 as influencing the proper interpretation of treaties,24 and of customary international law.25 18 19 20

The Parlement Belge, Judgement of the UK Court of Appeal, 27 February 1880,at 197. Le Louis 2 Dodson, Judgement of the High Court of Admiralty, 1817, at 210. The Antelope (10 Wheat.), Judgement of the United States Supreme Court, 1825, at 122. (“No principle of general law is more universally acknowledged, than the perfect equality of nations.”). 21 Case of the S.S. Lotus (France v Turkey), Permanent Court of International Justice Ser.A. No.10 1927, at para. 245. 22 Military and Paramilitary Activities in an Around Nicaragua (Nicaragua v United States of America), (Merits), icj Reports 1986, p. 14, at para.202; Dissenting Opinion of Judge Koroma, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, icj Reports 1996, p.226, at 354. Individual opinions have also relied on sovereign equality of States as the basis of the system of sovereign immunities (Separate Opinion of President Guillaume in Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), icj Reports 2002, p. 3, at para. 15; Separate Opinion of Judge Rezek in Arrest Warrant, at par. 9; Dissenting Opinion of Judge van den Wyngaert in Arrest Warrant, at para.5; Separate Opinion of Bula-​Bula in Arrest Warrant, para.23; the right of self-​defence (Separate Opinion of Judge Fleischhauer, Nuclear Weapons (above note 22), at 83; Weearamantry, Nuclear Weapons, at 304–​305, 319); the right to exist (Shahabuddeen, Nuclear Weapons, at 192); the requirement of consent for dispute settlement (Dissenting Opinion of Judge Zoričič in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, icj Reports 1950, 65, at 38–​39). 23 Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (Merits) icj Reports 2012, p. 99, at para. 57. 24 Asylum Case (Colombia v Peru), (Merits), icj Reports 1950, p. 266, at 275; Dissenting Opinion of Judge Azevedo Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, icj Reports 1950, p. 4, at 27; Dissenting Opinion of President Winiarski in Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) Advisory Opinion, icj Reports 1962, p.151, at 232. 25 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), (Merits), icj Reports 1969, p.3, at para. 63; Continental Shelf (Libyan Arab Jamahiriya v Malta), (Merits), icj Reports 1985, p. 13, at para. 46; Declaration

718 Woolaver Numerous Separate and Dissenting Opinions in the icj have described sovereign equality as a fundamental principle of international law, and of the UN Charter system, echoing Article 2(1) Charter.26 The icty also cited the principle of sovereign equality as the basis of the UN system.27 2.2 Content of Sovereign Equality in Contemporary International Law The core of the principle of sovereign equality is that all States acquire an identical international legal personality upon achieving the Statehood.28 Thus, as noted by Warbrick, territorial entities are equal in international law because they are States, they are not States because they are equal.29 The content of this legal equality of States is closely connected with the nature of the international legal system as a whole; it is a decentralized system in which the primary legal subjects, States, are also the creators and enforcers of international law: [T]‌he community of nations is by very definition a voluntaristic community. No element in it imposes constraints upon any other element from above. Such a structure is altogether impossible except on the basic

of Judge Shi in Nuclear Weapons (above note 22), at 277–​278; Dissenting Opinion of Judge Weeramantry in Nuclear Weapons (above note 22), at 304; Separate Opinion of President Guillaume, Arrest Warrant (above note 22), at para. 15. 26 E.g., Declaration of Judge Shi Nuclear Weapons, (above note 22), at 277–​278; Dissenting Opinion of Judge Koroma in Nuclear Weapons, (above note 22), at 354; Separate Opinion of Judge Rezek in Arrest Warrant, (above note 22), at para. 9; Dissenting Opinion of Judge Zoričič in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (above note 22) at 38–​9; Dissenting Opinion of Judge Azevedo Competence of the General Assembly for the Admission of a State to the United Nations (above note 24), at 26–​27; Dissenting Opinion of Judge Krylov in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (above note 22), at 48; Dissenting Opinion of Caneiro in Effect of Awards of Compensation made by the U. N. Administrative Tribunal, Advisory Opinion, icj Reports 1954, p. 47, at 92; Dissenting Opinion of President Winiarski in Certain Expenses (above note 24), at 232; Dissenting Opinion of Moreno Quintana, Certain Expenses (above note 24), at 101; Separate Opinion of Vice-​President Ammoun, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion, icj Reports 1971, p. 16, at para.7; Dissenting Opinion of Judge Weeramantry in Nuclear Weapons (above note 22, at 304–​6. 27 E.g., Prosecutor v Tadic ( Jurisdiction), Judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, 2 October 1995, at para. 55. 28 Ian Brownlie Principles of Public International Law (Fifth Edition, Oxford, 1998), at 289; Pieter Kooijmans The Doctrine of the Legal Equality of States (Sijthoff, 1964), at 128. 29 Colin Warbrick “The Principle of Sovereign Equality’ in Colin Warbrick and Vaughan Lowe (eds.) The United Nations and the Principles of International Law: Essays in Memory of Michael Akehurst (Routledge, 1994), at 205.

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premise of equality. Else the danger is very real that the law will become little more than the expression of the will of the strongest.30 The principle of sovereign equality is, therefore, a formal one that largely operates to prevent the transformation of factual power differentials into the legal supremacy of powerful States, primarily protecting the State’s territorial integrity and political independence from limitations or intrusions to which it did not consent, rather than one that seeks to remedy material differences between States. Of course, the immediate response to the declaration of the sovereign equality of States is that by any factual measure, States are grossly unequal, in terms of economic resources, military capabilities, population, territorial extent, and political influence to name but the most obvious. Indeed, some argue that power differentials between States negate their equality. As put by Lorimer, an adamant denier of the principle of equality of States: “They differ in powers, and consequently in rights; and the recognition which they are entitled to claim from each other is proportioned to their powers and rights.”31 Therefore, it is important to articulate what it is that is meant by the legal sovereign equality of States. The Interpretive Report of Committee I/​1/​A at the San Francisco Conference stated that the “sovereign equality of States” protected by Art.2(1) unc has the following elements: (1) That States are juridically equal (2) That they enjoy the rights inherent in their full sovereignty (3) That the personality of the State is respected, as well as its territorial integrity and political independence (4) That the State should, under international order, comply faithfully with its international duties and obligations.32 This formulation is echoed the Friendly Relations Declaration.33 30 31 32 33

Dissenting Opinion of Judge Weeramantry in Nuclear Weapons (above note 22), at 305. James Lorimer The Institutes of the Law of Nations (Blackwood and Sons, 1883), at 103. Report of Rapporteur of Sub-​committee i/​1/​A to Committee i/​1: Chapter ii, June 1, 1945; United Nations Conference on International Organisation vi, 717 et seq. The Declaration added statements that “[e]‌ach State has the right freely to choose and develop its political, social, economic and cultural systems”, that the territorial integrity and political independence of the State are “inviolable”, and that States have an obligation to maintain peaceful relations with other States. For a discussion of the Friendly Relations Declaration in this volume see Jorge E Viñuales “The Friendly Relations Declaration and Peremptory Norms”.

720 Woolaver Sovereign equality, therefore, can be understood as an umbrella term denoting the various legal prerogatives and duties that attach automatically to the status of Statehood by operation of international law. As put by Roth, sovereign equality is “a reference to a core set of entitlements that the international legal order attributes equally to all States.”34 Commentators have sought to distil the elements of sovereign equality in many and various ways. Crawford has set out five aspects of sovereignty that he describes as the “core legal characteristics of a State”,35 largely reflecting the understanding of sovereign equality at the San Francisco Conference. First, “States have plenary competence on the international plane to perform acts, make treaties and so on”.36 This legal capacity is one of the “rights inherent in their full sovereignty” as described at the San Francisco Conference and in the Friendly Relations Declaration. In The Wimbledon case, the Permanent Court of International Justice held that “the right of entering into international engagements is an attribute of sovereignty”.37 This “capacity for rights”, including treaty-​making capacity38 and the capacity to contribute to the formation of customary international law, is what enables States to bind themselves to rules of international law. The State’s objective legal personality denotes that it automatically “is a subject of international law and capable of possessing international rights and duties, and … has capacity to maintain its rights by bringing international claims.”39 States’ exercise of their legal capacity also leads to the differing rights held by States. As States have undertaken widely varying treaty and customary obligations, so their legal rights and duties will vary.40 The opposite side of this coin is the consensual basis of international law; as put by Roth, “a State is presumed to be obligated only to the extent of its 34 35

Roth (above note 6), at 53. James Crawford, Chance, Order, Change: The Course of International Law (2014), at paras 89-​98. 36 Crawford, Id., at para. 90. 37 Case of the S.S. Wimbledon, Permanent Court of International Justice Ser.A. No.1 1923, 35. 38 Article 6 of the 1969 Vienna Convention on the Law of Treaties. 39 Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, icj Reports 1949, p.174, at 179. See also James Crawford The Creation of States in International Law (Second Edition, Oxford, 2006), at 30. 40 See, e.g., UK Government in “Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States” Memorandum Submitted by the Secretary-​General of the United Nations (A/​c n.4/​2) (1948), at 66: “all States enjoy an equality of rights but this does not mean they have the same rights. … Every State to some extent circumscribes, or increases, its rights and duties by the treaty commitments into which it has entered.” See also Warbrick (above note 29), at 206; Percy Corbett “Social basis of a law of nations” (1954) 85 Recueil des Cours de la Académie de Droit International 511.

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actual or constructive consent.”41 This principle was articulated perhaps most famously by the Permanent Court of International Justice in the Lotus case.42 The consensual basis of international law has long been described as a consequence of State equality. US Chief Justice Marshall in The Antelope held, for instance, that “the perfect equality of nations” had the result [T]‌hat no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be divested only by consent … As no nation can prescribe a rule for others, none can make a law of nations.43 More recently, Judge Shi in Nuclear Weapons rejected undue reliance on the practice of a small number of States to support the existence of a rule of customary law as “contrary to the very principle of sovereign equality”, as it did not illustrate sufficiently widespread State consent to the rule.44 This has been described as “equality for law-​making purposes”,45 or “legislative equality”.46 Second, “States have exclusive competence in their internal affairs”, and “their jurisdiction is prima facie plenary and exclusive”, as reflected in Article 2(7) of the UN Charter. This aspect reflects, at least in part, the San Francisco Conference report that the personality of the State is respected, as well as its territorial integrity and political independence. The Friendly Relations Declaration put it more strongly –​emphasizing the “inviolability” of the State’s territorial integrity and political independence, and that “[e]‌ach State has the right freely to choose and develop its political, social, economic and cultural systems”.47 The State’s exclusive international legal authority over its territory bars non-​ consensual incursions by other States.48 The icj held in Corfu Channel: “Between

41 Roth (above note 6), at 67. 42 The pcij stated in The Case of the Lotus (above note 21), at 18: “International law governs relations between independent states. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between the co-​existing independent communities or with a view to the achievement of common aims.” At. 43 The Antelope (above note 20), at 122. 44 Declaration of Judge Shi in Nuclear Weapons (above note 22), at 56. 45 Arnold McNair “Equality in International Law” (1927) 26 Michigan Law Review 131, at 142. 46 Simpson (above note 9), at 42. 47 Friendly Relations Declarations (above note 7). 48 Roth (above note 6), at 67.

722 Woolaver independent States, respect for territorial sovereignty is an essential foundation of international relations.”49 The right to territorial integrity is buttressed by other rules of international law, primarily the “fundamental” prohibition of the use of force50 in Article 2(4) and 51 of the UN Charter respectively.51 Territorial integrity is further protected by the “inherent” right of self-​defence, codified in Article 51 of the Charter, which “every State possesses as a matter of sovereign equality.”52 Alongside territorial integrity, the State’s exclusive jurisdiction protects its political independence to make decisions regarding those matters that are within its domestic jurisdiction free from coercion of other States. The prohibition of intervention in Article 2(7) of the UN Charter and numerous other international instruments53 is “part and parcel of customary international law”.54 The icj in the Nicaragua case confirmed that the prohibition of intervention is “a corollary of the principle of the sovereign equality of States”, and held “every State possesses a fundamental right to choose and implement its own political, economic, and social systems”, which, if denied to any State “would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests”.55 However, the content of the State’s protected domestic jurisdiction is not immutable, but, as put by the pcij in 1923, “depends on the development of international relations”.56 Thus, areas that were once said to be beyond the reach of international law are, due to the emergence of treaty

49 50 51 52

53

54 55 56

Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), (Merits), icj Reports 1949, p. 4, at 35. See also Dissenting Opinion of Judge Koroma in Nuclear Weapons (above note 22), at 354. Nicaragua (above note 22), at para.181. On the prohibition of the use of force in the volume see Olivier Corten and Vaios Koutroulis “The Jus Cogens Status of the Prohibition on the Use of Force: What is its Scope and Why Does it Matter” (Chapter 22). Separate Opinion of Judge Fleischhauer in Nuclear Weapons (above note 22), at 83. See also Nuclear Weapons (above note 22), para. 96.; Dissenting Opinion of Judge Weeramantry in Nuclear Weapons (above note 22), at 304. See also Simpson (above note 9), at 29; Roth (above note 6), at 67. Art4(g) of the 2000 Constitutive Act of the African Union; Art8 of the 1933 Montevideo Convention on the Rights and Duties of States; Art18 1967 Charter of the Organisation of American States; Art8 of the 1955 Treaty of Friendship, Cooperation and Mutual Assistance (Warsaw Pact); Art 8 of the 145 Pact of the League of Arab States; Principle vi of the 1975 Helsinki Final Act. Nicaragua (above note 2), at 106. Id, at paras. 202, 263. Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion (1923), Permanent Court of International Justice 1923 Ser. B, No 4, at 24.

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and customary international law obligations, no longer within the protected realm of domestic jurisdiction.57 Third in Crawford’s list is that “States are not subject to compulsory international processes, jurisdiction or settlement without their consent”.58 This is an aspect of the general consensual nature of international law, described above. Fourth, Crawford refers to the formal equality of States.59 This aspect of sovereignty aligns with the “juridical equality” identified by Committee i/​1/​A, which has also described as equality before the law, “judicial equality”,60 or “forensic equality”.61 This aspect of sovereign equality requires that the international legal rights of all States are equally binding in international law and must be equally protected by bodies that apply international law. The icj has held “all States are equal before the law and are entitled to equal treatment”.62 Similarly, Judge Shahabuddeen stated in Nauru (1992): [W]‌hatever the debates relating to its precise content in other respects, the concept of equality of States has always applied as a fundamental principle to the position of States before the Court. … States of all kinds and sizes may bring their cases before the Court on a basis of perfect equality.63 The principle of generality of the application of international law also derives from the juridical equality of States.64 Juridical equality of States is widely accepted by commentators as a necessary element of the international legal system, even including avowed skeptics 57 58 59 60 61 62 63

64

See Wildhaber, quoted in Fassbender (above note 8), at 84: “sovereignty is a relative notion, variable in the course of times, adaptable to new situations and exigencies, a discretionary freedom from within, and not from, international law”. Crawford (above note 35), at 92. Id., at 93. Friendly Relations Declaration (above note 7). McNair (above note 45), at 136. Continental Shelf (above note 25), at para.46. Certain Phosphate Lands in Nauru (Nauru v Australia), (Preliminary Objections), icj Reports 1992, p 240, at 270. Counsel for Australia in this case also emphasised this aspect of the equality of States: “Before this Court, of course, the equality of the Parties will be preserved. Rich or poor, large or small, the Court will ensure that their legal rights have equal protection.” Ibid. North Sea Continental Shelf Cases (above note 25), at para. 63. See Adolf Lande “Revindication of the Principle of Legal Equality of States, 1871–​1914 ii” (1947) 62 Political Science Quarterly 398, at 415; Bengt Broms The Doctrine of Equality of States as Applied in International Organizations (Ph.D. Thesis, University of Helsinki, 1959), at 15.

724 Woolaver such as Lorimer.65 However, equality before the law merely ensures respect for the rights legal subjects are given by the legal system in question, and says nothing about the content of those rights:66 Kelsen, therefore, describes it as being “compatible with any actual inequality”.67 Nonetheless, juridical equality gives rise to at least one substantive sovereign right, namely State immunity. As put by the icj The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order.68 The maxim par in parem non habet imperium makes clear the link between formal State equality and immunity: equals do not have jurisdiction over each other. Fifth, and finally, Crawford notes that “derogations from these principles will not be presumed”.69 Similarly, Roth describes the content of the sovereign equality of States as establishing “strong but not irrebuttable legal presumptions”.70 While of fundamental importance to the international legal order, it can be seen that the contemporary content of the principle of equality of States in international law is limited and formal. In summary, the principle of sovereign equality of States defines the status of States relative to other States in international law; it requires the equal application of rules of general international law to all States; and guarantees the equal possession by all States of a small core of rights deemed inherent in Statehood by international law. Sovereign equality cannot remedy material differences in power and resources, but rather seeks to prevent the translation of these into legal disparities, and to act 65 66 67 68

69 70

Described by McNair as the first jurist to question the principle of equality of States: McNair (above note 45), at 134. James Brierly The Law of Nations (Sixth Edition, Clarendon Press, 1963), at 132, describes States’ juridical equality as “true, but obvious.” Kelsen (above note 10), at 209. Similarly, Simpson (above note 9), at 43. Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening) (above note 23), at para. 57. On immunity and jus cogens, see, in this volume Kobina Egyir Daniel “A Jus Cogens Human Rights Exception to Head of State Immunity: Fact, Fiction or Wishful Thinking?” (Chapter 26). Crawford (above note 35), at 92. Roth (above note 6), at 67.

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as a bulwark against the legal domination of weak States by the strong. As put by representatives during the drafting of the Friendly Relations Declaration, “if all nations were equal in size and power, the principle of sovereign equality of States would be less important than it was in fact.”71 3

The International Law Commission and the Peremptory Status of Sovereign Equality

It has been noted above that affirmations of the sovereign equality of States are essentially universal among States, international organisations, and international courts. It is frequently described in the above-​cited judgments of the icj and other international tribunals as a fundamental principle of the international legal order. It is the principle on which the United Nations Charter states that the entire organisation is based.72 It may be seen as paradoxical, then, that sovereign equality is frequently excluded from the list of peremptory norms of international law. The International Law Commission has taken inconsistent positions on the jus cogens nature of the sovereign equality of States. The debate first arose in the course of the preparation of the Draft Articles on the Law of Treaties’ provision on the invalidity of treaty provisions that are inconsistent with a rule of jus cogens status. Ultimately, the ilc decided against including a list of examples of jus cogens norms. However, as noted in the commentary on the Draft Articles, several members had proposed “the equality of States” as an example worthy of inclusion.73 Special Rapporteur Waldock himself gave sovereign equality as an example of a jus cogens rule.74 Further, at the Vienna

71 Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-​operation among States on the Consideration of Principles of International Law Concerning Friendly Relations and Co-​operation among States in accordance with the Charter of the United Nations, Nineteenth session, General Assembly Official Records (A/​5746) (1964), at 130. 72 Art 2(1) un Charter. 73 Para 3 of the Commentary to Draft Art 50 of the Draft Articles on the Law of Treaties with Commentaries, Report of the International Law Commission, Eighteenth Session, General Assembly Official Records (A/​6309/​Rev.1) (1966).. See, e.g., Mr Tunkin (A/​c n.4/​s r.713), at 274; Mr Bartos (A/​c n.4/​s r.878), at 233. 74 Waldock, UN Conference on the Law of Treaties 1968, Proceedings Vol. i, 328. However, he had earlier excluded sovereign equality from the list of “conspicuous examples” of jus cogens rules: Second Report of Special Rapporteur (Humphrey Waldock) on the Law of Treaties (A/​c n.4/​156 and Add.1-​3) (1963), at 53.

726 Woolaver Conference, several States described sovereign equality as a peremptory norm.75 Subsequently, the ilc’s work on the Draft Articles on State Responsibility involved discussion of peremptory norms. Again, the ilc decided against including a list of jus cogens rules in the Articles themselves,76 though the commentary on Draft Article 40 provided a list of examples of those which had “widespread agreement” or “general acceptance”. This illustrative list did not include sovereign equality, though it did note the reference to the equality of States as a possible jus cogens norm in the commentary to the Draft Articles on the Law of Treaties.77 Instead, here the ilc included only prohibitive rules of international law as peremptory norms: “The obligations referred to in Article 40 arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human values”.78 Most recently, in its work on peremptory norms of general international law (jus cogens), the ilc has again sought to draft an exemplary list of jus cogens rules. The old debate concerning the jus cogens status of sovereign equality resurfaced. Sovereign equality again was excluded from the non-​exhaustive list in the Annex to the ilc’s latest draft conclusions, which repeats the examples given in the ilc’s commentary on the dasr.79 However, in the latest work, the ilc notes that the equality of States was previously referred to as jus cogens in its Commentary to Draft Article 50 of the 1966 Draft Articles on the Law of Treaties. Further, the ilc emphasized that its list was non-​exhaustive, and highlighted the role of United Nations Charter Principles generally in the formation of jus cogens rules –​which of course include sovereign equality. As noted by Special Rapporteur Tladi,80 several ilc members criticized the lack of inclusion of sovereign equality, saying that it was the fundamental rule of the international legal order. For instance, Mr. Murase expressed the view that “[i]‌t was perhaps naivety on his part, but his initial reaction had been to question why respect for State sovereignty was not at the top of the list of jus 75 76

77 78 79 80

E.g., UN Conference on the Law of Treaties 1968, Proceedings Vol. i: Ceylon, at 219; ussr, at 294; Sierra Leone, at 300; Ghana, at 301; Cyprus at 306. Para 3 of the Commentary on Draft Article 40 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Report of the International Law Commission, Fifty-​Third session, General Assembly Official Records (A/​56/​10)(2001), at para. 3. Id., commentary at fn. 641. Id., commentary at para. 3. See Tladi (A/​c n.4/​s r.3465), at 4. Ibid., at 10.

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cogens norms, since sovereignty, or sovereign equality, was the most fundamental norm in international law.”81 The ilc, however, explained that despite this criticism, “the Drafting Committee had decided to limit the list to those norms that the Commission had most clearly designated as peremptory norms of general international law (jus cogens) in the past.”82 As noted above, this amounted to simply repeating the list of prohibitive rules from the dasr. 4

Hurdles to the Recognition of Sovereign Equality as a Peremptory Norm

From one perspective, the reticence to recognise sovereign equality as a jus cogens rule is surprising. It is difficult to conceive of a rule that is more central to the character of the international legal order. Petrič, for instance, argues that “if these basic principles of the UN Charter, agreed by general consensus of the international community and sustained by the awareness that they are basic principles on which the modern international order is based and which protect the fundamental values of such order, are not jus cogens, what would then be jus cogens in international law?”83 Certain commentators have supported the peremptory status of the sovereign equality, the UN Charter Principles, and their articulation in the Friendly Relations Declaration which details many of the elements of sovereign equality discussed above.84 Similarly, descriptions of sovereign equality as “foundational”,85 “fundamental”86 or the “cornerstone of international law”87 are common in academic commentary as in the judicial decisions cited above. As already noted, in terms of the criteria identified by the ilc –​being a norm of general international law that is 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 81 82 83 84 85 86 87

Murase (A/​c n.4/​s r.3459), at 12. See also Ms. Galvão Teles (A/​c n.4/​s r.3460), at 3–​4; Petrič, at 10, Argüello Gómez, at 11 (A/​c n.4/​s r.3462); also referring to same view as Mr Huang; Mr. Zagaynov (A/​c n.4/​s r.3463) at 10–​11; Mr. Ouazzani Chahdi (A/​c n.4/​s r.3463), at 12. Provisional summary record of the 3472nd meeting (A/​c n.4/​s r.3472) (2019), at 13. Petrič (above note 4), at 12. See, e.g., Robert Ago “Droit des traités à la lumière de la Convention de Vienne” (1971)134 Recueil des Cours de la Académie de Droit International, at 324, n.37; Petrič (above note 4), and sources cited therein. Roth (above note 6), at 53. Julianne Kokott, “States –​Sovereign Equality” (2011) Max Planck Encyclopedia of Public International Law. See, e.g., Robert Kolb Theory of International Law (Hart, 2016), at 158.

728 Woolaver subsequent norm of general international law having the same character, and which protects the values of the international legal order –​the principle of sovereign equality seems to be an obvious candidate. At the same time, there are certain characteristics of the principle of sovereign equality that contribute to confusion concerning its jus cogens status. These include the nature of sovereign equality as a composite principle, the possibility of the content of the principle changing over time, and of deviations to sovereign equality through State consent. These possible hurdles to recognition of the peremptory status of sovereign equality are discussed in detail in the next section. 4.1 Sovereign Equality as a Composite Principle The nature of sovereign equality as a collection of capacities, rights and duties may complicate its conceptualisation as a jus cogens rule. As noted above, the ilc’s lists of peremptory norms have lately been restricted to prohibitive rules of international law. It may then be more likely for particular elements of sovereign equality to be recognised as jus cogens norms than the principle itself. For instance, the ilc has recognised the prohibitions of the use of force88 and aggression as peremptory,89 while simultaneously excluding sovereign equality. At the same time, the opposite view has been expressed –​that is, that the principle of sovereign equality itself bears jus cogens status, and not its constituent elements. For instance, Mr. Bartos of the ilc during the Commission’s work on the Draft Articles on the Law of Treaties, argued against the recognition of the requirement of consent to treaty obligations as a rule of jus cogens. Instead, according Mr. Bartos, the principle of sovereign equality itself bore peremptory status, while the requirement of treaty consent was merely derivative of this.90 This confusion is reflected in disagreement concerning whether a reference to sovereign equality automatically includes its constituent elements. The icj has recently considered what is denoted by a treaty provision protecting “the principle of sovereign equality”. The question that arose is whether the principle obliges parties to respect the various rights and duties that are derived from it, or a more abstract understanding of the principle itself?

88 89 90

Second Waldock Report (above note 74), at 53. Paragraph 4 of the Commentary to Draft Article 40 of Commentary on Draft Articles on State Responsibility (above note 76). Bartos (A/​c n.4/​s r.878), at 233.

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In the Immunities and Criminal Proceedings, Preliminary Objections, the Court was tasked with interpreting Article 4 of the Palermo Convention,91 entitled “Protection of Sovereignty”.92 Article 4(1) provides as follow: States Parties shall carry out their obligations under this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non‑intervention in the domestic affairs of other States. Equatorial Guinea, the applicant, argued that this meant that the obligations under the treaty had to be performed consistently with customary international law rules on State immunity, which “flow directly” from the principles of sovereign equality and non-​intervention in Article 4(1) of the treaty. France, as respondent, argued that Article 4 merely recalled certain fundamental principles of international law, and did not establish any substantive obligation. The majority held that Art. 4 did indeed establish an obligation for parties to “perform their obligations in accordance with the principle … of sovereign equality”, and was not merely a hortatory or preambular provision.93 Further, the Court recognised that “the rules of State immunity derive from the principle of sovereign equality of States”,94 as it had held previously in the Jurisdictional Immunities case.95 Nonetheless, the Court rejected Equatorial Guinea’s interpretation: Article 4 does not refer to the customary international rules, including State immunity, that derive from sovereign equality but to the principle of sovereign equality itself. Article 4 refers only to general principles of international law. In its ordinary meaning, Article 4 (1) does not impose, through its reference to sovereign equality, an obligation on States parties to act in a manner consistent with the many rules of international law which protect sovereignty in general, as well as all the qualifications to those rules.96

91 92 93 94 95 96

Article 4 of the 2000 United Nations Convention against Transnational Organized Crime. Immunities and Criminal Proceedings (Equatorial Guinea v. France), (Preliminary Objections), icj Reports 2018, 292. Id., at para 92. Declaration of Judge Crawford in this case emphasizes the substantive nature of this provision, at para. 4. Id., at para. 93. Jurisdictional Immunities of the State (above note 23). Immunities and Criminal Proceedings (above note 92), at para. 93.

730 Woolaver The majority did not specify what was entailed by the obligation to act in accordance with “the principle of sovereign equality itself”, distinct from the rules such as immunity that are derived from it. A joint dissenting opinion, in contrast, argued that “the immunity of States is the quintessence of a rule of customary international law that reflects the principle of sovereign equality of States.” As such, if parties carried out their obligations under the Palermo Convention in a way that violated customary international law on State immunity, this would be a violation of the Convention obligation to act consistently with sovereign equality. According to the dissent, “Article 4 (1) should be interpreted as requiring States parties to carry out their obligations under the Convention in a manner consistent with the customary rules governing State immunity, reflected in the principle of sovereign equality of States, in order to achieve the co‑operation necessary to combat transnational organized crime.”97 The effect of the majority decision is to remove any specific content from a treaty obligation to act in accordance with sovereign equality. The Special Rapporteur on General Principles of International Law, for instance, described the icj’s ratio as follows: “At least some of these principles appear as norms of a broad character that do not necessarily imply any specific obligation to act in a manner which protects their general thrust.”98 If this is correct, though, it is unclear what content such an obligation has. How does one act in accordance with “sovereign equality itself”, if not to respect the constituent elements of which it is composed? This would also seem to cut against the icj’s insistence that the treaty provision was specific and substantive, rather than the respondent’s view that it was simply a provision expressing a general aim without precise content. Further, it results in some uncertainty as to what the icj would consider to be protected by the potential jus cogens principle of the sovereign equality of States. In any event, putting aside the debate concerning the contours of sovereign equality, it is clear that composite norms or principles may bear peremptory status. Other widely accepted peremptory norms share the composite nature of the principle of sovereign equality, even if less apparent at first glance. The prohibition of the use of force, for instance, may be conceived as a composite principle denoting a number of important rules of international law, including: the right to territorial integrity and political independence; the right to 97 98

Id., Joint Dissenting Opinion of Vice-​President Xue, Judges Sebutinde and Robinson and Judge ad hoc Kateka, at para. 33. Second Report of Special Rapporteur (Marcelo Vázquez-​Bermúdez) on General Principles of Law (A/​c n.4/​732) (2020), at para. 169.

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self-​defence; and the rules relating to the legality of Security Council action to combat threats to international peace and security under Chapter vii of the United Nations Charter.99 Thus, a distinction between “rules” such as the ban on force as opposed to “principles” such as sovereign equality is ultimately superficial. What is crucial is sufficient evidence of general recognition of the norm –​including an agreement as to its content –​by States that it is peremptory norm, rather than characterization of the norm as a prohibitive rule. 4.2 The Changeable Content of Sovereign Equality It could also be argued that the principle of sovereign equality may not be recognised as jus cogens because its content is subject to change and evolution; to repeat the pcij’s description in 1923 quoted above, the protected core of sovereignty “depends on the development of international relations”.100 It may be thought that the malleable content of the principle militates against its peremptory status.101 For instance, certain commentators have argued against the jus cogens nature of the prohibition of the use of force due to its adaptability.102 This would be to misunderstand the nature of peremptory norms. It is clear that jus cogens rules can be formed, evolve, and even disappear over time. This is apparent from the ilc’s definition of peremptory norms, which indicates that peremptory norms can be modified “only by a subsequent norm of general international law having the same character.”103 Further, the ilc also provides that “[i]‌f a new peremptory norm of general international law (jus cogens) emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”104 The possibility of the emergence of new, and modification 99

100 101 102 103 104

See, e.g., Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006), at 51; Carin Kahgan “Jus Cogens and the Inherent Right to Self-​Defense” (1997) 3 ilsa Journal of International and Comparative Law 767, at 777–​81; James Green “Questioning the Peremptory Status of the Prohibition of the Use of Force” (2011) 32(2) Michigan Journal of International Law215, at 229–​236. Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion (1923), Permanent Court of International Justice 1923 Ser. B, No 4, at 24. On modification of jus cogens norms in this volume see Mehrdad Payandeh “Modification of Peremptory Norms of General International Law” (Chapter 5). See, eg, Green (above note 99), at 229–​236. See also Conklin “The Peremptory Norms of the International Community” (2012) 23 European Journal of International Law 837, at 838 discussing the claimed “permanence” of peremptory norms. Draft Conclusions 3 and 14 of the Draft Conclusions on Peremptory Norms of General International Law (Jus Cogens), Report of the International Law Commission, Seventy-​ First Session, General Assembly Official Records (A/​74/​10) (2019), Chapter v. Id., Draft Conclusion 10.

732 Woolaver of existing, peremptory norms is clear, for instance, from the evolution of the prohibition of the aggression. Da Luna, member of the ilc during its work on the Draft Articles on the Law of Treaties, noted in 1966 that “treaties could play a part in the emergence of [peremptory] rules” noting that a “famous example was the Pact of Paris of 1928 and the subsequent emergence of a rule of jus cogens banning aggressive war as an international crime” which was “a radical departure from the traditional concept of the sovereign right of States to wage war.”105 Thus, it is clear that peremptory norms can evolve in their content over time. What is required is that the new form of the norm is itself recognised as peremptory norm of general international law. Should the scope of sovereign equality expand or retract over time, this in itself is no barrier to its recognition as a jus cogens rule. 4.3 Derogations from Sovereign Equality through Consent The recognition of sovereign equality as a peremptory norm may give rise to particular difficulties concerning the capacity for States to delegate aspects of their sovereignty through consent. This could be conceived of as a derogation from sovereign equality, contrary to the non-​derogable character of jus cogens rules. As indicated in Article 53 of the vclt, any treaty conflicting with a jus cogens rule is void. However, as discussed below, the pcij and icj have consistently held that delegations of aspects of a State’s sovereignty to another State or international organisation constitute an exercise of sovereignty, rather than a deviation therefrom. There are a range of current treaty arrangements that may be viewed as deviations from sovereign equality. Several international organisations, including the UN, contain organs that are able to impose binding obligations on Member States without the unanimous consent of all Member States. It has been argued that the imposition of such obligations, without the consent of every Member State, violates sovereign equality.106 The most obvious example is the unsc, which, when acting under Chapter vii, can bind all UN Member States, despite the limited membership of the unsc, and the weighted voting procedure giving Permanent Members a veto over any non-​procedural Resolution.107 While majority voting has been generally accepted as compatible with the sovereign 1 05 A/​ c n.4/​s er.A/​1966, at 231. 106 E.g., Ulrich Preuss “Equality of States-​Its Meaning in a Constitutionalized Global Order” (2008) 9 Chicago Journal of International Law. 17, at 42; Simpson (above note 9), at 48, 193; Broms (above note 64), at 270. 107 Art23, 25, 26, 41, 42 of the United Nations Charter.

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equality,108 weighted voting and the existence of an exclusive organ with binding authority remain controversial. Simpson, for instance, argues that “legislative equality” requires that all members have equally weighted votes and equal representation in the decision-​making processes of international bodies,109 and therefore while “… legislative equality, the equal power to make or influence international law … finds some measure of protection in the General Assembly’s powers … [it] is severely compromised in the governing principles of the Security Council.”110 Similarly, Broms argues the provisions of Chapter vii of the UN Charter are “against the legal equality of States.”111 Baker asserted that even the much weaker rights of Council membership in the League of Nations demonstrated the invalidity of the principle of the equality of States.112 Several commentators therefore describe the position of the unsc Member States as leading to the “abandonment”113 or “surrender”114 of the principle. Despite the clear inequalities between UN Member States resulting from unsc membership and voting rights, such inequalities of rights can be reconciled with sovereign equality.115 The traditional justification is voluntaristic, that is, that States have exercised their sovereign right to consent to the imposition of obligations by the organ in question, and the voting procedure used by that organ, by agreeing to be bound by the constituent treaty of the international organisation. As emphasised by the pcij in The Wimbledon, the assumption of treaty obligations is an exercise, not an abandonment of sovereignty, even if this “places a restriction upon the exercise of the sovereign rights of the State”.116 Thus, Oppenheim argued that State equality requires that the vote of all Member States be of the same weight in international organisations, except where States have consented to an alteration of this procedure.117 If States do 108 Majority voting was first employed at the Second Hague Peace Conference (1907), see Broms (above note 64), at 108). 109 Simpson (above note 9), at 48. 110 Id, at 193. 111 Broms (above note 64), at 270. 112 Baker “The Doctrine of Legal Equality of States” (1923) 4 British Yearbook of International Law 1, at 17–​18. 113 Ann Thomas and A.J. Thomas “Equality of States in International Law-​Fact or Fiction” (1951) 37 Virginia Law Review 791, at 815. 114 Corbett (above note 40), at 512. 115 See Dissenting Opinion of Judge Weeramantry in Nuclear Weapons (above note 22), at 526, distinguishing “structural inequalities … built into the international constitutional system” from the introduction of “inequalities into the corpus of substantive law by which all nations alike are governed”, arguing the latter, but not the former are prohibited by the principle of sovereign equality of States. 116 The Wimbledon (above note 37), at 35. 117 Lassa Oppenheim International Law (First Edition, Green and Co., 1906), at 197.

734 Woolaver not wish to be bound, for example, by unsc obligations, or the weighted voting procedure of the imf, they need not give their consent to the constituent treaties of the organisation. It seems that as long as a State can withdraw from a treaty regime, as UN Member States can, voluntary consent to unequal rights in treaty regimes is all that is needed to maintain consistency with the principle of the sovereign equality. For instance, the icj has upheld the validity of treaty-​based protectorates and capitulations as compatible with State sovereignty, even though such treaty regimes involve the exercise of sovereign functions by another State. In Rights of US Nationals in Morocco (1952), the icj held: Under [the Treaty of Fez 1912 between France and Morocco], Morocco remained a sovereign State but it made an arrangement of a contractual character whereby France undertook to exercise certain sovereign powers in the name and on behalf of Morocco, and, in principle, all of the international relations of Morocco.118 Since this judgment post-​dates the UN Charter, the icj must have considered such treaties to be consistent with the principle of sovereign equality in the Charter, for Morocco to have “remained a sovereign State” in the face of these treaties. Thus, even highly unequal treaty regimes may be consistent with the principle of equality of States, if undertaken with the revocable consent of the State.119 The inequality of rights established in the UN Charter regarding the position of the unsc, and similar arrangements in other international organisations, can therefore be justified on voluntaristic grounds. While the voluntaristic justification is rejected by some commentators as “sophistic”,120 “juristic casuistry”,121 or a “fiction”,122 it remains valid. It is widely accepted that sovereign equality is not violated when States acquire different rights and duties through consenting to different sets of treaty and customary obligations since “[i]‌t is the exercise of [States’] equal sovereignties which

118 Case Concerning Rights of Nationals of the United States of America in Morocco, (Merits), icj Reports 1952, p. 176, at 188. 119 Edwin Dickinson The Equality of States in International Law (Harvard, 1920), at 335–​36, seems correct to conclude, therefore, that the “proper application [of the equality of States] is limited to rules of conduct and to the acquiring of rights and assuming of obligations under those rules. It is inapplicable from its very nature to the rules of organisation.” 120 Simpson (above note 9), at 193. 121 Corbett (above note 40), at 512. 122 Kelsen (above note 10), at 210.

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has resulted in their unequal rights and duties.”123 This applies equally to the exercise of the State’s agreement to be bound by decisions of organs of international organisations if they so choose, and from which they can withdraw if they so choose. There are similar considerations related to elements of sovereign equality which have independently achieved recognition as peremptory norms, particularly the prohibitions of the use of force and of intervention. It could be argued that, if these are indeed jus cogens norms, States cannot give valid consent to forcible or non-​forcible intervention in their territories, given the invalidity of consent to breach of jus cogens rules.124 Further, consent of the State cannot preclude the wrongfulness of the violation of the rule by another State.125 However, this does not have the result that States cannot give effective consent to the use of force or intervention. As identified by the ilc, a distinction must be drawn in relation to jus cogens rules which have a consent element built into the rule itself: Some peremptory norms contain an “intrinsic” consent element. For example, the rule relating to the non-​use of force in international relations embodied in Article 2, paragraph 4, of the Charter of the United Nations does not apply in certain cases where one State has consented to the use of force on its territory by another State. But one State cannot by consent eliminate the rule relating to the use of force in international relations in its relations with another State. Thus it may be necessary to distinguish between a consent which applies Article 2, paragraph 4, which may be valid, and a purported consent which displaces or excludes it entirely, which, if Article 2, paragraph 4, is peremptory in character, would be invalid.126 Thus, States may consent to the use of force and/​or intervention, despite the jus cogens status of such rules (either in and of themselves or as elements of sovereign equality), because the requirement of consent is intrinsic to the

1 23 Warbrick (above note 29), at 206. 124 See discussion in Robert Kolb Peremptory International Law Jus Cogens: A General Inventory (Hart, 2015), at 74. 125 Commentary on Draft Article 26 of the ilc Draft Articles on State Responsibility (above note 76), at para. 6. 126 Second Report of Special Rapporteur (James Crawford) on State Responsibility (A/​c n.4/​ 498 and Add.1–​4) (1999), at 242(b).

736 Woolaver prohibition itself.127 It is clear then, that the ability to consent to derogations from sovereign equality does not preclude its peremptory status. 4.4 Conditions of Consent to Derogations from Sovereign Equality If it is accepted that States may consent to deviations from their sovereign equality, for instance by delegating certain aspects of their sovereignty to international organisations, or by permitting forcible intervention in their territory, then it is crucial that the State’s consent is obtained freely. Given the jus cogens status of the principle of sovereign equality, or at least certain of its elements, the conditions of valid consent to such deviations should be carefully defined. If the consent is obtained through coercion, then this constitutes a violation, rather than an exercise, of the State’s sovereign equality. This issue arose during the drafting of the Vienna Convention on the Law of Treaties in relation to several provisions, particularly that concerning the invalidity of treaty consent obtained by the use of force. The vclt included a provision, ultimately Article 52, which established that “A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.” This provision, as argued by Special Rapporteur Lauterpacht in his first report on the law of treaties had the effect of “codifying, not developing” international legal developments which had crystallised since the renunciation and prohibition of the use of force in the Kellogg-​Brian Pact, the Covenant of the League of Nations and the UN Charter.128 Several State delegations characterized this rule as crucial to the protection for the principle of sovereign equality.129 While there was consensus concerning the invalidity of treaty consent obtained through illegal force, there was extensive debate concerning the 127 See, e.g. Oliver Dörr and Albrecht Randelzhofer “Article 2(4)” in Bruno Simma, Daniel-​ Erasmus Khan, Georg Nolte, Andreas Paulus, and Nikolai Wessendorf (eds.) The Charter of the United Nations: A Commentary: Vol i (Third Edition, Oxford, 2012), at para. 33. But, see Federica Paddeu “Military Assistance on Request and General Reasons Against Force: Consent as a Justification for the Use of Force” (2020) 7(2) Journal on the Use of Force (forthcoming) arguing against the “mainstream” interpretation of Article 2(4) force as prohibiting the non-​consensual use of force. 128 First Report of Special Rapporteur (Hersch Lauterpacht) on the Law of Treaties (A/​c n.4/​ 63) (1953), at 151.See also Mr El-​Erian (A/​c n.4/​s r.681), at 51, agreeing that prior to the Covenant of the League, it was generally accepted that “the validity of a treaty was not affected by the fact that it had been brought about by the threat or use of force.” 129 Eg, United Nations Conference on the Law of Treaties, First Session, General Assembly Official Records (A/​c onf.39/​11) (1966): Cyprus at 279, ussr at 280, Poland 281, Guinea at 288, Kenya at 289, Italy at 291.

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scope of the meaning of “force” in this context. A group of developing States had supported the “19 State Amendment” which sought to define force to include economic and political coercion, arguing that treaties entered into as a result of any form of coercion constituted a violation of sovereign equality.130 Another group of mostly Western and developed States supported the position put forward by Special Rapporteur Waldock that force invalidating treaty consent was confined to armed force, arguing that a broader interpretation would mean that “the door to the evasion of treaty obligations might be opened very wide”.131 Further, Waldock argued that political and economic pressure “is part of the normal working of the relations between States and international law does not yet seem to contain the criteria necessary for formulating distinctions between the legitimacy and illegitimate uses of such forms of pressure as a means of securing consent to treaties.”132 Thus, though he accepted that “some forms of ‘unequal’ treaty brought about by coercion of the State must be regarded as lacking essential validity”, coercion must be confined to the illegal use or threat of force.133 This disagreement, which echoed similar debates concerning the meaning of “force” prohibited in Article 2(4) of the UN Charter during the drafting of the Friendly Relations Declaration,134 threatened to derail the consideration of the provision. In order to bridge the gap between the different groups of States, the Netherlands proposed the inclusion of a Declaration emphasizing the importance of uncoerced consent for the principle of sovereign equality.135 The declaration “condemns the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the

130 Amendment proposed by Afghanistan, Algeria, Bolivia, Congo (Brazzaville), Ecuador, Ghana, Guinea, India, Iran, Kenya, Kuwait, Mali, Pakistan, Sierra Leone, Syria, United Arab Republic, United Republic of Tanzania, Yugoslavia and Zambia (A/​c onf.39/​C.l/​ L.67/​Rev.l/​Corr.l): “A treaty is void if its conclusion has been procured by the threat or use of force, including economic or political pressure, in violation of the principles of the Charter of the United Nations.” 131 Second Waldock Report (above note 74), at 52. 132 Ibid. 133 Ibid. 134 See First Report of the Special Committee on Principles of International Law concerning Friendly Relations and Co-​operation among States (above note 71), at paras 47-​63. 135 Final Act of the United Nations Conference on the Law of Treaties (A/​c onf.39/​26) (1969), Annex at 281. The 1969 conference also adopted a resolution to disseminate the Declaration.

738 Woolaver sovereign equality of States and freedom of consent”.136 This was ultimately adopted by consensus and included in the Final Act of the Conference, inducing the withdrawal of the 19 State Amendment. The Convention therefore is arguably left ambiguous as to the effect of political or economic coercion on the validity of treaty consent. Indeed, this appears to have been the ilc’s intended outcome. As noted in the Commentary on Draft Article 49, which became Art 52: Some members of the Commission expressed the view that any other forms of pressure, such as a threat to strangle the economy of a country, ought to be stated in the article as falling within the concept of coercion. The Commission, however, decided to define coercion in terms of a “threat or use of force in violation of the principles of the Charter”, and considered that the precise scope of the acts covered by this definition should be left to be determined in practice by interpretation of the relevant provisions of the Charter.137 Currently, the continued understanding of the prohibition of force in the UN Charter includes only military, rather than economic or political, force. However, as noted above, this may change if States comes to recognise economic or political coercion as a form of prohibited force as a rule of general international law from which no derogation is permitted –​which would then expand the range of circumstances in which State consent would be vitiated

136 Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties: The United Nations Conference on the Law of Treaties, Upholding the principle that every treaty in force is binding upon the parties to it and must be performed by them in good faith, Reaffirming the principle of the sovereign equality of States, Convinced that States must have complete freedom in performing any act relating to the conclusion of a treaty, Deploring the fact that in the past States have sometimes been forced to conclude treaties under pressure exerted in various forms by other States, Desiring to ensure that in the future no such pressure will be exerted in any form by any State in connexion with the conclusion of a treaty, 1. Solemnly condemns the threat or use of pressure in any form, whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent, 2. Decides that the present Declaration shall form part of the Final Act of the Conference on the Law of Treaties. 137 Commentary on Draft Article 49 of the Draft Articles on the Law of Treaties (above note 73).

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due to ‘coercion’. This ambiguity is unfortunate given the crucial role of free consent for the protection of the sovereign equality of States. 5

Conclusion

To conclude, sovereign equality is recognised as one of the bedrock principles of the modern international legal system. It sets the framework for the nature of international law itself as a consent-​based system between equal legal subjects. It protects the core entitlements of statehood, primarily the territorial integrity and political independence of all States, regardless of material inequalities and political realities that persist in international society. Its effectively universal acceptance may be thought to make it a prime candidate for recognition as a peremptory norm of general international law –​but this remains controversial. It has been argued above that this may be due to particular characteristics of the principle of sovereign equality that make its peremptory status superficially problematic. These include its nature as a composite principle, its changeable (and debated) content, and the possibility of consent-​based derogations from sovereign equality. However, it has been shown that these barriers can be reconciled with peremptory status, and indeed that many accepted jus cogens rules share these characteristics. The only remaining question, then, as with any rule is whether there is sufficient recognition of the norm among States as a non-​derogable rule of general international law, and whether it protects the fundamental values of the international legal system. While a more detailed examination of current State recognition would be necessary for a definitive answer, the inclusion of the principle in numerous key treaties, most importantly the UN Charter, its repeated reaffirmation in judicial decisions, and academic writings indicate that the prima facie answer is yes. Nonetheless, it has been demonstrated above that the conditions of lawful consent to otherwise unlawful intrusions into the State’s domestic jurisdiction is a crucial protection for the principle of sovereign equality –​and that ambiguity remains as to the scope of the coercion which vitiates such consent. The centrality, and putatively peremptory nature, of the principle of sovereign equality warrant greater clarity. Arguably, a broad interpretation of coercion which is protective of the peremptory norm is warranted, but, as discussed above, this has not yet been accepted in international practice.

Chapter 26

A Jus Cogens Human Rights Exception to Head of State Immunity Fact, Fiction or Wishful Thinking? Kobina Egyir Daniel 1 Introduction* In an article, which seems at first blush to be devoid of nuance, Bassiouni asserts that: International crimes that rise to the level of jus cogens constitute obligatio erga omnes which are inderogable. Legal obligations which arise from the higher status of such crimes include the duty to prosecute or extradite, the non-​applicability of statutes of limitations for such crimes, the non-​ applicability of any immunities up to and including Heads of State. …1 The seeming categorical assertions notwithstanding, the issue on which Bassiouni opines is anything but settled. The question of whether or not continued recognition of immunity for Heads of State or other high-​ranking officials must yield to accountability for violations of jus cogens human rights norms has engaged no shortage of scholars. It has stimulated considerable and passionate debate and has produced streams of ink in many publications.2 As * This Chapter is adapted from the author’s doctoral thesis (forthcoming monograph) Head of State Immunity under the Malabo Protocol: Triumph of Impunity over Accountability? 1 M Cherif Bassiouni “International Crimes: ‘Jus Cogens’ and ‘Obligatio Erga Omnes’ ” (1996) 59 Law and Contemporary Problems 63, at 67. Bassiouni acknowledges challenges in determining jus cogens and in identifying elements of a peremptory norm, as well as challenges in determining priority over competing or conflicting norms. 2 See for example Andrea Bianchi “Immunity versus Human Rights: The Pinochet Case” (1999) 10 European Journal of International Law 237; Dapo Akande and Sangeeta Shah “Immunities of State Officials, International Crimes, and Foreign Domestic Courts” (2010) 21 European Journal of International Law 815; Dire Tladi “The Immunity Provision in the au Amendment Protocol, Separating the (Doctrinal) Wheat from the (Normative) Chaff” (2015) 13 Journal of International Criminal Justice 3; Liam Elphick “State Consent and ‘Official Acts’: Clearing The Muddied Waters of Immunity Ratione Materiae for International Crimes” (2016–​2017) 41 University of Western Australia Law Review 275; Brian Man-​Ho Chok “The Struggle between the

© Koninklijke Brill NV, Leiden, 2021 | DOI:10.1163/9789004464124_027

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Bassiouni himself acknowledges, the effect of jus cogens norms and the consequences of their breach would be subject to disagreements informed by the philosophical premises of scholars and differences on values such as the primacy of human rights and the preservation of the world order.3 Indeed, the fact that the International Law Commission (ilc) had occasion to consider various aspects of State and Sovereign immunity at its very first meeting in 1949,4 has considered it multiple times since, and is still seized with the subject of immunity, attests to its profound complexity and defiance of easy resolution.5 The presentation in 2016 –​by the ilc’s Special Rapporteur on the immunity of State Officials from foreign criminal jurisdiction –​of a draft article which seeks to bar any possibility of invoking immunities in respect of identified jus cogens crimes6 and the explosive debate in the Commission before and Doctrines of Universal Jurisdiction and Head of State Immunity” (2013–​2014) 20 University of California, Davis Journal of International Law and Policy 233; Rosanne Van Alebeek The Immunities of States and their Officials in International Criminal Law and International Human Rights Law (Oxford, 2008). 3 Bassiouni (above note 1), at 67. 4 The ilc Secretariat prepared a survey of international law before the Commission’s very first sitting in 1948, a section of which survey was titled “Jurisdiction over foreign States.” This, according to Kolodkin, covered “the entire field of jurisdictional immunities of States and their property, of their public vessels, of their sovereigns, and of their armed forces.” See Preliminary Report of the Special Rapporteur (Roman Kolodkin) on Immunity of State Officials from Foreign Criminal Jurisdiction (A/​c n.4/​601) (2008), at para 6. 5 At its fifty-​eighth session, in 2006, the ilc endorsed inclusion “Immunity of State officials from foreign criminal jurisdiction” in its long-​term work programme. The ilc has since appointed two Special Rapporteurs –​Roman Kolodkin from 2007 to 2011, and Concepción Escobar Hernández from 2012 to present. For further detail, see Chapter 2 of Kolodkin Preliminary Report (above note 4). 6 Fifth Report of the Special Rapporteur (Concepción Escobar Hernández) on immunity of State officials from foreign criminal jurisdiction (A/​c n.4/​701) (2016), at Annexes 1 –​3 at 96 –​ 99. The proposed text of Draft Article 7 was: Draft article 7 Crimes in respect of which immunity does not apply 1. Immunity shall not apply in relation to the following crimes: (i) Genocide, crimes against humanity, war crimes, torture and enforced disappearances; (ii) Corruption-​related crimes; (iii) Crimes that cause harm to persons, including death and serious injury, or to property, when such crimes are committed in the territory of the forum State and the State official is present in said territory at the time that such crimes are committed. 2. Paragraph 1 shall not apply to persons who enjoy immunity ratione personae during their term of office.

742 Daniel after adoption of a modified version from the Drafting Committee7 suggests that the contestation is far from over.8 Dissenters, including Commissioners Huang,9 Kolodkin,10 Murphy,11 and Wood12 were particularly scathing of the Special Rapporteur’s scholarship, and Rajput13 and Nolte,14 who had respectively chaired the drafting committee and the ilc meeting also declined to support it. If the point of the proposed provision was to present a foundation for a future treaty or to generate soft law that crystallizes over time, as ilc draft articles have tended to be,15 then it is clear that there remains yet a long road



3. Paragraphs 1 and 2 are without prejudice to: (i) Any provision of a treaty that is binding on the forum State and the State of the official, under which immunity would not be applicable; (ii) The obligation to cooperate with an international tribunal which, in each case, requires compliance by the forum State 7 Statement by the Chair of Drafting Committee, Mr Rajput, (A/​c n.4/​s r.3378) (2017). The draft Article 7 adopted by the ilc was: Draft article 7 Crimes under international law in respect of which immunity ratione materiae shall not apply: 1. Immunity ratione materiae from the exercise of foreign criminal jurisdiction shall not apply in respect of the following crimes under international law: (a) crime of genocide; (b) crimes against humanity; (c) war crimes; (d) crime of apartheid; (e) torture; (f) enforced disappearance. 2. For the purposes of the present draft article, the crimes under international law mentioned above are to be understood according to their definition in the treaties enumerated in the annex to the present draft articles. 8 Report of the International Law Commission, Sixty-​Ninth Session, General Assembly Official Records (A/​72/​10) (2018), Chapter vii. Unusually, the Commission’s adoption –​of the footnotes to Part Two Immunity ratione personae and to Part Three Immunity ratione materiae, Draft Article 7 and the Annex, together with commentaries thereon –​was by a recorded vote: twenty-​one in favour, eight against and one abstention. 9 A/​ c n.4/​s r.3378 at 10–​11. 10 A/​ c n.4/​s r.3378 at 9. 11 A/​ c n.4/​s r.3378), at 9–​10. 12 A/​ c n.4/​s r.3378 at 10. 13 A/​ c n.4/​s r.3378), at 12. 14 A/​ c n.4/​s r.3378 at 12–​13. 15 Pavel Šturma “The International Law Commission Between Codification, Progressive Development, or a Search for a New Role” (2019) 13 Florida International University Law Review 1125, at 1126–​1127.

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to travel. The acerbic criticism arising from analysis of the draft article belies auspicious beginnings.16 As a contribution to the debate, this Chapter proposes to examine the claim –​also recently made by the International Criminal Court (“icc”)17 –​that strides made in human rights and international criminal law collectively serve to vanquish any claims under customary international law to immunity for Heads of State and high-​ranking officials who commit international crimes. The volume of which this Chapter is a part being on peremptory norms, it is unnecessary to present a definition of jus cogens or its philosophical underpinnings, however brief. I propose instead to proceed directly to present the arguments proffered to justify a jus cogens exception to immunity for Heads of State and high-​ranking officials and examine whether the tendered arguments and state practice do indeed sustain such an exception to the doctrine. I conclude with a review of some recent developments on the subject. Current international law on immunities will be derived from, among others, cases where immunities have been invoked in both civil and criminal proceedings before the domestic courts of foreign States and from cases before international courts.18 While some scholars have argued that the civil cases are of limited utility as authorities for the application of immunities in criminal proceedings,19 the position adopted in this chapter is that the logic undergirding the judgments relied upon would also apply to invocation of immunity in cases of individual criminal responsibility in international criminal law. 2

The Case for a Jus Cogens Exception to Sovereign Immunity and Immunity for Heads of State and Other High-​Ranking Government Officials

In the last century, the principle of sovereign immunity has undergone significant evolution from the absolute immunity that attached to the State, its 16 17 18 19

Rosanne van Alebeek “The ‘International Crime’ Exception to the ilc Draft Articles on the Immunity of State Officials from Foreign Criminal Jurisdiction: Two Steps Back?” 2018 American Journal of International Law Unbound 27. The Prosecutor v. Omar Hassan Ahmad Al-​Bashir, Judgment of the International Criminal Court in the Jordan Referral re Al-​Bashir Appeal, 6 May 2019, at Annex 1 –​Joint Concurring Opinion of Eboe-​Osuji, Morrison, Hofmanski and Bossa. See for instance Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), icj Reports 2002, at 3. Third Report of the Special Rapporteur (Dire Tladi) on Peremptory Norms of General International Law (Jus Cogens) (A/​c n.4/​714) (2018).

744 Daniel sovereigns and other representatives to the more restrictive immunity that has been affirmed by the Tate Letter20 and Sovereign Immunity Acts of various countries. Thus does Judge Abdulqawi Yusuf note in the Jurisdictional Immunities of the State Case that: Immunity is not an immutable value in international law. Its adjustability to the evolution of the international society, and its flexibility, are evidenced by the number of exceptions built gradually into it over the past century, most of which reflect the growing normative weight attached to the protection of the rights of the individual against the State, be that as a private party to commercial transactions with the State or as a victim of tortious acts by State officials. This is not to say that the importance of immunity to the stability of relations among States or to the orderly allocation and exercise of jurisdiction in proceedings concerning States has been weakened. Immunity continues to perform those functions, despite the growing number of exceptions.21 It is to the referenced exceptions –​for commercial activity and for tortious acts or inactions of State officials, which have evolved as carve-​outs from the doctrine of absolute immunity –​that human rights advocates seek to add a third: an exception for violations of jus cogens human rights norms. The immunity of the State which sprung from the notional equality of States22 and shielded its representatives has over time yielded different types of immunity, some of which have been codified in multilateral treaties but some of which derive their force from customary international law. Immunities undergirding consular relations23 and for diplomats24 are provided for in treaties while immunities of Heads of State and other high-​ranking officials are governed by customary international law.

20

21 22 23 24

Letter of Jack B. Tate, Acting Legal Adviser, Department of State, to Acting Attorney Gen. Philip B. Perlman (May 19, 1952), reprinted in (1952) 26 Department of State Bulleting 984. The letter telegraphed US adoption of a restrictive approach which would recognize immunity for a State’s public but not commercial acts. Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), icj Reports 2012, Dissenting Opinion of Judge Yusuf, at para 35. The Schooner Exchange v. McFaddon, Judgement of the United States Supreme Court, 24 February 1812, at 137. See in this volume Hannah Woolaver “Sovereign Equality as a Peremptory Norm of General International Law” (Chapter 25). 1963 Vienna Convention on Consular Relations. 1963 Vienna Convention on Diplomatic Relations.

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Contemporary international law recognizes two types of immunities for officials of a State,25 both also deriving from the sovereignty of a State and its jurisdictional immunities. The one is immunity ratione personae, or personal immunity, which attaches to the person of officials who occupy a limited number of defined high offices. It accrues because of the office they hold rather than their actions and therefore applies, during incumbency, to both personal and official acts.26 The other, immunity ratione materiae, is a functional immunity that is founded on the Act of State doctrine and insulates persons acting in their official capacities from liability.27 Post incumbency, immunity ratione materiae also avails former beneficiaries of immunity ratione personae for official actions.28 Unlike immunity ratione personae, functional immunity attaches not to the office a person occupies but for acts attributable to the State and suffers no temporal limitations. This would explain efforts by human rights advocates to limit its application in order to counter impunity. The increasing focus of the international legal system on ensuring accountability for egregious human rights violations (particularly in times of war and civil conflict) in a world with a serious dearth of accountability measures for such, has led inexorably to calls for States to consent to some limitations on their sovereignty.29 Under the rubric of such noble objectives as assuaging the public conscience in the face of assaults on laws of humanity, courts in various countries have also sought to compel accountability by applying innovative exceptions to the principle of sovereign immunity.30 There is consensus that jus cogens norms command peremptory authority31 and supersede not just conflicting treaties but also customary international 25

Dapo Akande “International Law Immunities and the International Criminal Court“ (2004) 98 American Journal of International Law 407, at 409–​412. 26 Arrest Warrant case (above note 18), at paras. 54-​55. See also Thomas Weatherall “Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence” (2015) 46 Georgetown Journal of International Law 1151, at 1157–​1159. 27 Joanne Foakes The Position of Heads of State and Senior Officials in International Law (Oxford, 2014), at 7–​10. 28 Article 1(b)(iv) of the 2004 UN Convention on the Jurisdictional Immunities of States and their Property defines State to include ‘representatives of the State acting in that capacity.’ 29 Michael Tunks “Diplomats or Defendants? Defining the Future of Head of State Immunity” (2002) 52 Duke Law Journal 651, at 656. 30 Foakes (above note 27), at 7–​9. 31 Dire Tladi “Jus Cogens” Annex to the Report of the International Law Commission, Sixty-​ sixth Session, General Assembly Official Records (A/​69/​10) (2015). See also Christian Tomuschat “Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes –​ Concluding Observations” in Christian Tomuschat and Jean-​Marc Thouvenin (eds.) The Fundamental Rules of the International Legal Order (Martinus Nijhoff, 2006).

746 Daniel law.32 Indeed, the application of peremptory norms by the UN Human Rights Committee to invalidate amnesties for international crimes is a testament to the force of jus cogens.33 The notion therefore that perpetrators of egregious violations of human rights may escape accountability –​through such theories of quaint origin as immunity founded on the sovereign’s dignity34 –​invokes passionate reaction.35 As State immunities for jus cogens crimes fall, so fall away immunities that Heads of State and other representatives of States may claim –​the argument goes. Legal constructs presented to highlight the superior nature of jus cogens norms over sovereign immunity were articulated comprehensively in the case of Prefecture of Voiotia v. Federal Republic of Germany36 where the Greek Prefecture instituted action against Germany in a Greek court for damages for the Distomo Massacre perpetrated by German occupying forces in June 1944.37 In dismissing Germany’s invocation of immunity, the Court traced a history of nullification of immunities in the face of breaches of jus cogens norms to the Nuremberg trials and presented instances in which the cloak of sovereign immunity would not avail a State. These bear repeating in their entirety. Per the Court: a) When a state is in breach of peremptory rules of international law, it cannot lawfully expect to be granted the right of immunity.

32 Chapter iii of Part ii of the Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission, Fifty-​Third Session, General Assembly Official Records (A/​56/​10) (2001). 33 UN Human Rights Committee (hrc), ccpr General Comment No. 20 on Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), Adopted at the Forty-​fourth Session of the Human Rights Committee, on 10 March 1992. See also Prosecutor v. Furundzija, Judgement of the Trial Chamber of the International Tribunal for the former Yugoslavia, 10 December 1998, paras. 155-​156, where the icty invalidated amnesties granted for torture. 34 Hersch Lauterpacht “The Problem of Jurisdictional Immunities of Foreign States” (1951) 28 British Yearbook of International Law 220, at 228. 35 Max du Plessis “Shambolic, Shameful and Symbolic: Implications of the African Union’s immunity for African leaders” Institute for Security Studies Paper 278 (2014). See also Op-​ ed by Desmond Tutu “In Africa, Seeking a License to Kill”, New York Times,10 October 2013 available at https://​www.nytimes.com/​2013/​10/​11/​opinion/​in-​africa-​seeking-​a-​license-​to-​ kill.html (accessed 4 November 2020). 36 Prefecture of Voiotia v. Federal Republic of Germany, Judgement of the Court of First Instance of Leivadia-​Greece, 30 October 1997. See Ilias Bantekas “Prefecture of Voiotia v. Federal Republic of Germany. Case No. 137/​1997” (October 1998) 92(4) The American Journal of International Law 765, at 765. 37 For details on the Distomo Massacre, see Mark Mazower Inside Hitler’s Greece (Yale, 1993).

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b)



c)



d)



e)



f)

747

Consequently, it is deemed to have tacitly waived such right (constructive waiver through the operation of international law); Acts of the state in breach of peremptory international law cannot qualify as sovereign acts of state. In such cases the defendant state is not considered as acting within its capacity as sovereign; Acts contrary to peremptory international law are null and void and cannot give rise to lawful rights, such as immunity (in application of the general principle of law ex iniuria ius non oritur); The recognition of immunity for an act contrary to peremptory international law would amount to complicity of the national court to the promotion of an act strongly condemned by the international public order; The invocation of immunity for acts committed in breach of a peremptory norm of international law would constitute abuse of right; and finally Given that the principle of territorial sovereignty, as a fundamental rule of the international legal order, supersedes the principle of immunity, a state in breach of the former when in illegal occupation of foreign territory, cannot possibl[y]‌invoke the principle of immunity for acts committed during such illegal military occupation.38

As the Hellenic Supreme Court, Areios Pagos, made clear when it upheld the ruling and the grounds upon which the Court had ruled for the Prefecture, jus cogens norms should compel behaviour from States that is consistent with the values they protect.39 Parts of the Supreme Court’s reasoning were followed by the Italian Corte di Cassazione in Ferrini v. Federal Republic of Germany40 which was born of similar circumstances. In allowing an appeal from the Court of Appeal which had upheld recognition of Germany’s immunity by a court of first instance, the Supreme Court –​while affirming the “existence of a customary norm of 38 39

40

Voiotia v. Federal Republic of Germany (above note 36), at 13. Prefecture of Voiotia v. Federal Republic of Germany (Distomo Massacre Case), Judgement of the Areios Pagos (Supreme Court) of Greece, 4 May 2000. This judgment was however overturned by the Greek Special Highest Court which decided that Germany could not be sued before Greek civil courts as there were no exceptions to its immunity. See also Federal Republic of Germany v. Miltiadis Margellos, Judgement of the Special Highest Court of Greece, 17 September 2002. Ferrini v. Federal Republic of Germany, Corte di Cassazione (Sezioni Unite), Judgment of the Italian Supreme Court, 6 Nov. 2003. See also Andrea Bianchi “Ferrini v. Federal Republic of Germany” (2005) 99 The American Journal of International Law 242.

748 Daniel international law obliging States to abstain from exercising jurisdiction against foreign States” –​noted that the norm, previously “absolute in nature … has become, and continues to become, gradually limited.”41 The Court also relied on Prosecutor v. Furundzija,42 where the icty had held that if the need to preserve values such as those violated in individual crimes removes certain types of functional immunities, it should also require fundamental changes in how State responsibility is considered. The reasoning of the Hellenic and Italian Supreme Courts in Voiotia and Ferrini have been further distilled to a number of values-​laden grounds that human rights advocates have presented not only as a barrier to invocation of sovereign immunity by States but also as a barrier to invocation of immunity by Heads of State and other high-​ranking officials.43 These grounds and advocacy for same, the principal flaws of which appear to be conflation of State immunity and individual immunities are presented summarily below and shall be interrogated in the section following that. 2.1 Jus Cogens and Normative Hierarchy The normative hierarchy theory notionally derives from Article 53 of the Vienna Convention on the Law of Treaties, the first part of which states that “[a]‌treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.”44 The theory asserts that immunity for Heads of State and high-​ranking officials must yield to the imperative to ensure accountability for jus cogens human rights violations.45 Because the rules on immunities rank lower in the hierarchy of norms they must –​the theory posits –​necessarily be subordinate to jus cogens proscriptions of torture and other egregious violations of human rights.46 Differently argued, jus cogens norms, from which there can be no derogation, are hierarchically superior to and must therefore defeat the application of norms such as sovereign immunity and its derivatives, which are ordinary international law norms founded, among others, on a desire to ensure comity amongst States.47 It must be noted here that although it has

41 42 43 44 45 46 47

Ferrini v. Federal Republic of Germany (above note 40), at para 5. Prosecutor v Furundzija (above note 33), at para 9. Alexander Orakhelashvili “State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong” (2007) 18 European Journal of International Law 955, at 964. Article 53 of the 1969 Vienna Convention on the Law of Treaties. Bianchi (above note 2), at 259–​262. Bassiouni (above note 1). Bianchi (above note 2), at 246.

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been suggested that sovereign immunity is itself a peremptory norm,48 the notion has received little doctrinal support and scholarship on the subject overwhelmingly suggests otherwise. Human rights scholars –​including Bianchi, Cassese and Orakhelashvili –​ have argued that it is not only treaties that are rendered void if they conflict with jus cogens norms but also other international law norms.49 The Third Report of the ilc’s Special Rapporteur on jus cogens, which received broad support from the ilc members, concurs.50 It is argued that to the extent that immunity inhibits accountability for breaches of peremptory norms such as genocide or torture, it should fail. Bianchi advocates to this end, a values-​ centric approach to international law which would require judges to uphold peremptory norms over norms such as immunity.51 Immunity for international crimes would be illogical, he says, since international law cannot simultaneously reprimand the commission of heinous acts and shield officials from prosecution for such acts.52 The dissenting opinion of Judges Rozakis and Caflisch in Al-​Adsani v. The United Kingdom53 before the European Court of Human Rights (ECtHR) is particularly articulate in making the point that accountability for breaches of jus cogens norms should trump immunity. The UK Court of Appeal had upheld a High Court ruling disallowing service of a writ on the Kingdom of Kuwait on grounds that the applicant had not proven that his claim fell within the permitted exceptions of the UK’s Foreign Sovereign Immunities Act. The applicant approached the ECtHR when the House of Lords refused to grant leave to appeal. In their dissent to the ECtHR judgment, which went in the UK’s favour, Rozakis and Caflisch argued that: … The acceptance therefore of the jus cogens nature of the prohibition of torture entails that a State allegedly violating it cannot invoke 48

Paul Gully-​Hart “The Function of State and Diplomatic Privileges and Immunities in International Cooperation in Criminal Matters: The Position in Switzerland” (1999) 23 Fordham International Law Journal 1334. 49 Sevrine Knuchel “State Immunity and the Promise of Jus Cogens” (2010–​2011) 9 Northwestern University Journal of International Human Rights 149. 50 Tladi Third Report (above note 7), at paras. 86-​102 and 113–​159. 51 Bianchi (above note 2); Mazower (footnote 37), at 246. 52 Andrea Bianchi “Human Rights and the Magic of Jus Cogens” (2008) 19 The European Journal of International Law 491. See also Alexander Orakhelashvili “State Immunity and International Public Order” (2002) 45 German Yearbook of International Law 227, at 263. 53 Al-​Adsani v. United Kingdom, Judgement of the European Court of Human Rights, 21 November 2001.

750 Daniel hierarchically lower rules (in this case, those on State immunity) to avoid the consequences of the illegality of its actions … Kuwait cannot validly hide behind the rules on State immunity to avoid proceedings for a serious claim of torture made before a foreign jurisdiction; and the courts of that jurisdiction (the United Kingdom) cannot accept a plea of immunity … to refuse an applicant adjudication of a torture case.54 As the fact of it being a dissent suggests, this argument failed to move the Court, which seemed constrained to arrive at its decision only because of a dearth of caselaw that would have permitted an alternative conclusion. Per the Court: The Court, while noting the growing recognition of the overriding importance of the prohibition of torture, does not accordingly find it established that there is yet acceptance in international law of the proposition that States are not entitled to immunity55 2.2 Related Arguments to Support a Jus Cogens Human Rights Exception Other grounds advanced for a jus cogens exception to immunity include the following: 2.2.1 Universal Jurisdiction Trumps Immunity A related ground upon which advocates hang the proposition that upholding jus cogens norms trumps immunity for Heads of State and other high-​ranking officials, invokes universal jurisdiction as a foil against immunity.56 Originally framed narrowly as an exception to traditional grounds of jurisdiction –​territoriality, nationality, active and passive personality –​universal jurisdiction may be invoked by all States to exercise jurisdiction over such persons as pirates, whose activities on the high seas put them beyond the reach of ordinary grounds for the exercise of jurisdiction but render them hostes humani generis,57 subject to prosecution by any and all States on behalf of humankind.58 In the last century however, the atrocities of both World Wars and the 54 55 56 57 58

Id., Joint Dissenting Opinion of Judges Rozakis and Caflisch (Joined by Judges Wildhaber, Costa, Cabral Barreto and Vajic) at paras. 1 –​3. Al-​Adsani v. United Kingdom (above note 53) at para. 66. Dalila Hoover “Universal Jurisdiction not so Universal –​ Time to Delegate to the International Criminal Court?” (2011–​2012) 8 Eyes on the icc 73. Principle 2 of 2001 Princeton Principles on Universal Jurisdiction, Princeton Project on Universal Jurisdiction. Serious crimes under international law include piracy, war crimes, crimes against humanity, genocide and torture. Bassiouni (above note 1).

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profound revulsion they invoked resulted in a significant expansion of the scope of crimes that the community of States is willing to pursue under cover of universal jurisdiction. Few cases typify this more than Attorney-​General of Israel v. Eichmann.59 In convicting and sentencing Eichmann to death, the District Court of Jerusalem had dismissed objections of counsel for the accused who had challenged its jurisdiction by arguing that prosecution of Eichmann for actions undertaken on behalf of a foreign State, against persons who were not citizens of Israel, outside of Israel’s borders and before the creation of Israel, violated international law.60 On appeal, the Supreme Court of Israel affirmed Eichmann’s conviction for crimes against humanity, war crimes and crimes against the Jewish people (genocide)61 and justified Israel’s assertion of jurisdiction thus: Not only do all the crimes attributed to the appellant bear an international character, but their harmful and murderous effects were so embracing and widespread as to shake the international community to its very foundations. The State of Israel therefore was entitled, pursuant to the principle of universal jurisdiction and in the capacity of a guardian of international law and an agent for its enforcement, to try the appellant.62 With the evolution of humanitarian and human rights law and the strengthening of the concept of crimes erga omnes, there is a not-​unreasonable belief amongst human rights advocates that there is universal jurisdiction for a wide range of egregious violations of human rights.63 Indeed, in the run-​up to the Rome Conference where the Statute of the icc was adopted, Germany had made a case for the jurisdiction of the icc to be founded on universal jurisdiction because: [u]‌nder current international law, all States may exercise universal criminal jurisdiction concerning acts of genocide, crimes against humanity

59 60 61 62 63

Attorney General of the Government of Israel v. Eichmann, Judgement of the Supreme Court of Israel, 29 May 1962. Id., at para. 30. Peter Longerich Holocaust: The Nazi Persecution and Murder of the Jews (Oxford, 2010). Attorney-​General of the Government of Israel v. Eichmann (above note 59), at para 12 (f). Bassiouni (above note 1). See also Hoover (above note 56), at 79 –​89.

752 Daniel and war crimes regardless of the nationality of the offender the nationality of the victims and the place where the crime was committed.64 While the German proposition failed on account of US opposition,65 Germany’s formulation for what should be the basis of the icc’s jurisdiction proved persuasive before the UK House of Lords in the case of Pinochet Ugarte66 where universal jurisdiction came up against immunity. In seeking to quash the arrest warrant and extradition request issued by Spanish magistrate Balthazar Garzon, Pinochet –​accused of having ordered, authorized or allowed the torture and disappearance of several Chileans and citizens of other countries (including Spain) as part of a crackdown on his opponents –​claimed immunity as a former Head of State. Having recognized that torture is a crime over which universal jurisdiction can be asserted, Lord Brown Wilkinson in rendering judgment in the House of Lords, held that if the immunity claimed by Pinochet were recognized: the whole elaborate structure of universal jurisdiction over torture committed by officials [would be] rendered abortive and one of the main objectives of the Torture Convention –​to provide a system under which there is no safe haven for torturers –​will have been frustrated. In my judgment, all these factors together demonstrate that the notion of continued immunity for ex-​heads of state is inconsistent with the provisions of the Torture Convention.67 Lord Phillip of Worth Matravers also held that: International crimes and extra-​ territorial jurisdiction in relation to them are both new arrivals in the field of public international law. I do not believe that state immunity ratione materiae can coexist with them. The exercise of extraterritorial jurisdiction overrides the principle that one state will not intervene in the internal affairs of another. It does so

64 65 66 67

See “The jurisdiction of the International Criminal Court –​An informal discussion paper submitted by Germany” submitted to the Preparatory Committee on the Establishment of an International Criminal Court” (A/​a c.249/​1998/​d p.2) (1998). Michael P. Scharf “The icc’s Jurisdiction Over the Nationals of Non-​Party States: A Critique of the U.S. Position” (2001) 64 Law and Contemporary Problems 67. R v. Bow Street Metropolitan Stipendiary Magistrate and Others, Ex Parte Pinochet Ugarte (No. 3), Judgement of the House of Lords of the United Kingdom, 24 March 1999 . Id., at 205.

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because, where international crime is concerned, that principle cannot prevail. An international crime is as offensive, if not more offensive, to the international community when committed under colour of office. Once extraterritorial jurisdiction is established, it makes no sense to exclude from it acts done in an official capacity.68 (my emphasis) The plethora of actions instituted against Heads of State and senior government officials in European countries,69 particularly in the courts of Belgium70 and Spain,71 in the aftermath of Pinochet, affirmed –​for human rights advocates –​an opportunity to ensure accountability for jus cogens violations, even over invocations of sovereign immunity and immunity for Heads of State and other high-​ranking officials.72 2.2.2

Disqualification of International Crimes as Acts of State for Which Immunity May Be Invoked Another ground presented to prevent invocation of sovereign immunity in the face of violations of jus cogens norms, seeks to delegitimize and invalidate the contentious act as an act of State. Taking a cue from the reasoning that informed courts’ willingness to distinguish between acta jure imperii and acta jure gestionis in order to do justice to parties prejudiced or denied a remedy by a State’s invocation of immunity in commercial matters,73 human rights advocates have argued that immunity cannot avail perpetrators of jus cogens violations because such violations cannot be recognized as sovereign acts.74 In Eichmann, the Supreme Court of Israel addressed this point as follows: There is no basis for the [act of state] doctrine when the matter pertains to acts prohibited by the law of nations, especially when they are 68 69 70 71

72 73 74

Id., at 289. See Ian Black and Ian Cobain “British Court Issued Gaza Arrest Warrant for Former Israeli Minister Tzipi Livni”, The Guardian, 14 December 2009 available at https://​www.theguardian.com/​world/​2009/​dec/​14/​tzipi-​livni-​israel-​gaza-​arrest (accessed 4 November 2020) . See Sultana Tafadar The Legal Case Against Ariel Sharon (Islamic Human Rights Commission, 2003), at 1. See for instance criminal case instituted in 2006 by Spanish prosecutors against former Chinese President Jiang Zemin, Prime Minister, Li Peng, and five Chinese officials for genocide in Tibet: Audiencia Nacional, Sala de lo Penal, Seccion 4, Diligencia Previas 237/​ 05, Rollo de Apelaci6n 196/​05, 1, Madrid, Auto (10 Jan. 2006). Hoover (above note 56), at 73 –​75. See Judgment of Sir Robert Phillimore in the Admiralty Division of the High Court in The Charkieh (1873) [L.R.] 4 A. & E. 59, at 99 –​100. Van Alebeek (above note 2), at 241.

754 Daniel international crimes of the class of “crimes against humanity” (in the wider sense). Of such odious acts, it must be said that in point of international law, they are completely outside the “sovereign” jurisdiction of the State that ordered or ratified their commission, and therefore those who participated in such acts must personally account for them and cannot shelter behind the official character of their task or mission or behind the “Laws” of the State by virtue of which they purported to act.75 The tendered rationale is that by acting against non-​derogable norms that have been established by the community of States in order to preserve humanity and human conscience, a State may not legitimately claim acta jure imperii nor invoke immunity to excuse wilful disregard of such norms. The argument has been extended also to State officials for whom, it is said, immunity ratione materiae may not be pleaded because their actions –​for being inconsistent with normal actions on behalf of a State –​cannot be official acts.76 This argument was adopted by the House of Lords in the first Pinochet case, where the majority held that a Head of State who ordered or committed torture was not, when so doing, acting as a Head of State. Per Lord Steyn: [T]‌he development of international law since the Second World War justifies the conclusion that by the time of the 1973 coup d’état [in Chile], and certainly ever since, international law condemned genocide, torture, hostage taking and crimes against humanity (during an armed conflict or in peace time) as international crimes deserving of punishment. Given this state of international law, it seems to me difficult to maintain that the commission of such high crimes may amount to acts performed in the exercise of the functions of a Head of State.77 (my emphasis) Lord Hutton held similarly in the second Pinochet appeal that: [T]‌he commission of acts of torture is not a function of a head of State, and therefore in this case the immunity to which Senator Pinochet is entitled as a former head of State … does not attach to acts of torture.78 75 76 77 78

Attorney-​General of the Government of Israel v. Eichmann (Supreme Court) (above note 62), at 309–​310. Andrea Bianchi “Denying State Immunity to Violators of Human Rights” (1994) 45 Austrian Journal of Public and International Law 195, at 227–​228. R v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte No. 2, Judgement of the House of Lords of the United Kingdom, 25 November 1998, at 1506. Ex Parte Pinochet 3 (above note 66), at 263.

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2.2.3 Implied Waiver of Immunity A further ground presented to invalidate sovereign immunity and by extension, the immunity of Heads of State and high-​ranking officials in the face of violations of jus cogens norms is the implied waiver. This argument acknowledges a State’s agency but asserts that because the State’s actions do not cohere with its customary international law and treaty obligations, a sovereign State’s only explanation for actions that violate obligations founded on values it continues to uphold, is that it intended to submit to the sanction that such violations would ordinarily incur. By acceding to treaties which impose obligations on States to protect human rights and provide effective remedies in the event of their breach, the argument asserts that States waive their right to invoke immunity. Differently framed, States’ obligations under international law not to derogate from peremptory norms, implicitly represent an agreement to renounce immunity when they violate such norms.79 This legal construct was inspired by Amerada Hess Shipping Corp. v. Argentine Republic,80 in a commentary on which, Belsky, Merva and Roht Arriaza argued that: The existence of a system of rules that States may not violate implies that when a state acts in violation of such a rule, the act is not recognized as a sovereign act. When a state act is no longer recognized as sovereign, the state is no longer entitled to invoke the defense of sovereign immunity. Thus, in recognizing a group of peremptory norms, States are implicitly consenting to waive their immunity when they violate one of these norms. 81 The argument hews closely to the acta jure commercii rationale presented in a wide range of cases in multiple jurisdictions, which formed the basis of the restrictive theory of sovereign immunity. Courts have, on the basis of case law 79 80 81

Siderman De Blake v. Republic of Argentina, Judgement of the United States Court of Appeals for the Ninth Circuit, 22 May 1992. See also Voiotia v. Federal Republic of Germany (above note 36). Amerada Hess Shipping Corporation, Appellant, v. Argentine Republic, Appellee. United Carriers, Inc., Appellant, v. Argentine Republic, Appellee, Judgement of the United States Court of Appeals Second Circuit, 11 September 1987, at 425. Adam C. Belsky, Mark Merva, and Naomi Roht-​Arriaza “Implied Waiver under the fsia: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law” (1989) 77 California Law Review 365, at 394. See also William F Webster “Amerada Hess Shipping Corp. v. Argentine Republic: Denying Sovereign Immunity to Violators of International Law” (1987–​1988) 39 Hastings Law Journal 1109.

756 Daniel and legislation developed on the back of such case law, ruled that a State may be held, by its conduct, to have waived immunity –​as was argued and upheld by the Supreme Court in Voiotia.82 3

Interrogating the Case for a Jus Cogens Human Rights Exception to Immunity

While the assertion of a jus cogens exception to sovereign immunity and immunity for Heads of State and other high-​ranking officials has found favour before a number of courts,83 the argument that such judgments evince a legal norm in international law is questionable. Not least of the reasons being that almost without exception, the judgments finding that there is a jus cogens human rights exception to immunity have been overturned by appellate courts or have had the rationale undergirding them traversed by authoritative international courts. It would seem then that notwithstanding the lure of its values-​laden formulation, the normative hierarchy argument has not yielded the exceptions to immunities under current international law that it seeks to inspire, even if such a possibility is not foreclosed.84 The relevant authorities warrant further examination. As a necessary backdrop to addressing the more particular questions as to whether immunity ratione personae and immunity ratione materiae admit of any exceptions for jus cogens crimes I propose to interrogate the normative postulations and extrapolations –​distilled from Voiotia and Ferrini –​that represent the essence of the case for a jus cogens exception to immunity by setting out the proffered grounds in extenso and examining said grounds seriatim. 3.1 Jus Cogens and Normative Hierarchy The soundness of the normative hierarchy theory is tested when one properly identifies that invocation of immunity is fundamentally a rule of procedure that prevents the exercise of process and does not traverse any substantive norms. States that assert sovereign or Head of State immunity, and States that accord such immunity are therefore not thereby trivializing jus cogens norms or impugning their peremptory nature. Fox notes to this end that: 82 83 84

Voiotia v. Federal Republic of Germany (above note 36). See also The Parlement Belge (1880) 5 P.D. 197. Voiotia v. Federal Republic of Germany (above note 36); Ferrini v. Federal Republic of Germany (above note 40); Ex Parte Pinochet 3 (above note 66). Knuchel (above note 49) at 174.

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[s]‌tate immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite.85 Indeed, in the Arrest Warrant Case, the Court was at pains to point out that: Immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts. While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from all criminal responsibility.86 Beyond the fact that “there is no substantive content in the procedural plea of State immunity upon which a jus cogens mandate can bite,” the view that immunity should not just be unavailable to persons accused of breaching jus cogens norms because of normative hierarchies but also that such persons must face trial, raises other difficulties. The prohibition of torture, which is a primary norm with jus cogens stature is a norm the sole objective of which is to render the practice of torture illegal. It does not, in so doing, prescribe how such prohibition must be actualized or enforced. In order for the normative hierarchy argument to succeed (even if one were to agree that sovereign immunity is a substantive and not a procedural hurdle) one would need to prove the existence of another jus cogens norm that proscribes the recognition of sovereign immunity for human rights violations and compels a State to provide remedies to the victim for acts committed by the foreign State and/​or its representatives. While this would significantly aid the quest for accountability for jus cogens crimes, there is simply no such rule or jus cogens prohibition of immunity.87 Per Lord Hoffman in Jones: To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary … rule which, by way of exception to state immunity, entitles or perhaps requires 85 86 87

Hazel Fox The Law of State Immunity (Oxford, 2008), at 525. Arrest Warrant case (above note 18), at para 60. Knuchel (above note 49), at 160.

758 Daniel States to assume … jurisdiction over other States in cases in which torture is alleged.88 Indeed, case law in domestic and international fora is replete with evidence to the contrary.89 Presented with arguments founded on normative hierarchy, the ECtHR has also affirmed, from its review of “international instruments, judicial authorities or other [international law] materials” that there is no basis to validate the existence or emergence of a jus cogens human rights exception to sovereign immunity.90 The potential consequences of the normative hierarchy interpretation on international relations was highlighted in Al Adsani by Judge Pelonpaa who, in a concurring but separate opinion, renders a caution worth repeating that: A holding that immunity is incompatible with Article 6 of the Convention because of the jus cogens nature of the prohibition of torture would have made it difficult to take into account any considerations of this kind. … [T]‌he Court would have been forced to hold that the prohibition of torture must also prevail over immunity of a foreign State’s public property, such as bank accounts intended for public purposes, real estate used for a foreign State’s cultural institutes and other establishments abroad (including even, it would appear, embassy buildings), etc., since it has not been suggested that immunity of such public property from execution belongs to the corps of jus cogens. Although giving absolute priority to the prohibition of torture may at first sight seem very “progressive”, a more careful consideration tends to confirm that such a step would also run the risk of proving a sort of “Pyrrhic victory”. International cooperation, including cooperation with a view to eradicating the vice of torture, presupposes the continuing existence of certain elements of a basic 88

89

90

Jones (Respondent) v. Ministry of Interior Al-​Mamlaka Al-​Arabiya as Saudiya (Kingdom of Saudi Arabia) (Appellants); Mitchell and Ors (Respondents) v. Al-​Dali and others and Ministry of Interior Al-​Mamlaka Al-​Arabiya as Saudiya (Kingdom of Saudi Arabia) (Appellants); Jones (Appellant) v. Ministry of Interior Al-​Mamlaka Al-​Arabiya as Saudiya (Kingdom of Saudi Arabia) (Respondents) (Conjoined Appeals), Judgement of the House of Lords of the United Kingdom, 14 June 2006. Bouzari v. Iran (2006) 128 International Law Reports 586, 587–​590; Al-​Adsani v. Government of Kuwait and Others, ca (1996) 107 International Law Reports, 536, 537; Bucheron v. Federal Republic of Germany, French Supreme Court of Appeal(Cour de cassation), 16 December 2003. Al-​Adsani v. United Kingdom (above note 53), at para 61. See also Jones and Others v. The United Kingdom, Judgement of the European Court of Human Rights, 14 January 2014.

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framework for the conduct of international relations. Principles concerning State immunity belong to that regulatory framework, and I believe it is more conducive to orderly international cooperation to leave this framework intact than to follow another course.91 If, as advocates argue, a jus cogens prohibition obliterates any procedural or other obstacles to ensuring accountability for breach of such prohibitions (including those obstacles born of practical considerations for the conduct of States inter se),92 the dynamics of international relations could, even more profoundly, affirm that might is right. The risks that this might pose to the notional equality of States upon which international law rests has spawned an effort to avoid overreach and to situate the effect of jus cogens within defensible limitations. Thus, does Orakhelashvili, an ardent proponent of normative hierarchies, concede that: … the impact of jus cogens is, in principle, indiscriminate in its effects, and may trump immunity of incumbent officials in the same way as that of former officials. But there can be factors demonstrating that this indiscriminate effect is kept within its proper limits and results in no undue harassment of serving heads of State and foreign ministers. The context of the peremptory duty to prosecute may sometimes allow for the postponement of accountability without harming public order.93 (My emphasis) It is a telling concession indeed.94 On the present evidence, it would seem then that jus cogens does not –​at least not yet –​invalidate immunities before foreign courts on the basis of normative hierarchy.95 3.2 Review of Other Normative Hierarchy-​Related Grounds Related grounds presented to invalidate immunity in the face of jus cogens violations –​universal jurisdiction, illegitimate acts of state and implied waiver, fare no better upon review. 91 92 93 94 95

See concurring but separate opinion of Judge Pelonpaa (joined by Judge Bratza) in Al-​ Adsani v. United Kingdom (above note 53). Orakhelashvili (above note 43), at 964. Orakhelashvili (above note 43), at 265. Orakhelashvili (above note 43), at 263. See however Alexander Orakhelashvili “State Immunity and International Public Order Revisited,” (2006) 49 German Yearbook of International Law 327. Phillip Wardle “The Survival of Head of State immunity at the International Criminal Court” (2011) 18 Australian International Law Journal 181.

760 Daniel 3.2.1

Does Universal Jurisdiction for Jus Cogens Crimes Trump Immunity? Cassese notes in a 2003 article that “the principle of universal jurisdiction … is on its last legs, if not already in its death throes.”96 Long derided by the au as being prone to abuse for purposes of neo-​ colonialist domination,97 prosecutions under universal jurisdiction –​previously presented as a bulwark against impunity –​have proven, unsurprisingly, to be pliable to political influence.98 Acknowledging the risks of harassment that have engendered the paring back in European countries of the broad ambits of legislation permitting universal jurisdiction, Bassiouni notes that: Unbridled universal jurisdiction can cause disruptions in world order and deprivation of individual human rights when used in a politically motivated manner or for vexatious purposes. Even with the best of intentions, universal jurisdiction can be used imprudently, creating unnecessary frictions between States, potential abuses of legal processes, and undue harassment of individuals prosecuted or pursued for prosecution under this theory.99 As human rights advocates have argued, violations of jus cogens norms engender an obligation among States to exercise universal jurisdiction and prosecute hostes humanis generis. Advocates also assert that the obligation to prosecute is also a jus cogens norm which prevails over any rights of States which are not themselves peremptory norms.100 At best, this is a fairly significant overreach for which there is little to no known support in international case law or State practice. It is therefore not clear what is the source of assurance of scholars that proclaim the existence of 96

Antonio Cassese “Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction” (2003) 1 Journal of International Criminal Justice 589, at 589. 97 See Progress Report of the au Commission on the Abuse of the Principle of Universal Jurisdiction, Executive Council, Sixteenth Ordinary Session (ex.cl540(xvi)) (2010). See also Harmen G van der Wilt “Universal Jurisdiction under Attack: An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States” (2011) 9 Journal of International Criminal Justice 1043. 98 Katherine Gallagher “Universal Jurisdiction in Practice: Efforts to Hold Donald Rumsfeld and Other High-​level United States Officials Accountable for Torture” (2009) 7 Journal of International Criminal Justice 1087. 99 M. Cherif Bassiouni “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice” (2001) 42 Virginia Journal of International Law 81, at 82. 1 00 Orakhelashvili (above note 43).

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such a rule. The definitive assertion that violations of peremptory norms compel invocation of universal jurisdiction is clearly undermined by the absence of State practice in the invocation of universal jurisdiction for the crime of aggression –​which is also a jus cogens prohibition.101 In any case, universal jurisdiction for a crime does not suggest that there would be no immunity for that crime just as territorial jurisdiction over a crime does not mean that immunity cannot avail perpetrators of that crime. Indeed, immunity is relevant only where there is jurisdiction in the first place but the ability to exercise jurisdiction cannot mean that there can be no immunity.102 Of the attempts to situate an obligation upon States to prosecute crimes prohibited by treaty obligations that confer universal jurisdiction,103 the icj has made the following observations in the Arrest Warrant case: [A]‌lthough various international conventions on the prevention and punishment of certain serious crimes impose on States obligations of prosecution or extradition, thereby requiring them to extend their criminal jurisdiction, such extension of jurisdiction in no way affects immunities under customary international law, including those of Ministers for Foreign Affairs. These remain opposable before the courts of a foreign state, even where those courts exercise such a jurisdiction under these conventions.104 (Emphasis mine). There would seem to be very limited instances, if any, in which the failure by a State to prosecute authors of jus cogens violations in foreign countries –​or to allow civil redress by recognizing the immunity of the perpetrator –​would represent a breach of international obligations. Even in cases where such an obligation can be established, the obligation would seem not to be, of itself, a jus cogens obligation. This would imply no conflict between rules of immunity and the jus cogens nature of the proscribed conduct.105 ECtHR case law would seem to sustain this. In Al Adsani the ECtHR dismissed the argument that by 1 01 Akande and Shah (above note 2), at 837 –​838. 102 Prosecutor v. Omar Hassan Ahmad Al Bashir: The au’s Submission on 16 July 2018 in the Hashemite Kingdom of Jordan’s Appeal Against the Decision under Article 87(7) of the Rome Statute on the Non-​Compliance by Jordan with the Request by the Court for the Arrest and Surrender [of] Omar Al-​Bashir (icc-​02/​05-​01/​09 oa2) (2018). 103 Alexander Orakhelashvili “Immunities of State Officials, International Crimes, and Foreign Domestic Courts: A Reply to Dapo Akande and Sangeeta Shah” (2011) European Journal of International Law 849. 104 Arrest Warrant case (above note 18), at para. 59. 105 Akande and Shah (above note 2).

762 Daniel granting immunity to the Kingdom of Kuwait the UK Government had denied the claimant access to Courts and legal redress for a crime for which there is universal jurisdiction. The court held that: While the Court accepts, on the basis of these authorities, that the prohibition of torture has achieved the status of a peremptory norm in international law, it observes that the present case concerns not, as in Furundzija and Pinochet, the criminal liability of an individual for alleged acts of torture, but the immunity of a State in a civil suit for damages in respect of acts of torture within the territory of that State. Notwithstanding the special character of the prohibition of torture in international law, the Court is unable to discern in the international instruments, judicial authorities or other materials before it any firm basis for concluding that, as a matter of international law, a State no longer enjoys immunity from civil suit in the courts of another State where acts of torture are alleged. In particular, the Court observes that none of the primary international instruments referred to (Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights and Articles 2 and 4 of the UN Convention) relates to civil proceedings or to State immunity.106 Some commentators have opined from the court’s distinction between civil and criminal liability that the Court would have found that sovereign immunity would not apply in the latter case.107 This may well be true but given that the ECtHR does not have criminal jurisdiction, the said commentators’ extrapolation from Al Adsani can only be described as obiter-​inspired inference. Tellingly, subsequent ECtHR rulings as well as the icj’s finding in the Jurisdictional Immunities Case –​that violations of jus cogens norms may still be considered acta jure imperii for which immunity avails the State –​suggest otherwise. As the icj noted: … there is a substantial body of State practice … which demonstrates that customary international law does not treat a State’s entitlement to immunity as dependent upon the gravity of the act of which it is accused or the peremptory nature of the rule which it is alleged to have violated.108 1 06 Al-​Adsani v. United Kingdom (above note 53), at para. 61. 107 Hazel Fox “Approaches of Domestic Courts to the Assertion of International Jurisdiction” in Patrick Capps, Malcolm Evans and Stratos Konstadinidis (eds.) Asserting Jurisdiction –​ International and European Legal Perspectives (Hart, 2003), at 185. 108 Jurisdictional Immunities of the State case (above note 21), at para. 84.

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The ECtHR had occasion to rule again on whether States may invoke sovereign immunity in cases concerning breaches of jus cogens norms the year after Al-​Adsani but this time with a more robust margin. In Kalogeropoulou v. Greece and Germany,109 victims of the Distomo Massacre had petitioned the ECtHR that the refusal of the Greek Justice Minister to authorize the seizure of German property in Greece and levy execution against such assets infringed their right of access to court. Describing the petition as “manifestly ill-​founded,” the Court declined to hear the case, ruling that there was no prohibition on States invoking immunity in cases of jus cogens violations.110 In response to pressure from particularly the United States, the repeal or amendment of laws permitting universal jurisdiction in Belgium,111 Spain,112 and Germany,113 clearly render hollow the commitment to protection of human rights and accountability for their breach that ostensibly led to the enactment of the laws in the first place.114 In Belgium, the new law expressly recognizes immunity of Heads of State and high-​ranking government officials and requires that prosecutions, and the investigations that precede them, only be instituted by the Federal Attorney General whose determination to proceed or not may not be subjected to review.115 It is worth noting here that it was 109 Kalogeropoulou v. Greece and Germany, Judgement of the European Court of Human Rights, 12 December 2002. 110 Kerstin Bartsch and Björn Elberling “Jus Cogens vs State Immunity, Round Two: The Decision of the ECtHR in the Kalogeropoulou et al. v. Greece and Germany Decision” (2003) 4 German Law Journal 477. 111 Loi Modifiant la Loi du 16 Juin 1993 Relative d la Ripression des Violations Graves du Droit International Humanitaire et larticle 144 ter du Code judiciaire, Law No. S-​C-​2003/​09412, F. 2003 –​1786, No. 167, 248 –​24853, art.5, (7 May 2003). The 1993 law had permitted Belgian courts to exercise universal jurisdiction. Threatened however by US Defense Secretary Rumsfeld with relocation of nato headquarters, Belgium repealed it. 112 Law 1/​2009 of November 3 in Article 23.4 of the Organic Law of the Judicial Power art. 1 (Ley Organica 1/​2009, de 3 Noviembre, del Poder Judicial, Articulo primero, Apartados 4 del articulo 23 de la Ley Organica del Poder Judicial) modified Section 4 of Article 23 of the Law 6/​1985 of July 1 of the Judicial Power (Ley Orginica 6/​1985, de 1 de Julio, del Poder Judicial). 113 Andreas Fischer-​ Lescano “Torture in Abu Ghraib: The Complaint against Donald Rumsfeld under the German Code of Crimes against International Law” (2005) 6 German Law Journal 689. 114 See “Observations by Belgium on the scope and application of the principle of universal jurisdiction.” 115 See Belgium’s Amendment to the Law of 15 June 1993 (as amended by the law of 10 February 1999 and 23 April 2003) Concerning the Punishment of Grave Breaches of Humanitarian Law (5 Aug. 2003), International Brief (26 Aug. 2003). See also Luc Reydams “Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law” (2003) 1 Journal of International Criminal Justice Eichmann 679.

764 Daniel Germany which had strongly advocated universal jurisdiction as the basis for the icc’s jurisdictional mandate,116 and it is Spain whose laws had permitted Judge Garzon’s historic assertion of universal jurisdiction in issuing an arrest warrant for Augusto Pinochet, which inspired an anti-​impunity movement.117 3.2.2

Jus Cogens Violations Disqualified as Legitimate Acts of State for Which Immunity May Be Invoked The argument that certain breaches of jus cogens norms are so heinous that they cannot be acts of the State has been relied upon in cases such as Eichmann118 and Pinochet.119 While it is true that immunity lies only for acta jure imperii (and not acta jure gestionis) the US Supreme Court has recognized in cases like Saudi Arabia v. Nelson,120 that the abuse by a State of jus cogens norms does not automatically render such acts, acta jure gestionis. The criminal enterprises of the Second World War, for which Germany’s responsibility was invoked attest to this.121 The claim has also been made that the perpetration by government functionaries of such breaches of jus cogens norms as torture cannot be considered official acts.122 As argued, to consider such crimes as normal State functions would be to legitimize them but shorn of legitimacy, the offending act cannot be considered an official act. They must therefore be individual acts. This deft reasoning however flies in the face of the Torture Convention’s definition of torture. Article 1(1) states that: For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or 1 16 See “The jurisdiction of the International Criminal Court” (above note 64). 117 As the judge who issued the warrant of arrest for Pinochet in London in 1998, Garzon has been credited with stimulating public interest in international criminal justice that has persisted over time. See Naomi Roht-​Arriaza The Pinochet Effect: Transnational Justice in the Age of Human Rights (University of Pennsylvania, 2006). 118 Attorney General of the Government of Israel v. Eichmann (above note 59). 119 See the opinions of Lord Hutton and Lord Browne-​Wilkinson in Ex Parte Pinochet (above note 66). 120 Saudi Arabia v. Nelson, Judgement of the United States Supreme Court of Appeals for the Eleventh Circuit, 23 March 1993, at 361. 121 Knuchel (above note 49), at 165. 122 Bianchi (above note 76).

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intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (Emphasis mine). The very definition of torture invalidates the notion that egregious violations of jus cogens norms cannot be considered official acts. This is affirmed by Prosecutor v. Blaškić123 where the icty Appeals Chamber ruled to reduce Blaškić’s sentence because “such officials are mere instruments of a State and their official action can only be attributed to the State.”124 While the argument which seeks to disqualify breaches of jus cogens as acts of State may seem clever, it may have the unwitting and counterproductive effect of permitting States to evade responsibility for the actions of their organs and agents.125 The ilc’s Articles on Responsibility of States for Internationally Wrongful Acts seeks to address this possibility by noting that: The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.126 3.2.3 Implied Waiver? The argument that a State which violates jus cogens norms tacitly waives any immunity it may otherwise invoke has also been routinely unsuccessful –​particularly in the United States where its formulation and enunciation by Belsky, Merva and Roht Arriaza had given it some currency.127

123 Prosecutor v. Blaškić, Judgement of the International Tribunal for the Former Yugoslavia, 18 July 1997. 124 Id., at 707. 125 James Crawford, Jacqueline Peel and Simon Olleson “The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading” (2001) 12 European Journal of International Law 963. 126 See Draft Articles on Responsibility of States for Internationally Wrongful Acts (above note 32), at Article 7. 127 Belsky, Merva, and Roht-​Arriaza (above note 81).

766 Daniel In Siderman de Blake v. Republic of Argentina,128 Princz v. Federal Republic of Germany129 and Sampson v. Federal Republic of Germany,130 the courts consistently declined to accept the argument and held that there must be evidence of an intention to waive immunity, the fact of the breach alone being insufficient to establish waiver. Beyond the US, the argument has not fared much better: In both Ferrini131 and Voiotia,132 Germany’s acceptance of culpability for the atrocities of the Second World War and even payment of compensation in some instances did not preclude it from invoking immunity in the face of civil suits –​an immunity which has been upheld by the icj133 and the ECtHR.134 In the Jurisdictional Immunities case, the Court held that the fact that “Germany still has a responsibility towards Italy, or individual Italians, in respect of war crimes and crimes against humanity committed by it during the Second World War [would] not affect Germany’s entitlement to [invoke and be cloaked with] immunity.”135 In Kalogeropoulou and Others v. Greece and Germany the ECtHR also dismissed the finding of the Greek Court of Cassation that the organs of the Third Reich had misused their sovereignty and violated jus cogens rules resulting in Germany tacitly waiving its immunity. The point is reinforced by Libya’s defence in Smith v. Socialist People’s Libyan Arab Jamahiriya.136 In asserting immunity from suit in the United States, Libya

1 28 Siderman De Blake v. Republic of Argentina (above note 79). 129 Princz v. Federal Republic of Germany, Judgement of the United States Court of Appeals of the District of Columbia, 1 July 1994. 130 Sampson v. Federal Republic of Germany and Conference on Jewish Material Claims Against Germany, Judgement of the United States Court of Appeals in the Seventh Circuit, 23 May 2001. 131 Ferrini v. Federal Republic of Germany (above note 40). 132 Voiotia v. Federal Republic of Germany (above note 36). 133 Jurisdictional Immunities of the State case (above note 21). 134 Kalogeropoulou and Others v. Greece and Germany Admissibility, Judgement of the European Court of Huma Rights, 12 December 2002. Even before the ECtHR ruling, the Special Highest Court of Greece, which became seized of the matter ruled in Federal Republic of Germany v. Miltiadis Margellos, Judgement of the Special Highest Court of Greece, 17 September 2002, that Germany enjoyed immunity without any exceptions and could not be sued before any Greek Court for torts committed. See Bartsch and Elberling, (above note 110). 135 Jurisdictional Immunities of the State case (above note 21), at para. 108. 136 Smith v. Socialist People’s Libyan Arab Jamahiriya, Judgement of the United States District Court of New York, 17 May 1995.

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claimed that it was entitled to such immunity even though its alleged role in the bombing of Pan Am Flight 103 over Lockerbie in Scotland and the resulting deaths would be a breach of jus cogens.137 The Court of Appeal of the Second Circuit which also upheld Libya’s immunity noted that: The bombing of Pan Am Flight 103 was an act of terrorism that has properly drawn the condemnation of the world community. Horrific as that act was, it cannot provide a basis for giving an unwarranted interpretation [implied waiver of immunity] to an act of Congress simply to achieve a result beneficial to the families of the victims of the bombing.138 The implied waiver argument has also been invoked in respect of application of human rights treaties. As the argument goes, a State’s ratification of a treaty that obliges it to provide effective remedies to victims in the event of the breach of treaty proscriptions prevents the State from invoking immunity or any such defences that will render the obligation to provide effective remedies impotent.139 This argument however finds no support in case law because even in the case of treaties with aut dedere aut judicare clauses,140 courts have not been convinced that immunities under customary international law would no longer avail persons entitled to claim them. The Law Lords in the Pinochet cases can hardly be described as paragons of clear or consistent reasoning but Lord Goff’s articulation, in dissent, of his concerns with the implied waiver argument is instructive. . According to him: there could well be international chaos as the courts of different state parties to a treaty reach different conclusions on the question whether a waiver of immunity was to be implied.141 137 Leslie McKay “A New Take on Antiterrorism: Smith v. Socialist People’s Libyan Arab Jamahiriya” (1997) 13 American University International Law Review 439. 138 Smith v. Socialist People’s Libyan Arab Jamahiriya, Judgement of the United Stes Court of Apopeals of the Second Circuit, 26 November 1996, at para. 34. 139 Philip Tassin “Why Treaties Can Abrogate State Sovereign Immunity: Applying Central Virginia Community College v. Katz to the Treaty Power” (2013) 101 California Law Review 755. 140 See Arts 6 and 7 of the 1951 Convention on the Prevention and Punishment of the Crime of Genocide. See also 1987 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, at Articles 7. 141 See Lord Goff in Ex Parte Pinochet 3 (above note 66), at 217. The ratio of each of the Pinochet cases was different and even for each case, the Law Lords’ reasons for their respective judgments in favour of the main judgment or in dissent were, in some cases, markedly different.

768 Daniel It may be concluded from the foregoing that the arguments proffered to assert a jus cogens human rights exception to immunity have limitations that render them unsustainable. Most importantly however, and beyond the manifest deficiencies of the arguments, there appears to be little evidence of State practice to validate such an exception. 4

State Practice as Lex Lata: Are there Jus Cogens Exceptions to Personal and Functional Immunities?

Having illustrated the weaknesses of the grounds proffered in Voiotia and Ferrini to validate a jus cogens exception to immunity, it is necessary now to directly address the more relevant question as to whether personal immunities –​ ratione personae and ratione materiae –​admit of any exceptions in criminal proceedings before foreign domestic courts. To that end, I argue that under customary international law, immunity ratione personae is absolute. I argue also that neither the proffered reasons nor State practice yet bears out the claim that there is a jus cogens exception to immunity ratione materiae under customary international law –​lex lata. 4.1 Are There Jus Cogens Exceptions to Immunity Ratione Personae? The question of whether there is an exception to immunity ratione personae –​in criminal or civil proceedings is easily answered and in categorical terms: there is not. There is consensus among scholars that immunity ratione personae avails the troika of Head of State, Head of Government and Foreign Minister where they are accused of international crimes and the ilc’s Special Rapporteur on jus cogens has acknowledged that “[i]‌t is generally accepted that there are no exceptions, even for jus cogens crimes, with respect to immunity ratione personae.”142 State practice as evidenced by the rulings of domestic courts and international courts is also unanimous and there are no judicial authorities that support the claim that persons entitled to immunity ratione personae are subject to the jurisdiction of foreign courts where they are accused of international crimes.143 This position has also been endorsed by the ilc.144 1 42 Tladi Third Report (above note 7), at para. 123. 143 Tunks (above note 29). See also Antonio Cassese “The Belgian Court of Cassation v. The International Court of Justice: The Sharon and Others Case” (2003) 1 Journal of International Criminal Justice 437, at 440. 144 Statement of the Chairman of the Drafting Committee Dire Tladi “Immunity of State Officials from Foreign Criminal Jurisdiction” based on Articles 1-​3 at the Sixty-​fifth session, 7 June 2013.

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In cases spanning multiple jurisdictions, domestic courts have been resolute in recognizing immunity ratione personae where it is invoked by persons entitled to such immunity.145 This has been the case across Europe146 and in several other jurisdictions including the United States.147 The French Cour de Cassation made the point succinctly in annulling an indictment against Gaddafi for his role in the terrorist act that downed a plane and killed over 170 persons over the Tenere desert in 1989. It asserted that there is no exception to immunity for incumbent Heads of State notwithstanding the gravity of the offence they stand accused of.148 Across the English Channel, Lord Millet declared without any prevarication in Pinochet that: The immunity of a serving head of state is enjoyed by reason of his special status as the holder of his state's highest office. He is regarded as the personal embodiment of the state itself. It would be an affront to the dignity and sovereignty of the state which he personifies and a denial of the equality of sovereign States to subject him to the jurisdiction of the municipal courts of another state, whether in respect of his public acts or private affairs. His person is inviolable; he is not liable to be arrested or detained on any ground whatsoever.149 (My emphasis). In In Re Mugabe,150 the Bow Street Magistrates Court held with a similar dearth of diffidence that:

145 See Re Sharon and Yaron, HSA v. SA (Ariel Sharon) and ya (Amos Yaron) (concerning questions of law), Judgement of the Belgian Court of Cassation, 12 February 2003. 146 Mobutu v. SA Cotoni (Civil Court of Brussels, 29 December 1988) (1993) 91 International Law Reports, 259, at 260. 147 See such decisions of US courts as Saltany v. Reagan, Judgement of the United States Court in the District of Columbia, 23 December 1988, at 321–​2; Gladys M. Lafontant v. Jean-​ Bertrand Aristide, Judgement of the United States District Court for the Eastern District of New York, 27 January 1994, at 129–​139; Tachiona v. Mugabe, Judgement of the United States Court in the District of New York, 14 February 2002. See also Phillip Wardle “The Survival of Head of State immunity at the International Criminal Court” (above note 95). 148 Gaddafi Case, General Prosecutor at the Court of Appeal of Paris (Appeal), Judgment of the French Supreme Court (Cour du Cassation), 13 March 2001. 149 Ex Parte Pinochet 3 (above note 66), at 171. 150 Tatchell v. Mugabe, England, Judgement of England’s Bow Street Magistrates’ Court, 14 January 2004. See also Tania Branigan “Mugabe Arrest Bid Fails”, The Guardian, 15 January 2004 available at https://​www.theguardian.com/​uk/​2004/​jan/​15/​zimbabwe.world (accessed 4 November 2020).

770 Daniel I am satisfied that Robert Mugabe is President and Head of State of Zimbabwe and is entitled whilst he is Head of State to that immunity. He is not liable to any form of arrest or detention and I am therefore unable to issue the warrant that has been applied for.151 Beyond the troika, immunity ratione personae also arguably avails others of similar stature in similar circumstances.152 Courts of the United Kingdom have not only declined to exercise jurisdiction over incumbent Heads of State on grounds of the absoluteness of immunity ratione personae but have also extended immunity ratione personae beyond the troika.153 In Application for Arrest Warrant against General Shaul Mofaz,154 relatives of victims of a policy they described as Israel’s “Assassination Policy” applied for an arrest warrant against Defence Minister Mofaz, alleging that he had ordered the wilful killing and wanton destruction of their relatives’ property. In a ruling which relied heavily on the icj’s consistent affirmation of the inviolability of persons entitled to immunity ratione personae,155 the Bow Street Magistrates Court held that: The basis for saying that a Foreign Minister should have [S]‌tate immunity was to enable him effectively to fulfil his function which would include travel or diplomatic missions on behalf of the State. Would such immunity extend to any other Minister of State, including a Defence Minister? … I conclude that a Defence Minister would automatically acquire [s]tate immunity in the same way as that pertaining to a Foreign Minister. Given that finding, I decline to issue the warrant requested.156

1 51 Tatchell v.Mugabe (above note 150), at para. 7. 152 Salvatore Zappala “Do Heads of State in Office Enjoy Immunity from Jurisdiction for International Crimes? The Ghaddafi Case before the French Cour de Cassation” (2001) 13 European Journal of International Law 595, at 595. 153 Arrest Warrant case (above note 18), at para. 51. Although not exhaustive, the three offices mentioned by the Court are referred to by scholars as the troika. 154 Application for Arrest Warrant Against General Shaul Mofaz, Judgement of England’s Bow Street Magistrates’ Court, 12 February 2004. 155 Certain Questions of Mutual Assistance in Criminal Matters, (Djibouti v. France), icj Report 2008, at para. 174. Also Arrest Warrant case (above note 18) at para. 58. See Steffen Wirth “Immunity for Core Crimes: The icj’s Judgment in the Congo v. Belgium Case” (2002) 13(4) European Journal of International Law 877, at 879–​882. 156 Application for Arrest Warrant Against General Shaul Mofaz (above note 154), at paras. 12 –​15.

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Customary international law on immunity ratione personae and the absence of exceptions thereto is not traversed in any way by treaties on the subject of immunities. Treaties such as the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004),157 explicitly affirm that privileges and immunities accorded under international law to Heads of State ratione personae are not compromised in any way by the convention.158 Thus do Akande and Shah also say that: The principle that immunity ratione personae extends even to cases involving allegations of international crimes must be taken as applying to all those serving state officials and diplomats possessing this type of immunity. Indeed, the principle is uncontroversial and has been widely applied by national courts in relevant cases, as well as being upheld in state practice.159 One may conclude, without fear of contradiction, that immunity ratione personae admits of no exception and is impregnable even in the face of jus cogens crimes. 4.2 Are There Jus Cogens Exceptions to Immunity Ratione Materiae? While the question of whether or not there is a jus cogens human rights exception to immunity ratione personae can be answered definitively in the negative,160 the same cannot be said of immunity ratione materiae, on which consensus has eluded scholars. Although the law is at best unclear, various scholars have asserted that such an exception does exist, Cassese among them, declaring that: To my mind five elements support the existence of a customary rule [removing functional immunity for international crimes] concerning all state officials: (i) case law; (ii) other manifestations of state practice; (iii) the rationale behind, and the essence of, the distinction between functional (or substantive) immunities and personal (or procedural) immunities; (iv) the very logic of the body of law governing international criminal law; and (v) new trends in the development of international law.161 1 57 2004 UN Convention on Jurisdictional Immunities of States and Their Property. 158 Article 3 (2) of the 2004 United Nations Convention on Jurisdictional Immunities of States and their Property. See also Article 21 of the 1969 Convention on Special Missions. 159 Akande and Shah (above note 2), at 819 –​820. 160 Arrest Warrant case (above note 18). 161 Cassese (above note 143), at 445.

772 Daniel And yet Cassese’s categorical claim that there is a customary international law rule removing functional immunity for international crimes is not borne out by case law, which admittedly, is predominantly from cases where State immunity has been invoked before civil and not criminal courts. Some scholars have argued that civil cases presented as authorities to justify the continued application of immunity are inadequate and that “[i]‌t is practice related to criminal responsibility that must form the basis of any international law rule relating to exceptions [or the absence thereof] to immunity on account of jus cogens crimes.”162 Undoubtedly, case law and State practice on criminal responsibility would assist in definitively answering the question of whether or not immunity ratione materiae may be invoked for international crimes. Necessarily however, because immunity is first pleaded in limine litis as a matter of procedure, evidence of successful invocation of immunity would lie in the dearth of case law. As Knuchel notes, because most States would seek non-​confrontational means of resolving conflicts with other States: international consensus on the matter exists only at a rather high level of abstraction … The opacity of state practice is also due to the sensitivity of the questions at stake: often, legal decisions regarding state immunity yield to considerations of foreign relations and policy, so as to maintain friendly relations with the foreign sovereign.163 It is in the absence of an abundance of such case law that reliance is placed upon the principles and logic that have informed courts’ decisions in cases that have derived from similar facts. Indeed, while not the only legal tradition, the very essence of the common law’s reliance on case law revolves around extrapolation from principles upon which previous cases have been decided. As case law and relevant obiter illustrate, there is little reason for the logic that sustains State and functional immunity to be limited only to civil proceedings, whether there is a supporting body of case law or not. In the English Court of Appeal case of Zoernsch v. Waldock,164 Lord Justice Diplock explains that:

162 Tladi Third Report (above note 19), at para. 124. See also Dire Tladi “The ilc’s Recent Work on Exceptions to Immunity: Charting the Course for a Brave New World in International Law?” (2018) 32 Leiden Journal of International Law 169, at 182. 163 Knuchel (above note 49), at 151. 164 Zoernsch v. Waldock, Judgement of London Court of Appeal, 24 March 1964.

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A foreign sovereign government, apart from personal sovereigns, can only act through agents, and the immunity to which it is entitled in respect of its acts would be illusory unless it extended also to its agents in respect of acts done by them on its behalf.165 “Acts” in the above quote would necessarily apply to acts that draw both civil and criminal sanction. In the more recent Jones, Lord Hoffman clarifies the point by stating that: It seems thus clear that a state will incur responsibility in international law if one of its officials, under colour of his authority, tortures a national of another state, even though the acts were unlawful and unauthorised. To hold that for the purposes of state immunity he was not acting in an official capacity would produce an asymmetry between the rules of liability and immunity.166 True enough both Zoernsch and Jones were civil matters, but the logic of the referenced extracts of the judgments would seem to hold true for proceedings under either civil or criminal law.167 On the more specific question of individual criminal responsibility and whether –​notwithstanding limited case law –​immunity ratione materiae may be invoked in criminal cases, Akande and Shah have noted that: [t]‌he application of immunity ratione materiae to State officials has been more common in civil than criminal cases … [and] the circumstances in which a State official may face criminal prosecution in a foreign State for an act done in the exercise of official capacity are limited. Nevertheless, the assertion of immunity ratione materiae in criminal cases is not unknown and the reasons for which the immunity is conferred apply a fortiori in criminal cases.168 Foakes also says of the case law, the relative dearth of which could otherwise have permitted a definitive determination as to whether immunity ratione materiae may be invoked before foreign domestic courts in criminal cases, that: 1 65 166 167 168

Zoernsch v. Waldock (above note 164), at 692. Jones v. Minister of Interior (above note 88), at para 78. Draft Articles on Responsibility of States (above note 126). Akande and Shah (above note 2), at 826.

774 Daniel One of the problems in trying to [identify a coherent and generally accepted exception to the functional immunity of officials with regard to international crimes] is that there are relatively few criminal cases in which State officials have invoked such immunity. There is also a political reluctance on the part of many States to prosecute former officials, particularly senior ones, of other States. This means that in practice the rules relating to the functional immunity of State officials have developed mainly in the context of civil proceedings.169 By definition and application, immunity ratione materiae under customary international law is not only co-​extensive with but arguably wider than the immunity of the State itself.170 Accordingly, a State functionary, would, upon a State’s instance be capable of claiming immunity for both sovereign acts for which the State is immune but also for official but non-​sovereign acts. Akande and Shah note accordingly that while … this type of immunity constitutes (or, perhaps more appropriately, gives effect to) a substantive defence, in that it indicates that the individual official is not to be held legally responsible for acts which are, in effect, those of the state. Such acts are imputable only to the state and immunity ratione materiae is a mechanism for diverting responsibility to the state.171 This was the finding also of the Appeals Chamber of the icty, in Prosecutor v. Blaškić. Adopting the essence of the arguments articulated in Jones, the Appeals Chamber reversed the guilty verdict in 16 of the 19 charges that the accused had been convicted of and reduced the 45-​year sentence to 9 years. Per the Court: … officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of the State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State 169 Joanne Foakes “Immunity for International Crimes? Developments in the Law on Prosecuting Heads of State in Foreign Courts” Chatham House, Briefing Paper, November 2011, at 8. 170 Foakes (above note 27), at 16. 171 Akande and Shah (above note 2), at 826 and 827.

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on whose behalf they act: they enjoy so-​called ‘functional immunity’. This is a well-​established rule of customary international law going back to the eighteenth and nineteenth centuries, restated many times since.172 (My emphasis). Indeed, in the Arrest Warrant Case, the ICJ judgment which notwithstanding some academic critique has come to represent settled law on immunity ratione personae, the icj –​in a paragraph that has elicited little commentary and generated even less analysis –​also pronounced on immunity ratione materiae when it presented the four (non-​exhaustive) instances in which a high-​ranking official entitled to immunity ratione personae may face trial for international crimes. Per the Court: … after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.173 (My emphasis). The above referenced part of the main judgment would seem to mean that unless immunity is revoked or waived, a Minister of Foreign Affairs or other person entitled to immunity ratione personae may be tried in foreign domestic courts for crimes committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. This would seem to exclude official actions taken during incumbency because immunity ratione materiae would avail the official post-​ incumbency.174 Indeed, that is the very definition of functional immunity. This was also the reasoning of Senegal’s Court of Appeal in Habré, which held that Habré’s immunities survived his exit from office.175 Tladi argues that Senegal’s Court of Appeal relied erroneously on the Arrest Warrant case,176 which turned on immunity ratione personae. While the icj 1 72 173 174 175

Prosecutor v. Blaškić (above note 124), at 707, para. 38. Arrest Warrant case (above note 18), at para 61. Knuchel (above note 49) at 158. Opinion of the Court of Appeal of Dakar on the Extradition Request for Hissène Habré by Belgium, judgement of the Dakar Court of Appeal, 25 November 2005, at paras. 5 and 6. 176 Tladi Third Report (above note 7), at para. 129.

776 Daniel did rest on immunity ratione personae, it notably also pronounced on immunity ratione materiae when it said that a Minister of Foreign Affairs may be tried in foreign domestic courts for crimes committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.177 This would seem to exclude acts performed in an official capacity during incumbency. The reasoning in the Habré and the Arrest Warrant cases appear to be consistent also with the reasoning of the District Prosecutor of Paris, who was called upon to institute criminal action against former US Secretary of Defence, Rumsfeld, for torture perpetrated in US detention centres in Guantanamo Bay and Abu Ghraib. Upon receipt of the criminal complaint initiated by Fédération Internationale des Ligues des Droits de l’Homme (fidh), the Prosecutor stated, explicitly, in his response to the petitioners that: The services of the [French] Ministry of Foreign Affairs indicated that in application of the rules of customary international law established by the International Court of Justice, immunity from criminal jurisdiction for Heads of State and Government and Ministers of Foreign Affairs continues to apply after termination of their functions, for acts carried out during their time of office and hence, as former Secretary of Defense, Mr. Rumsfeld, by extension should benefit from this same immunity for acts carried out in the exercise of his functions.178 (My emphasis). In the third report of the ilc’s Special Rapporteur for Jus Cogens, Mugabe and Gaddafi have been offered to substantiate the proposition that immunity ratione materiae may not be invoked for jus cogens crimes.179 This is however not borne out by the text of the judgments in the said cases. As the report contends, the Courts in those cases affirmed that the immunity under which the accused escaped prosecution was limited to their incumbency as President and Head of State respectively. This is indeed correct but only because the

1 77 Arrest Warrant case (above note 18), at para. 61. 178 See dh Press Release “France in Violation of Law Grants Donald Rumsfeld Immunity, Dismisses Torture Complaint” 27 November 2007, available at https://​www.fidh.org/​ spip.php?s (accessed 4 November 2020). See Thierry Leveque, James Mackenzie and Andrew Dobbie “French Prosecutors Throw Out Rumsfeld Torture Case”, Reuters, 23 November 2007 available at https://​www.reuters.com/​article/​us-​france-​rights-​rumsfeld-​ idUSL238169520071123 (accessed 4 November 2020). 179 Tladi Third Report (above note 7), at para 127.

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court only pronounced on immunity ratione personae. Senior District Judge Workman in the Bow Street Magistrates Court made no mention whatsoever of immunity ratione materiae or of Mugabe’s ability or otherwise to invoke same post-​incumbency. While it is true that courts have not always accentuated the distinction between immunity ratione personae and immunity ratione materiae,180 Mugabe can hardly be used as authority for the proposition that immunity ratione materiae may not be invoked in criminal matters. The same would be true for Gaddafi where the court only spoke of immunity ratione personae. The French Cour de Cassation made no reference to immunity ratione materiae in its holding that: the crime charged in this case, regardless of its gravity, did not constitute an exception to the principle of immunity from jurisdiction internationally recognized for incumbent heads of state in foreign courts.181 It is worthwhile also to review some specific cases that have been presented by the ilc Special Rapporteur’s Third Report on Jus Cogens as authority for a jus cogens exception to immunity ratione materiae in criminal proceedings.182 These include Eichmann,183 Barbie,184 Pinochet185 and Scilingo.186 With the exception of Pinochet where the extradition request from Spain was denied,187 there were trials in all the other cases leading to the conviction of the accused. 1 80 181 182 183 184

Wirth (above note 155). Gaddafi case (above note 148),at para. 9. Tladi Third Report (above note 7),at paras. 125-​126. Attorney General of the Government of Israel v. Eichmann (above note 59). The Prosecutor v. Klaus Barbie, Judgement of the Criminal Law Chamber of the Supreme Court of France, 6 October 1983; The Prosecutor v. Klaus Barbie Judgement of the Criminal Law Chamber of the Supreme Court of France,20 December 1985; The Prosecutor v. Klaus Barbie, Judgement of the Criminal Law Chamber of the Supreme Court of France, 25 November 1986; The Prosecutor v. Klaus Barbie, Judgement of the Criminal Law Chamber of the Supreme Court of France, 3 June 1988. 185 Ex Parte Pinochet 3 (above note 66). 1 86 Graciela P de L v. Scilingo, Judgment of the Spanish Supreme Court, 19 April 2005; See also Scilingo Manzorro (Adolfo Francisco) v. Spain, Judgment of the Supreme Court of Spain, 1 October 2007. 187 Although Pinochet lost the case he mounted to challenge his arrest and extradition to Spain, Jack Straw –​as Home Secretary –​accepted “unequivocal and unanimous” medical evidence that he was unfit to stand trial in Spain on charges of torture and released him. See Nicholas Watt “Pinochet to be Set Free” The Guardian, 12 January 2000 available at https://​www.theguardian.com/​world/​2000/​jan/​12/​pinochet.chile3 (accessed 11 November 2020).

778 Daniel It is not clear however how the referenced cases can be said, as claimed,188 to manifest a subjugation of immunity ratione materiae to accountability for jus cogens crimes. In not a single one of the cases, did the home State invoke such immunity: Germany did not invoke immunity in respect of Eichmann or Barbie and Argentina did not do so either in respect of Scilingo.189 It may be argued, reasonably, that the non-​invocation of immunity ratione materiae may in itself be evidence State practice and confirm that Germany did not believe that immunity could be invoked on behalf of Eichmann or Barbie. It may however also be argued –​persuasively albeit speculatively –​that given the State responsibility it had already incurred for World War ii –​Germany was unlikely (at Barbie and Eichmann’s trials several years after the war had ended) to claim immunity on behalf of persons who were credited with executing “the final solution” and were respectively nicknamed the Butcher of Lyon and the Architect of the Holocaust,190 On this point it must be acknowledged that arrests in 2019 by Germany and France of high-​level Syrian officials for perpetrating state-​sponsored jus cogens crimes during Assad’s violent repression of insurrection since 2011 represent significant inconsistencies.191 Although Syria has not invoked immunity ratione materiae and is unlikely to do so for defectors,192 it is unclear that any such invocation would make a difference to the ongoing prosecutions in Germany given the possibility they offer to deliver justice in a region where perpetrators of egregious crimes have escaped accountability because of global politics.193

1 88 Tladi Third Report (above note 7), at para. 125. 189 See Third Report of the Special Rapporteur (Roman Kolodkin) on Immunity of State Officials from Foreign Criminal Jurisdiction (A/​c n.4/​646) (2011), at paras. 13-​18 and 53–​55. 190 Christopher Browning The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939 –​March 1942 (University of Nebraska, 2007). 191 Riham Alkousaa “Three Syrians arrested in Germany and France for suspected crimes against humanity”, Reuters, 13 February 2019 available at https://​in.reuters.com/​article/​ germany- ​syria/​three- ​syrians-​arrested-​in- ​germany-​and-​france-​for-​suspected-​crimes-​ against-​humanity-​idINKCN1Q21RR (accessed 4 November 2020). 192 Phillip Oltermann and Emma Graham Harrison “Two Syrian defectors to go on trial in Germany for war crimes” The Guardian, 22 April 2020 available at https://​www.theguardian.com/​world/​2020/​apr/​22/​two-​syrian-​defectors-​to-​go-​on-​trial-​in-​germany-​for-​war-​ crimes (accessed 4 November 2020). 193 Anwar Raslan and Eyad al-​Gharib are under trial in Koblenz (Docket no. 1 StE 9/​19) on multiple counts of crimes against humanity. For details see Jenny Gesley “First Criminal Trial Worldwide on State Torture in Syria Begins”, Global Legal Monitor, 30 April 2020 available at https://​www.loc.gov/​law/​foreign-​news/​article/​germany-​first-​criminal-​trial-​worldwide-​ on-​state-​torture-​in-​syria-​begins/​ (accessed 4 November 2020). See also Human Rights

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This however represents a departure from Germany’s dismissal of a 2004 criminal complaint brought against then Defence Secretary Rumsfeld for torture committed by US forces in Abu Ghraib and Guantanamo Bay.194 Especially noteworthy of Germany in this context has been its steadfast opposition in the UN General Assembly’s Sixth Committee to the notion that immunity ratione materiae may not be invoked for jus cogens crimes.195 Equally noteworthy of France is the fact that there is contrary precedent –​in Rumsfeld196 –​to the jurisdiction it seeks to assert. The fact of Barbie, Eichmann or Scilingo being unable to claim immunity without the intervention of Germany or Argentina, arguably supports a conclusion –​shared by Kolodkin –​that immunity ratione materiae may be invoked for international crimes and that non-​invocation represents more of a waiver by the State entitled to invoke it than affirmation of an international crimes exception to immunity ratione materiae.197 The Third Report’s reliance on Pinochet is not without challenges either. While three of the Law Lords held variously that immunity ratione materiae would not avail a government functionary who commits international crimes, the House of Lords’ decision recognized that a former Head of State would ordinarily have immunity ratione materiae before UK courts but that Pinochet could not invoke immunity because of Chile’s Torture Convention obligations. The decision thus turned not on jus cogens and a finding of an exception to immunity ratione materiae but on treaty law, without which the Court would have found, for Pinochet, a customary international law entitlement to immunity ratione materiae.198

194 195

1 96 197 198

Watch “Syria Torture Trial Opens”, 23 April 2020 available at https://​www.hrw.org/​news/​ 2020/​04/​23/​germany-​syria-​torture-​trial-​opens (accessed 4 November 2020). Fischer-​Lescano (above note 113). See also Scott Lyons ‘German Criminal Complaint Against Donald Rumsfeld and Others’ 2006 10(33) American Society of International Law: Insights. See Statement by Ambassador Dr. Michael Koch on the occasion of the 72nd Session of the UN General Assembly’s 6th Committee’s Consideration of the 69th ilc Report (2017). See also Interview with Professor Claus Kreß, Global impact –​A special trial against Syrian torturers in Koblenz Koelner Stadtanzeiger. See however Ryan Goodman, “United States Supports Germany’s International Arrest Warrant for Accused Syrian War Criminal” Just Security,19 March 2019 available at https://​www.justsecurity.org/​63079/​breaking-​united-​ states-​supports-​germanys-​international-​arrest-​warrant-​accused-​syrian-​war-​criminal-​a-​ rare-​exercise-​universal-​jurisdiction-​general-​jamil-​hassan/​ (accessed 4 November 2020). fidh Press Release (above note 178). Certain Questions of Mutual Assistance in Criminal Matters (above note 155), at paras. 194-​197. Ex Parte Pinochet No.3 (above note 66), at 148.

780 Daniel The contention that there is an exception to immunity ratione materiae for international crimes appears to be borne of fears that unlike immunity ratione personae, immunity ratione materiae is a substantive rather than a procedural defence which may be invoked by any state functionary rather than a select few.199 Such fears of opening floodgates to impunity are however overstated as the invocation of immunity ratione materiae for international crimes would necessarily not be frivolously exercised.200 For immunity ratione materiae to bar the exercise by domestic courts of jurisdiction over a foreign government official it would have to be asserted by the State whose official has committed the criminal acts in question. In cases where a State declines the request of an injured State to lift immunities of its officials who have committed international crimes, it in so doing, recognizes and affirms the officials’ actions as its own thereby incurring liability for said actions.201 The injured State may on that basis, institute proceedings to compel the injuring State to take responsibility for its actions and provide reparations.202 At the heart of the failure to make a conclusive case that immunity ratione materiae may not be successfully invoked by States for international crimes perpetrated by their officials is the question why jus cogens’ superiority would also not override immunity ratione personae of incumbents. As Knuchel observes: … the CAT [Convention against Torture] criminalizes torture without distinguishing between current or former state officials, one does not see why the abrogation of immunity induced by its regime should make this distinction.203 Difficulties in understanding the stated limitations of immunity ratione materiae are also exacerbated by the logic (or lack thereof) of why jus cogens’ superiority would apply in criminal and not civil cases.204 If the overarching need to prevent impunity requires a single-​mindedness to defeat impunity then surely 199 See Noah Benjamin Novogrodsky “Immunity for Torture: Lessons from Bouzari v. Iran” (2007) 18 The European Journal of International Law 939. 200 Kolodkin Third Report (above note 189), at paras. 18 and 60. 201 Article 40 of Draft Articles on Responsibility of States for Internationally Wrongful Acts. 202 Kolodkin Third Report (above note 189) at para. 60. See also ilc Report on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (above note 32), see Chapter ii. 203 Knuchel (above note 49), at 171 –​172. 204 Jurisdictional Immunities of the State case (above note 21).

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such exceptions must also apply to civil cases. In any case State practice fails to substantiate Cassese’s claim that the jurisdictional immunities a State may invoke, and by extension immunity ratione materiae for its functionaries, have suffered such profound attrition as to produce a new customary international law rule invalidating functional immunity for international crimes. 5

Recent Trends in the Development of International Law on Immunities

What may be distilled from the reams of scholarly writings on immunity and exceptions thereto is that there has, over time, been an attenuation of the absolute immunity that States and their representatives could invoke. The notion of exceptions to immunities for breaches of jus cogens human rights norms has gained some currency and is no longer associated with overreaching fringe advocacy. Thus, does Orekhelashvili say that: There is solid doctrinal support for the approach that jus cogens trumps state immunity before national courts, and this has been the case throughout the whole period in which this issue has been arising in practice. In fact, this approach is supported by at least as many scholars as it is contradicted by. It is no longer possible, if it ever was, to consider that the view of primacy of jus cogens is an isolated trend of the small minority, while the majority of scholars support the “traditional” or “orthodox” blanket understanding of state immunity.205 Of Orakhelashvili, it may be said that he doth protest too much! It is not here intended to evaluate the depth of support for each side but to say that the scales of doctrinal support on the subject are evenly balanced would be a stretch. The contestation around what is current international law, lex lata, as opposed to what the law should arguably be if there is a shared commitment to the values that jus cogens norms represent, lex ferenda, will undoubtedly continue apace.206 On the evidence, scholars who oppose the notion that there is a jus cogens exception to immunity are not unpersuaded that such an exception may be critical to ensuring accountability for gross violations of human 2 05 Orakhelashvili (above note 103) at 964. 206 Larry Helfer and Tim Meyer “Codifying Immunity or Fighting for Accountability? International Custom and the Battle Over Foreign Official Immunity in the United Nations” in Curtis Bradley & Ingrid Wuerth (eds.) Custom in Crisis (Duke Law School, 2015).

782 Daniel rights or even that international law should compel such accountability. Their position is that current international law supports neither a jus cogens human rights exception to sovereign immunity nor exceptions to the immunities deriving therefrom. It is this contestation that fuelled the explosive 2017 debate within the ilc on immunities. Curiously, members of the Commission who voted to adopt Draft Article 7 neither gave the reasons for their vote nor addressed the concerns of dissentients that the draft article could only be justified as reflecting new rather than codification of current law.207 Another curiosity was that some of the members who voted to adopt it were dismissive, even scathing, of the authorities presented by the Special Rapporteur as justification for the text of the draft article. According to Tladi, the Special Rapporteur’s Fifth Report –​which proposed Draft Article 7 –​focused inordinately on irrelevant or peripheral issues, inaccurately reflected domestic and international case law and conflated case law from civil and criminal proceedings.208 His views are consistent with Murphy’s, who noted the absence of any State practice, let alone the “widespread, representative, and consistent State practice” that would be required to establish a customary international law norm that asserts exceptions to immunities for international crimes.209 For each of the Article 7 crimes, Murphy notes the total absence of relevant authority in the Fifth Report, especially deriding those presented for torture where the Special Rapporteur cites no international caselaw but five domestic cases, of which the two from the UK, including Pinochet, were decided on different reasons than the Report presents.210 The report of the UN General Assembly’s Sixth Committee which debated the Fifth Report and Draft Article 7 reflects similar disagreement –​a lack of consensus that was also mirrored more broadly in the UN General Assembly. In its topical summary of the debate held on the ilc’s report at the seventy-​ second session of the Assembly, the ilc noted of the General Assembly that: 207 Tladi notes that it has not been the practice of the ilc to make such distinctions of draft articles. To specifically designate Draft Article 7 as new international law rather than codification of lex lata would have the unwitting consequence of stunting its growth as international lawyers would be dismissive of it. Notes on file with author. 208 Provisional summary record of the 3361st meeting (A/​c n.4/​s r.3361) (2017). See also Third Tladi Report (above note 7), at para. 122. 209 Sean Murphy “Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is The State Practice in Support of Exceptions?” 112 (2018) American Journal of International Law Unbound 4. 210 Id. The UK cases included Pinochet which was decided on the basis of Chile’s Torture Convention obligations.

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Several delegations [had] criticized the analysis of State practice in paragraph (5) of the commentary to draft article 7. In particular, it was asserted that the analysis confused the practice relating to State immunity and immunity of State officials; that it focused on civil rather than criminal proceedings; that account had not been taken of cases not prosecuted due to immunity; that there was insufficient analysis of the reasons for denial of immunity by States; that practice disproving an alleged trend had not been considered; that the analysis ran counter to recent international jurisprudence; that there was a bias towards case law from particular regions; that the focus was on treaty-​based exceptions and limitations to immunity, rather than on those based on customary international law; that not enough attention was paid to treaty practice; and that the jurisdiction of international criminal courts had no bearing on the jurisdiction of domestic courts. It was suggested that the Commission establish a working group to further examine the practice of States.211 The contestation, it would seem then, is far from over. 6

Conclusion

One conclusion that may be drawn from the foregoing is that the reasons articulated by Voiotia to justify exceptions to sovereign immunity and derivatives therefrom are deficient in many material respects. Another is that there is, for now, absolutely no exception to immunity ratione personae before foreign domestic courts. On this, there is consensus even among scholars. State practice, manifest through domestic legislation regulating immunity and case law from national appellate courts is remarkably consistent in its rejection of the notion of a jus cogens exception to immunity for not just the troika, but also arguably, other high-​ranking government officials. Both the icj and the ECtHR have, while acknowledging a certain empathy for a values-​based exception to immunity for Heads of State and other high-​ranking

211 See Topical summary of the discussion held in the Sixth Committee of the General Assembly during its seventy-​second session prepared by the Secretariat, Report of the International Law Commission, Seventieth Session, General Assembly Official Records (A/​ cn.4/​713) (2018).

784 Daniel government officials, found that such an exception would not be consistent with current international law notwithstanding robust dissents.212 The application of immunity ratione materiae on the other hand engenders furious debate and the law is at best uncertain. While there appears to be support for limiting the scope of immunity ratione materiae,213 the logic of Kolodkin’s position –​that “[t]‌here can scarcely be grounds for asserting that one and the same act of an official is, for the purposes of State responsibility, attributed to the State and considered to be its act, and, for the purposes of immunity from jurisdiction, is not attributed as such and is considered to be only the act of an official” –​has not received satisfactory rebuttal. The question why jus cogens crimes should only compel accountability against functional and not personal immunity, or, in criminal and not civil cases hasn’t either received a satisfactory response. The undergirding values notwithstanding, the assertion of an exception to immunity for jus cogens crimes is neither consistent with the rationale for functional immunity214 nor supported by the practice that would be required to establish such exceptions. Not yet at least. In Habré and Rumsfeld, there is caselaw and practice to the contrary. The regressive pushback that has resulted from the ilc’s arguable overreach in adopting Draft Article 7 –​even from ordinarily progressive countries such as Germany –​suggests that the precise scope of immunity ratione materiae will remain contested.215 In the push for the progression of norms to ensure accountability for international crimes by invalidating immunities, it may be wise to heed Judge Pelonpaa who, in Al-​Adsani, warns of pyrrhic victories.216 . The appropriate response to the titular question would seem then to be, in the circumstances, a little bit of fact, a little more of fiction and even yet more of wishful thinking. 212 Arrest Warrant case (above note 18). See also Jurisdictional Immunities of the State case (above note 21). See however Dissenting Opinion of Van der Wyngaert in Arrest Warrant case (above note 18). 213 Akande and Shah (above note 2). 214 Zoernsch v. Waldock (above note 164), at 692. 215 See German stance on ilc Draft Article 7 on Immunity (above note 144). See also Cedric Ryngaert “Functional immunity of foreign State officials in respect of international crimes before the Hague District Court: A regressive interpretation of progressive international law” ejil:Talk!, 20 March 2020 available at https://​www.ejiltalk.org/​functional-​immunity-​of-​foreign-​state-​officials-​in-​respect-​of-​international-​crimes-​before-​ the-​hague-​district-​court-​a-​regressive-​interpretation-​of-​progressive-​international-​law/​ (accessed 4 November 2020). 216 See Judge Pelonpaa in Al-​Adsani v. United Kingdom (above note 53).

Index Abrogation 59, 97–​98, 780 accepted (acceptance) 4–​6, 13–​15, 22, 38, 45, 55, 57–​59, 61, 63–​65, 68–​69, 71, 86–​90, 93, 96, 105, 107–​108, 110, 118, 120, 122–​ 130, 133, 138, 143, 153–​154, 160, 163–​164, 166, 171, 191, 193, 210, 217–​218, 230, 246, 259–​260 262, 263, 269, 273, 279, 281, 285, 290–​291, 293, 299–​301, 319, 322–​ 324, 235, 343–​344, 348, 354, 362, 368–​ 369, 371, 375, 393, 398–​399, 407, 435, 451, 475–​476, 478, 480–​483, 493–​494, 498, 510, 516–​517, 520, 522, 524, 526, 537, 544–​545, 559, 565, 572, 576, 587, 589, 591, 600, 605, 608–​611, 614, 617, 619, 624, 627, 633–​635, 643, 646, 653, 656, 664, 666, 676, 689, 696, 699–​700, 702–​704, 712–​714, 721, 723, 726–​727, 730, 732, 734, 736–​737, 739, 749–​750, 766, 768, 774, 777 access to justice 30, 333–​334, 337, 360 accountability 192, 229, 334, 519, 563, 569, 740, 745–​746, 748–​749, 753, 757, 759, 763, 778, 781–​782, 784 actio popularis 80, 316, 356 acta jure gestionis 753, 764 acta jure imperii 753–​754, 762, 764 act of State (acts of State) 98, 139, 158, 172–​ 173, 175, 499, 504, 745, 753 African Commission on Human and Peoples’ Rights 280, 626–​627 699 African jus cogens 277, 323 African Union (au) 9, 212, 236, 260–​261, 268, 273, 283, 293–​297, 511, 644, 646–​ 650, 652, 658, 704, 716, 722, 746 American Convention on Human Rights (Pact of San José) 100, 174, 281, 313, 319, 321, 330, 484 American Declaration of Rights and Duties of Man 319, 321 American jus cogens 323 Amnesty 236, 334–​335, 340, 359, 617, 622 Aggression 14, 23, 28, 47, 82. 105, 108, 110–​114, 120, 154, 161, 178, 214–​215, 259, 262, 287, 314, 346, 354–​355, 424, 450, 453, 480, 492–​493, 512, 579–​580, 630–​637, 644,

648, 656, 660, 671–​672, 675, 683–​684, 686–​687, 700–​701, 714, 728, 732, 761 Apartheid (prohibition of) 23, 47, 80, 127, 178, 215, 259, 264, 266, 275–​276, 289, 346, 424, 435, 437, 480, 484, 510, 512, 521, 545–​546, 549, 564, 578–​580, 584, 598, 687, 700–​701, 742 Arab Charter on Human Rights 693 Arbitration 73, 353, 356, 375, 377, 379, 416, 430, 434–​435, 463, 509, 514, 522, 526. 527, 528, 532–​536, 555–​556, 558–​559, 562, 643, 654, 699, 708, 708 Arbitration Commission 463, 699, 708–​709 auto-​interpretation (auto-​ determination) 10, 12, 16, 135–​136, 366–​369, 374, 378, 384–​385, 449 Berlin Conference of 1884–​1885 389 bilateral investment treaties 518 bribery (prohibition of) 527, 557 British Indian Ocean Territories (biot) 389 characteristics 1, 4, 15, 25, 61–​63, 65, 95, 112, 213, 305, 329, 383, 466, 507, 516, 590, 600, 514, 615, 617, 628, 714–​715, 728, 739 circumstances precluding wrongfulness 230, 235, 659–​660, 663, 666 Committee on the Elimination of Discrimination against Women 479, 484, 487 Communitarian 69, 79, 83, 90 Compensation 12, 57, 233, 413–​421 422, 423–​424, 426–​429, 431–​433, 435–​437, 439–​440, 558, 561, 718, 766 Arbitrary 186, 351, 373, 376, 385, 391, 429, 432, 455, 480–​481, 507, 548, 627 Discretion 515, 166, 237, 395, 428–​429, 433–​434, 436, 453, 472–​474, 490, 497, 499–​502, 504–​505, 507, 568 Equity 12, 428–​429, 433, 440, 479, 488, 566 Flexibility 137, 162, 428, 531, 554, 744 Gravity 112, 231, 335, 362, 434–​435, 439, 673, 682, 762, 769, 777

786 Index Compensation (cont.) quantification of  material harm 426, 429 moral/​non-​pecuniary harm 12, 426–​ 429, 435 environmental harm (Harm to the environment)576, 577, 585, 687  expulsion 268–​269, 282–​284, 286, 432 lost earnings 425 wrongful death 416, 429 reasonableness 368, 432, 440, 560 seriousness 160, 357, 432, 434–​435, 439, 474 collision (also conflict) 5–​7, 9, 14, 22, 24, 28, 30–​32, 36–​40, 45, 56–​58, 71, 73, 75, 77, 88, 92, 105–​106, 110, 116–​119, 137–​139, 143–​146, 149–​150, 152–​153, 155, 161–​163, 166–​168, 170–​172, 174–​175, 177–​185, 187–​189, 191–​193, 216–​218, 220–​221, 239, 246, 249–​250, 252, 268, 273, 278, 288, 292, 296–​297, 303, 305, 311, 328, 331, 323, 344, 352, 356, 358, 360, 363, 366–​367, 372–​373, 379, 381–​382, 392, 399–​400, 421–​422, 424, 437–​438, 443–​445, 447–​ 448, 450–​456, 461–​467, 475–​476, 484–​ 486, 503, 519, 531, 536–​538, 545, 571, 573, 585, 597, 602, 604–​605. 612, 619, 621, 634, 646–​647, 650, 655, 657–​658, 674, 678–​679, 690–​691, 693, 701 706, 707–​ 708, 731–​732, 740, 745, 748–​749, 754, 757, 761, 772 consent 64, 72–​73, 99, 110, 123–​126, 135, 145, 156, 174, 179, 186, 191, 204, 206–​208, 228, 292, 294, 315, 326, 342, 353, 364, 366, 369, 379, 381, 385, 390, 448, 506, 529, 524–​525, 577, 610, 619, 635, 645, 651–​ 652, 655–​656, 663, 698, 708, 714, 717, 719, 721, 723, 728, 732–​740, 745, 755, 765 constitutionalisation 509–​510 core content 109–​110 countermeasures in the collective interest 236, 551 counter-​terrorism 601, 607, 617–​620, 622–​ 623, 627–​628, 660 crimes against humanity (prohibition of) 23, 31, 47, 52, 178–​179, 190–​191, 215, 259–​263, 291, 293, 295, 299, 331–​333, 335–​336, 339–​341, 346, 351, 358, 361,

384, 480, 484, 512, 546, 576–​577, 584, 586, 598–​599, 646, 687, 700, 741–​742, 750–​751, 754, 766, 778 criteria 4, 14–​15, 23, 40, 48, 60–​61, 64, 86–​87, 92–​95, 110, 112, 122, 133, 144, 160, 241, 267, 277, 289, 345, 351, 356, 383, 422, 425, 462, 492, 548, 564, 567, 577, 587–​ 589, 591, 599–​600, 608–​609, 614–​615, 617, 634, 702–​703, 713, 727, 737 cruel, inhuman and degrading punishment 281, 283, 331–​332, 351, 480, 486, 495, 617, 655, 746, 767 cultural property 423–​424 customary international law 5–​6, 8, 23, 30, 36, 46, 52, 56, 69, 88, 96, 98, 101–​102, 106, 116–​118, 120, 123, 125–​127, 139, 145, 152, 158–​162, 190, 204, 208, 217–​218, 242, 244–​245, 250–​251, 260, 282, 289, 292, 298, 307, 312, 325, 349–​350, 361, 364, 367, 376–​378, 381–​382, 387, 392, 394, 398, 400, 403, 410, 460, 463, 471, 485–​486, 495, 498, 518, 522–​523, 532, 587, 604, 608–​610, 617, 627, 667, 692, 699–​700, 704–​705, 707, 712, 717, 720, 722–​723, 729–​730, 743–​745, 747, 755, 761–​762, 767–​768, 771–​772, 774–​776, 779, 781–​783 decolonisation 5, 69–​70, 72, 74, 85, 90, 208–​ 212, 263, 270, 383 decentralised (also decentralisation) 175 demotion 97  dignity (human dignity) 47, 50, 55, 328, 330, 428, 502, 506, 543, 612, 615, 622, 627–​ 628, 669, 684, 690, 746, 769 discretion 151, 166, 237, 395, 428–​429, 433–​ 434, 436, 453, 472–​474, 490, 497, 499–​ 502, 504–​505, 507, 568 discrimination (prohibition of) 13, 23, 47, 55, 82, 127, 178, 186, 214–​215, 259, 262, 264, 272, 275–​276, 284, 312, 314, 328–​ 330, 337 346, 347, 354, 419–​420, 424, 471, 473, 478–​489, 494, 502, 505, 507, 512, 521, 545, 548, 579, 619, 669, 687, 701, 765. dispute settlement (settlement of disputes) 3, 11–​12, 73, 81, 147–​148, 181, 198, 343, 350, 352–​354, 357, 366–​371,

Index

787

373, 375–​376, 378–​379, 381–​382, 384–​ 385, 413–​414, 421, 426, 445, 449, 515, 518, 523, 525–​527, 530–​531, 535–​536, 538, 540, 545, 678, 680, 717 duty of co-​operation (duty to co-​ operate) 212, 684 duty of non-​intervention (Principle of non-​intervention) 680 duty to investigate 332–​335, 337

598, 621, 643–​644, 648, 667, 693, 700, 702–​703, 731, 758–​759, 766, 768, 777–​ 778, 781 execution of minors 321–​322 exceptions 22, 28, 96, 103–​109, 112, 115–​116, 118, 127, 130, 238, 264, 311–​312, 361, 406, 543–​544, 548–​550, 565, 613, 634, 653–​ 654, 663, 666, 687, 744–​745, 747, 749, 756, 766, 768, 771–​772, 781–​784

East-​West 682 ecocide 586 effective occupancy (principle of) 389 emergence 5, 70, 87, 90, 97–​98, 105, 108–​109, 111, 117–​120, 124, 127, 134, 138, 161–​162, 184, 188, 207, 261–​262, 275, 279, 293, 298–​299, 305, 315, 342, 392–​393, 509, 563, 570, 574, 576 581, 583, 590, 594, 668–​669, 709, 722, 731–​732, 758 enforced disappearance (prohibition of) 253, 305, 332–​333, 335, 347, 358, 481, 741–​742 enhanced interrogation 620–​622 environmental crimes 576, 585–​586, 596, 598 environmental protection (preservation of the human environment) 13–​14, 47, 221, 223, 420, 481, 558, 575–​577, 580, 583, 588, 591–​593, 597–​599, 674, 687 erga omnes partes 217, 219–​221, 310–​311, 315–​318, 420 equal protection 55, 328, 337, 485 Eritrea-​Ethiopia Claims Commission 422, 630 European Convention on Human Rights 10, 100, 171, 253, 302–​306, 308–​309 European Court of Human Rights 56–​57, 100, 145, 151, 170, 197, 246, 252, 306, 308, 315, 321, 348, 420–​421, 428–​429, 446, 461, 506, 512, 580, 626, 749, 758, 763 European ordre public 10, 303, 305 European Union 54–​55, 140, 150, 152, 157, 167–​168, 249, 357, 451, 454–​455, 459, 511, 519, 536, 717 evidence 5, 8, 11, 13–​14, 25, 31, 58, 106, 126–​127, 162, 172, 253, 262, 275, 285, 291, 296–​297, 299–​300, 325–​326, 332, 393, 398, 401, 431–​432, 435, 439, 478–​497, 499–​501, 505–​506, 540, 458, 588–​589,

fair trial 600, 617, 622–​625, 627–​628 feminist (feminism) 473–​474, 482, 501–​507 Fourteen Points 689 Fragmentation 33, 51, 58, 93–​94, 106, 112, 116, 119, 138, 143–​145, 148, 150–​151, 153–​154, 175, 189, 232, 32, 315, 356, 377, 399, 466, 477, 509, 514, 415, 516, 530, 533, 535–​537, 658, 700–​701 fundamental principles (also basic principles) 67, 73, 136, 170, 269, 417, 460, 555, 624, 671, 681, 704–​705, 711, 724 fundamental values 55–​67, 95, 107, 126–​127, 178–​179, 182, 193, 259, 275, 285, 302, 317, 325, 353, 382–​383, 476, 513–​514, 519, 527, 543, 557, 575, 577–​578, 588–​589, 592, 612, 614–​616, 628–​629, 714, 727, 739 General Assembly  Sixth Committee 1, 4, 62–​66, 75, 78, 227, 230, 237–​241, 243, 254, 380–​382, 405, 465, 513, 613, 637–​638, 642, 661, 664, 666, 671–​673, 701, 779, 782–​783 general principles of law 54, 89, 195, 260, 357, 532, 587, 731 genocide (prohibition of) 7, 23, 47, 51–​56, 61, 81–​82, 114, 127, 133, 161, 168, 172, 174, 178–​179, 186, 190–​191, 199, 205, 207–​208, 214–​215, 231, 251, 259–​263, 291, 293, 295, 299, 309, 314, 325, 346, 348, 350–​351, 354–​355, 357, 361, 399, 419, 424, 444, 448, 453, 463–​464, 480, 486, 493, 498, 507, 511–​512, 519, 521, 524, 545–​546, 549, 551, 558, 560, 562–​564, 571, 575, 577, 579–​580, 586, 588–​590, 597–​598, 600, 604, 646, 655–​ 656, 671, 686, 700–​701, 714, 741–​742, 749–​751, 753–​754, 767 gender biases 474, 490, 497, 501, 503–​505

788 Index General Assembly (cont.) gender discrimination (prohibition of) 13, 473, 478–​479, 482–​484, 487–​ 489, 502, 505 good faith 4, 33, 37, 39, 75, 147, 152, 368, 376, 459, 537, 548, 553, 680, 682, 738 Guantanamo Bay 618, 621, 625, 776, 779 Helsinki Final Act 693–​694, 722 hierarchical superiority 15, 22, 46, 53, 59, 62, 106, 137, 141–​143, 161, 165, 173, 193, 304, 575, 575, 615, 628 hierarchy  destruction-​hierarchy 24 formal hierarchy 37. 44, 46, 49 material hierarchy 44, 46 precedence hierarchy 24, 143 hijacking 602 human rights 16, 26–​27, 29, 31, 50, 54, 56, 85, 100, 118–​119, 142, 157, 169–​171, 176, 178, 182, 187–​189, 230, 263, 268, 275, 280–​281, 284, 289, 291, 295, 299, 305, 307, 309, 311, 313, 315–​318, 320–​321, 323, 325, 328–​ 329, 333, 335, 337–​339, 346, 350, 363, 393–​394, 410, 424, 440, 446, 461–​462, 474, 484, 488–​489, 502, 512, 514, 525, 534–​535, 542–​543, 545, 549, 557–​558, 562, 567, 571, 596–​597, 621, 628, 647, 671, 675, 684–​685, 693, 709, 740–​741, 744–​746, 748, 751, 755–​757, 760, 763, 786 Human Rights Committee 7, 170, 186–​187, 456, 462, 485, 487, 624, 699, 746 humanitarian 16, 23, 25, 27–​28, 34, 47, 53, 56, 98, 110, 116, 119, 122, 129, 142, 178, 187, 214–​221, 243, 251, 251, 259, 261, 283, 291–​298, 300, 308–​309, 314, 349–​350, 357, 417, 422, 426–​427, 438, 443, 453, 480, 486, 498, 512, 546–​547, 559, 583, 600, 622–​623, 635, 654–​655, 660–​662, 669, 675–​676, 683, 685–​687, 700–​701, 751, 763 humanitarian intervention 97, 109, 117, 119, 123, 129–​130, 291–​293, 297–​298, 300, 660–​662 identification 5, 10, 13, 24, 28–​29, 61, 64, 68, 86–​87, 89, 94–​96, 110, 112, 124, 126–​127, 131, 133, 158–​160, 162, 177, 180, 186, 194,

198, 225, 250, 262, 275, 277, 305, 343, 345–​347, 349, 351, 357, 377–​378, 473–​ 475, 478–​479, 481, 483, 489–​490, 493–​ 502, 504, 507, 512, 516, 583, 587, 608, 610, 691–​692, 699–​700, 702–​703, 707 illustrative list (non-​exhaustive list) 1, 47, 94, 259, 590, 726 immunities  exceptions 103, 361, 744–​745, 749, 756, 766, 771, 781–​782, 784 heads of State 740, 743–​745, 748, 756, 759, 771 implied waiver 755, 759, 767 ratione materiae 360, 740, 745, 756, 768, 771, 755, 780–​782, 784 ratione personae 741, 745, 756, 768, 771, 775, 780 Sovereign 361, 363, 476, 717, 724, 729–​ 730, 741, 743–​749, 753–​758, 762, 766–​ 767, 772–​774, 782–​783 State 16, 57, 142, 145, 163, 188, 238, 248, 358, 360, 363–​364, 372, 384, 717, 724, 729–​730, 740–​745, 748, 750, 752–​757, 759, 762–​763, 769–​770, 772–​773, 778, 781, 783 Indeterminacy 121 injury  extent of harm 425–​426 material 422, 426–​428, 605 moral harm (non-​pecuniary harm) 425–​428 Standard of proof 429, 439, 667 burden of proof 431, 439 Institute of International Law (Institut de Droit International) 652 Inter-​American Commission of Human Rights 10, 322 Inter-​American Court of Human Rights 9–​ 10, 54–​55, 57, 174, 236, 305, 320–​321, 326–​328, 330–​336, 338–​339, 347, 351, 356, 400, 405, 427, 475, 482, 485, 484, 504, 512, 626 Inter-​American Human Rights System 10, 319, 322, 324, 334 internal affairs 26, 671, 695, 721, 752 International Commission of Jurists 690 international community of States 4–​5, 13–​14, 25, 45, 58–​59, 65, 68, 71, 74, 78–​79,

Index 82, 84, 86–​90, 93, 95, 98, 108, 119–​120, 122–​126, 129–​130, 133, 193, 230, 248, 276, 301, 320, 323–​324, 344, 383, 398–​399, 475, 480–​483, 493, 510, 572, 587, 591, 600, 608–​611, 614–​615, 617, 624, 634, 642, 666, 702–​704, 713, 727 International Court of Justice (icj) 4, 7–​9, 11–​12, 40, 51, 61, 68, 73–​76, 79–​82, 88, 90, 108, 115, 119, 129–​130, 141, 181, 186, 193, 195–​196, 208, 214, 217, 222, 224, 264, 270–​271, 309, 321, 343, 347, 353, 360, 366, 368–​369, 376, 379, 381–​382, 385–​ 386, 393, 395, 398, 402, 405, 416, 447, 451, 456, 493, 510, 536, 571, 589, 614, 629, 633, 642–​643, 691, 705, 768, 776 International Criminal Court (icc) 261, 282, 423, 571, 654, 743, 750, 752, 764 International Criminal Tribunal for Rwanda 362 International Criminal Tribunal for the former Yugoslavia (icty) 55–​56, 141–​ 142, 165, 358, 361–​362, 475, 511, 610–​611, 625, 718 international economic law 509–​510, 513–​ 517, 525, 533, 540–​541, 546, 571, 574 international financial institutions 563–​ 564, 566, 569 international investment law 429, 509, 514–​ 515, 525, 553, 560, 562 International Law Commission  Draft Conclusions on the Identification of Customary International Law 126–​ 127, 250, 378, 699, 707 Draft Conclusions on Peremptory Norms 1, 8, 15, 21, 23–​26, 28, 37, 44, 47, 60, 62, 71, 86–​88, 94, 96, 104–​105, 116, 121–​123, 126–​127, 139, 150, 153, 177–​178, 182–​183, 185, 188, 194, 201, 215, 219, 229, 235–​237, 259, 262, 302, 310, 314, 319, 323–​325, 346, 366–​367, 370, 377, 400, 413, 441, 471, 512, 517, 521–​522, 536, 575, 588–​590, 611, 615–​616, 629–​630, 657, 659, 665, 683, 691, 700, 702, 705, 707, 710, 714, 731 international humanitarian law (also basic principles of) 23, 28. 34, 47, 178, 214–​221, 225, 243, 259, 261, 291, 300, 338, 346, 349–​350, 357, 359, 363, 422,

789 426–​427, 443, 480, 486, 512, 546–​547, 559, 583, 600, 623, 654–​655, 675, 687, 700–​701, 763 international organisations 6, 136, 140, 157, 164, 167, 212, 248–​250, 343, 377, 443, 511, 519, 563, 567–​568, 651, 714, 725, 732–​736 interpretation,  customary interpretation 101–​102, 135, 139, 158–​164, 312, 460, 530, 533, 667, 717, 729 consistent (also conciliatory) 136, 138–​ 141, 143–​147, 149–​150, 152–​154, 157–​158, 160, 162–​164, 168–​169, 172–​173, 175, 462, 465, 554, 657, 729, 784 Draft Conclusions on Subsequent Agreements and Subsequent Practice 112–​113 dynamic, 100–​102, 160 Security Council resolutions 140, 146, 149, 158, 164–​165, 168, 170, 172, 456–​462, 464–​465 treaties 100–​102, 139, 141, 143, 147, 149–​ 151, 153–​154, 157–​158, 162, 164–​165, 173, 367, 373, 444, 457, 459, 533, 537, 657–​ 659, 717–​718 intransgressible principles 217, 349 invalidity of treaties  Intertemporal aspects of 180 legal consequences of 177, 179–​181, 183, 187, 192, 352, 399, 444, 517, 656, 674 investment disputes 147, 414, 426–​427, 518, 525–​526, 553, 556, 561 inviolability 30–​31, 204, 361, 721, 770 Iran-​United States Claims Tribunal 421, 430 jus dispositivum 35, 46, 94, 98, 103, 105, 108–​109, 111, 118, 120, 212, 132, 165, 476, 532, 573, 577 jus ad bellum 110–​111, 129, 297–​298, 368, 422–​423, 437, 630, 642, 651–​652 just war 601 legal consequences of invalidity 177, 444–​ 445, 456 legal technique view 34–​37, 40, 42 lex generalis 35, 49, 151 lex specialis 34–​35, 42, 49, 151, 460, 552 lex inferior 32, 49

790 Index lex superior 23, 49, 118 logical jus cogens 4, 33, 37, 39 methodology 13, 16, 159, 216, 225, 440, 473–​ 474, 478–​479, 489–​491, 495–​498, 500–​ 501, 504–​505, 507, 512, 535, 702 methodological failures 504 Middle Ages 41 Modification 5–​6, 67, 92–​99, 101–​107, 109, 111, 113, 115–​131, 163, 313, 464, 581, 586–​ 587, 731 morality 55–​56, 94, 544–​545, 547, 549, 588–​ 589, 602, 620 natural law 53, 63, 472, 499, 577–​578, 589, 610 national liberation movements 265, 613 Newly Independent States (also new States) 5, 69, 72, 74, 76, 79–​80, 82, 90, 260, 264, 391, 670, 672, 680 Non-​Aligned Movement 130, 293 non-​derogation 39, 399, 615 non-​State actors 5, 97, 108–​109, 129, 163, 189, 441, 476, 561–​562, 602, 611 normativism 471–​472, 499 North-​South 682 nullity 6–​7, 22, 26, 36–​39, 41–​42, 49, 138, 168, 174–​175, 311, 344, 346, 352–​353, 355–​356, 364, 375, 517, 657 occupation 246, 264–​265, 269, 272, 275, 287, 389, 404, 411, 420, 422–​424, 612, 612, 624–​625, 652, 747 Occupied Palestinian Territory 52, 214, 236, 243, 357, 359–​360, 387, 403, 417, 424 Office of Legal Affairs 671 Codification Office 672 opinio juris  cogentis 123–​124, 351, 482, 610, 707 sive necessitates 124, 702 ordre public (public order) 10, 59, 133, 303, 305, 355, 519, 526, 544, 574, 630 Organisation of African Union (oau) 9 Organisation of American States 511, 716, 722 non-​refoulement 7, 9, 177–​178, 190, 260–​261, 263, 281, 283–​291, 300, 476, 481 optional clause 368–​369

pacta sunt servanda 4, 33–​34, 37, 39, 175, 178 peace and security 7, 15, 70, 113, 115–​116, 268, 294, 336, 392, 447, 450, 455, 549, 576, 578–​579, 584–​585, 598, 604, 613, 616, 629, 644, 647–​650, 671, 680, 682, 684, 686, 731 Permanent Court of International Justice 12, 135, 414, 452, 717, 720–​721 plebiscite 407–​408, 689 positivism (positivist) 13, 133, 471, 427, 474, 478, 489–​490, 497, 499–​501, 503–​505, 507, 513, 577, 589 political independence 438, 717, 710, 721–​ 722, 730, 739 prescription (non-​application of) 334–​337, 340, 353, 355 primary rules (norms) 111, 180, 201, 205, 231, 521, 593, 668–​669, 672–​676, 679, 686, 757 pro homine 100 proportionality 560, 620 prisoners of war (protection of) 28, 220, 363–​364, 547, 625, 674, 676 public policy 38, 48, 50, 70, 322, 516–​517, 526–​529, 539, 541, 546, 555–​557 public utility 4, 35, 37–​43, 305 racial discrimination (prohibition of) 23, 47, 82, 127, 178, 186, 214–​215, 259, 262, 272, 275–​276, 314, 346, 354, 419, 429, 424, 480, 484, 507, 512, 521, 545, 579, 669, 687, 701 reasonableness 368, 432, 440, 560 Restitution  restitutio in integrum 415 regional jus cogens 3, 9–​10, 22, 77, 133, 271, 288–​289, 314–​320, 326, 329, 335–​336 refugees 190, 261, 281–​290, 300 reparations  full reparation 12, 413–​417, 425, 435–​440 war reparation 422, 437 reservations 7, 55–​56, 99, 173–​174, 177–​178, 180, 185–​187, 190, 303, 308–​311, 317, 323, 353–​354, 368–​369, 376–​377, 385, 395, 445, 482–​483, 486–​488, 491–​493, 500, 536, 588–​589 responsibility to protect 189, 291, 295–​296 restitutio in integrum 415

Index right of intervention (humanitarian intervention) 116–​117, 119, 129, 260, 291–​293, 297–​300, 645–​646, 649 Roman law 40–​41 Satisfaction 233, 415–​416, 420–​421, 436, 495, 565, 671 Secession (also secede) 265, 276–​281, 391, 698–​699, 707–​708, 711 secondary rules (norms) 180, 201, 205, 231, 351, 673–​674 Security Council  decisions (resolutions) 1, 6–​7, 168–​ 169, 371, 441–​442, 445–​449, 451–​453, 464, 466 reviewability of acts 454–​455 self-​defence 99, 103, 105, 107–​108, 163, 228, 359, 368, 463–​464, 612, 632–​635, 646, 652–​653, 655–​656, 661, 675, 685, 717, 722, 731 self-​determination  external 14, 264, 685, 694, 707, 711–​712 internal 391, 694, 709, 711 national 690, 696 peoples’ 690 silence 29, 84, 102, 126–​127, 129, 209, 224, 310, 474 serious breaches of peremptory norms under general international law 8, 83, 114, 134, 228–​229, 232, 234, 239, 243, 248, 251, 253, 259, 400, 411, 567, 583, 664, 710 separability (severability) 7, 177–​178, 180–​ 185, 446 September 11 (9/​11) 602, 755 slavery (prohibition of) 47, 82, 161, 178, 183, 201, 214–​215, 259, 262, 275, 311, 325, 336–​ 337, 346–​347, 354, 358, 388, 423–​424, 437, 480, 493, 510, 512, 552, 558, 562, 579. 580, 600, 700–​701 socialist international law 10, 306–​307, 317 sovereign equality  composite 714–​715, 728, 730, 739 constituent elements 728, 730 nature 714, 718, 728, 730, 739 sovereignty 33, 73, 95, 145, 250, 268–​270, 272, 274, 277, 279–​281, 295, 297, 350, 389, 391, 394, 401, 416–​417, 419, 572, 670, 672, 682, 689, 689–​690, 694, 706, 713, 715–​716,

791 719, 730, 722, 273, 726–​727, 729, 731–​734, 736, 745, 747, 766 Special Tribunal for Lebanon 358, 458, 460, 608, 610 State-​centric 5, 668–​669 State practice 8–​9, 14, 65, 110, 116–​118, 125, 128–​129, 146, 157, 164, 212–​213, 241, 259, 263, 26, 275, 299, 301, 324, 344, 400, 406, 442, 493, 505, 572, 609, 617, 624, 635, 643, 645, 657–​658, 661, 667, 691, 699–​ 700, 704, 706, 711–​712, 743, 760–​762, 768, 771–​772, 778, 781–​783 State responsibility 7–​8, 22, 28, 31, 37, 58, 69, 79–​80, 83, 85, 89, 111, 113–​115, 134, 163, 198, 201–​203, 205, 213, 227–​243, 344, 245–​247, 251–​255, 306, 314–​316, 359, 364, 372, 377, 400, 403, 413–​416, 423, 425–​427, 434, 438, 449, 520, 551, 553, 559, 561, 568, 576, 578–​579, 582–​583, 591, 597–​599, 631, 633, 651, 657, 659–​ 660, 662–​663, 665–​666, 669, 671–​672, 674, 676, 683–​684, 687, 714, 726, 748, 778, 784 substantive view 21–​22, 26–​30, 33, 42 systemic integration 11, 151–​152, 154, 157, 164 termination 31, 180–​181, 185, 188, 223, 264, 367, 370, 373–​376, 378, 380, 656, 776 territorial integrity 26, 113, 212, 248, 268–​ 269, 276–​277, 280–​281, 391, 394–​395, 397–​398, 401–​405, 408, 410–​411, 419, 650, 672, 686, 693, 695, 698, 708–​709, 717, 719, 721–​722, 730. terrorism  definition 263, 382, 600, 604–​608, 619, 627 prohibition of 14–​15, 193, 382–​383, 481, 486, 600, 605, 607–​611, 613 torture (prohibition of) 7, 23, 29, 47, 53, 56–​57, 127, 138, 146, 157, 178, 214–​215, 253, 259, 262, 275, 311, 314, 331–​332, 328, 350, 354, 359, 372, 480, 486, 492–​493, 495, 512, 545, 571, 580, 583, 598, 600, 617–​620, 622, 628, 655, 687, 700–​701, 746, 750, 757–​758, 762 transnational public policy 527, 555. 556. 557 trade law 510, 514–​515, 525, 537, 541, 545

792 Index trusteeship system 393, 692 Truth and Reconciliation Commission  424, 435 non-​assistance, obligation of 229, 237–​ 238, 242, 247, 251 non-​recognition, obligation of 8, 229, 237–​ 239, 242, 247–​250, 252, 254, 402, 404, 503, 520, 664–​665 UN Charter 14, 50, 96, 100, 102, 104–​106, 108, 111–​112, 114–​116, 122, 124, 130, 140, 144, 154, 164–​167, 169, 181, 198, 208, 248, 254, 271, 293, 296, 376, 392, 394–​396, 398, 441, 446, 550, 577, 630–​632, 642–​643, 645–​651, 653, 655, 657–​660, 665–​667, 670, 677, 679–​681, 684, 686, 691, 693, 696, 710–​712, 715–​716, 718, 721–​722, 727, 733–​734, 736–​739 Unilateral 6–​7, 12, 37, 80, 108, 116, 119, 129, 135, 139, 158, 171, 172–​175, 228, 236, 270, 294, 294–​295, 297–​299, 349, 354, 366–​ 373, 375, 377–​379, 381, 383, 385, 399, 447–​450, 459, 493, 517–​518, 521–​523, 537, 544, 549, 552, 635, 645, 696, 698 United Nations Commission on International Trade Law 325  United Nations Claims Commission 418 United Nations Special Committee on Decolonization 407–​409 Universality 74–​78, 106, 121, 126, 201–​202, 324, 545, 560, 565, 760, 763 universal jurisdiction 336, 359, 361, 367, 572, 741, 750–​752, 759–​764 universal values 36, 324, 363, 567

use of force (prohibition of) 47, 51–​52, 96–​97, 99, 102, 104–​105. 106, 107–​113, 11`4, 115, 117–​120, 124–​125, 127, 129–​130, 154–​155, 163, 165, 175, 181, 228, 247–​248, 254, 168, 292–​293, 296, 347–​349, 354, 368, 417, 450, 480, 521, 629–​639, 643, 645, 647, 651, 653–​659. 660, 661–​664. 665, 666–​669, 673, 675, 678, 680, 682–​684, 686–​687, 692, 701, 722, 728, 730–​731, 735–​738 uti possidetis 11, 277–​278, 388, 390–​392, 406, 408, 698, 708 Vienna Convention on the Law of Treaties 11, 21, 23, 36, 39, 45, 58, 66, 71, 74–​75, 90, 93, 96, 108, 112, 133, 155, 157, 180, 193, 227, 241, 302, 305, 315, 321, 323, 343, 350, 367, 370, 376–​377, 381, 385, 398–​400, 443, 459, 475, 487, 506, 510, 575, 600, 634, 675, 692, 716, 720, 736, 748 voidness (void) 23–​24, 27–​28, 31, 33, 36–​38, 144, 177 voluntarism 342, 365 war crimes 179, 189, 260–​261, 263, 291, 293, 295, 299, 339–​341, 361, 585–​586, 646, 654, 747, 751–​752, 766 Western Sahara 150, 157, 266–​267, 269, 272, 274–​275, 385, 402, 520, 696, 709–​710 World Trade Organisation (wto) 519 World War i 750 World War ii 49, 437, 576–​577, 580, 586, 600, 690, 750, 754, 764, 766, 778