KATHOLIEKE UNIVERSITEIT LEUVEN

FACULTEIT RECHTSGELEERDHEID

NORMS OF JUS COGENS IN INTERNATIONAL LAW

A POSITIVIST AND CONSTITUTIONALIST APPROACH

Sten Verhoeven

Proefschrift aangeboden tot het verkrijgen van de graad van

Doctor in de Rechten

Onder supervisie van Prof. dr. Jan Wouters en Prof. dr. René Foqué

2011
 TABLE OF CONTENTS
Table of contents ___________________________________________________________ i
Acknowledgments ___________________________________________________________ v
Introduction ______________________________________________________________ vi
Context and purpose of the thesis __________________________________________ vi
Research questions and methodology _______________________________________ xi
Chapter.1. The definition of jus cogens in the Vienna Convention on the Law of
Treaties 1
SECTION.1. Introduction _______________________________________________ 1
§1. The need for a definition of jus cogens _______________________________ 1
§2. The existence of secondary rules in international law ___________________ 3
§3. Elements of identification of peremptory norms in Article 53 Vienna
Convention on the Law of Treaties ________________________________________ 6
SECTION.2. A norm of general international law_____________________________ 8
§1. The concept of source in international law ____________________________ 8
§2. The concept of general international law ____________________________ 10
A. Introduction ___________________________________________________ 10
B. General international law in the debates of the International Law Commission
on Article 53 Vienna Convention on the Law of Treaties ___________________ 12
C. Observations by States on the nature of general international law in relation to
jus cogens ________________________________________________________ 16
D. General international law in the case law of the International Court of Justice17
E. General international law in doctrine _______________________________ 22
F. Preliminary conclusions _________________________________________ 24
§3. The sources of jus cogens ________________________________________ 25
A. General customary international law________________________________ 25
1. Practice ____________________________________________________ 27
a. The subjects of practice ______________________________________ 27
b. What constitutes State practice? _______________________________ 28
i. Physical conduct versus verbal acts ___________________________ 28
ii. Omissions _______________________________________________ 31
iii. National law ____________________________________________ 32
iv. Treaties ________________________________________________ 34
v. Resolutions of international organisations, in particular United Nations
General Assembly Resolutions __________________________________ 39
2. The subjective element in customary international law _______________ 41
a. The need for the subjective element ____________________________ 43
b. The content of the subjective element ___________________________ 48
3. The relation between practice and opinio juris sive necessitatis ________ 60
4. Customary international law status of jus cogens ____________________ 63
B. General (multilateral) treaties _____________________________________ 66
C. General principles of law ________________________________________ 72
1. Introduction _________________________________________________ 72
2. The concept of principles ______________________________________ 75
3. General principles of law as derived from municipal legal systems ______ 77
4. General principles of law as principles underlying each legal system ____ 82
5. General principles of law as general principles of international law _____ 89
6. Conclusion as to the scope of the source of general principles of law ____ 91
7. General principles of law and jus cogens __________________________ 92

i
 §4. The need for an autonomous source of jus cogens _____________________ 94
SECTION.3. A norm accepted and recognized by the international community of
States as a whole of which no derogation is permitted __________________________ 98
§1. The requirement of accepted and recognized by the international community
of States as a whole ___________________________________________________ 98
A. Accepted and recognized ________________________________________ 99
B. International community of States as a whole _______________________ 104
1. Existence of an international community _________________________ 105
2. Members of the international community _________________________ 111
§2. The impermissibility of derogation ________________________________ 119
A. The concept of derogation _______________________________________ 120
B. The problem of logical impossibility of derogation ___________________ 122
SECTION.4. The sanction of nullity _____________________________________ 124
SECTION.5. Regional jus cogens _______________________________________ 130
SECTION.6. Conclusion ______________________________________________ 133
Chapter.2. Other criteria for identification _______________________________ 137
SECTION.1. Introduction _____________________________________________ 137
SECTION.2. Jus cogens as norms protecting the common interests of the international
community 137
SECTION.3. Jus cogens as the most important moral principles of the international
community 140
SECTION.4. The absolute character of a norm _____________________________ 146
SECTION.5. Conclusion ______________________________________________ 150
Chapter.3. The emergence and modification of norms of jus cogens __________ 151
SECTION.1. Introduction _____________________________________________ 151
SECTION.2. The emergence of norms of jus cogens ________________________ 151
SECTION.3. Changes in existing peremptory norms ________________________ 158
§1. The abrogation of an existing norm of jus cogens ____________________ 158
§2. The modification of peremptory norms ____________________________ 160
SECTION.4. Conclusion ______________________________________________ 161
Chapter.4. The Legal consequences of norms of jus cogens __________________ 163
SECTION.1. Introduction _____________________________________________ 163
SECTION.2. Legal consequences flowing from the Vienna Convention on the Law of
Treaties 164
§1. Nullity of treaties derogating from existing norms of jus cogens _________ 164
§2. Termination of treaties conflicting with new norms of jus cogens ________ 172
§3. Procedure to invoke the voidness or termination of a treaty for inconsistency
with jus cogens _____________________________________________________ 174
A. Procedure ____________________________________________________ 176
B. Critical analysis of the procedure _________________________________ 181
SECTION.3. Legal consequences of norms of jus cogens outside the law of treaties 185
§1. Invalidity of other norms of international law _______________________ 185
A. Conflicts between peremptory norms and customary international law and
general principles _________________________________________________ 186
B. Invalidity of unilateral acts ______________________________________ 188
§2. Hierarchy in international law ____________________________________ 195
A. The existence of hierarchy in international law ______________________ 195
B. Consequences of hierarchy of jus cogens norms _____________________ 207
1. Persistent objectors are still bound ______________________________ 207

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 2. Limiting fragmentation in international law _______________________ 208
§3. Legal consequences of jus cogens in the field of State responsibility _____ 219
A. Introduction __________________________________________________ 219
B. The legal interest in invoking breaches of peremptory norms ___________ 220
1. The concept of obligations erga omnes___________________________ 220
2. The connection between jus cogens and obligations erga omnes _______ 227
3. Consequences of obligations erga omnes _________________________ 233
a. Legal standing before the International Court of Justice ___________ 235
b. Problems of jurisdiction ____________________________________ 240
4. Reparation _________________________________________________ 246
5. The right of not directly affected States to take countermeasures ______ 249
C. Obligations in the field of State responsibility for serious breaches of norms of
jus cogens _______________________________________________________ 255
1. Serious breaches of obligations under peremptory norms ____________ 259
2. Duty of international actors to co-operate to remove the violation of norms
of jus cogens ___________________________________________________ 260
3. The prohibition of recognition of a severe breach of a norm of jus cogens as
lawful and the prohibition of aid and assistance in order to secure the situation262
D. The non-invocation of circumstances precluding wrongfulness __________ 265
SECTION.4. Conclusion ______________________________________________ 266
Chapter.5. The Role of jus cogens _______________________________________ 269
SECTION.1. Introduction _____________________________________________ 269
SECTION.2. Jus cogens as ordre public of the international community_________ 272
§1. Ordre public as a general principle of law __________________________ 272
A. Ordre public at the national level _________________________________ 273
B. Ordre public at the international level _____________________________ 280
§2. Critique on jus cogens as international ordre public___________________ 283
A. Jus cogens as the international ordre public and customary law and unilateral
acts 283
B. Jus cogens as the international ordre public and law-making treaties _____ 285
§3. Conclusion ___________________________________________________ 289
SECTION.3. Jus cogens norms as the constitutional law of the international
community 290
§1. Introduction __________________________________________________ 290
§2. Constitution, constitutionalism and constitutionalization _______________ 291
§3. Criticism on constitutionalism ___________________________________ 294
A. Problems of legitimacy _________________________________________ 294
B. The problems of fragmentation and hegemony_______________________ 296
C. Absence of political will ________________________________________ 297
D. The denial of politics ___________________________________________ 298
E. Constitutionalism as a European, anti-pluralist project ________________ 299
§4. Jus cogens as the constitutional norms of international law _____________ 300
A. Jus cogens as constitutional norms ________________________________ 300
B. Peremptory norms as principles __________________________________ 306
§5. Constitutionalism based on jus cogens _____________________________ 310
A. Constitutionalism based on jus cogens as a liberal perspective on international
law 310
B. Constitutionalism based on jus cogens as a Kantian project _____________ 314
1. KANT’s theory for eternal peace ________________________________ 317
2. Jus cogens and the Kantian project of international law ______________ 331

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 SECTION.4. Conclusion ______________________________________________ 340
Chapter.6. The identification of peremptory norms ________________________ 342
SECTION.1. Introduction _____________________________________________ 342
SECTION.2. Peremptory norms laid down in the Charter of the United Nations ___ 343
§1. Sovereign equality of States _____________________________________ 345
§2. The prohibition on the use of force and the duty to settle disputes peacefully352
§3. The prohibition of intervention ___________________________________ 354
§4. The right to self-determination of peoples __________________________ 356
SECTION.3. Peremptory norms in human rights law and humanitarian law ______ 359
§1. The prohibition of genocide _____________________________________ 363
§2. The right to life _______________________________________________ 367
§3. The prohibition of slavery, servitudes and forced labour _______________ 376
§4. Prohibition of torture and inhumane and degrading treatment or punishment382
§5. Right to liberty and security of person _____________________________ 387
§6. Right to a fair trial _____________________________________________ 393
§7. Prohibition of discrimination ____________________________________ 402
SECTION.4. Conflict between different peremptory norms and the formation of
conflict-rules 407
§1. The conflict between the principles of non-intervention, non-use of force and
the protection of fundamental rights in light of the “Responsibility to Protect”____ 409
§2. The conflict between sovereign immunity and the enforcement of human
rights 418
SECTION.5. Conclusion ______________________________________________ 425
Summary, conclusions and final reflections ____________________________________ 427
Summary ____________________________________________________________ 427
Conclusion and final reflections __________________________________________ 432
International Instruments and State practice ___________________________________ 437
Case Law ________________________________________________________________ 452
National legislation _______________________________________________________ 473
Bibliography _____________________________________________________________ 474

iv
 ACKNOWLEDGMENTS

Although researching and drafting a doctoral thesis may on occasion be a solitary

activity, it cannot be completed without the supervision by its promoters. I therefore wish to
thank Prof. Dr. Jan Wouters, who gave me the opportunities to explore the diversified field of
international law and guided me through my research. I equally wish to express my gratitude
to Prof. Dr. René Foqué who through his lectures instilled in me the interest for legal theory
and philosophy. Without his advice and suggestions the thesis would not have explored these
aspects of peremptory norms. Evidently, any error or omission is wholly attributable to the
author.

A thesis does not only ripen through research and the supervision by its promoters, but
also through discussion in a stimulating academic environment. I am grateful to have been
part of the Institute of International Law of the KULeuven, whose members, together with the
members of the Institute of European Law, always respectfully engaged in a discussion on the
topics of their research and the new developments in their field. In this respect, I especially
wish to thank Tim Corthaut, Bart De Meester, Tom Ruys and Maarten Vidal. Finally, I wish
to express my gratitude to Jed Odermatt for the thorough language review.
I also wish to thank the Law Faculty of the Universidade de Macau for allowing me
time to finish the thesis and explore new avenues and ideas. I am particular grateful to Prof.
Dr. Canelas de Castro and Prof. Dr. Rostam Neuwirth.

Finally, I wish to thank my family for their love and support, especially my partner Roel
De Meu, who additionally, willingly and unwillingly, was a soundboard for my ideas.

v
 INTRODUCTION

CONTEXT AND PURPOSE OF THE THESIS

Jus cogens has been and remains a controversial and fascinating topic, that captivates
both the academic and student of international law with its Siren’s song, including this author
when he first encountered the concept as a law student and participant in the Philip C. Jessup
International Law Moot Court Competition. However, this fascination of the academic
community and students seems to be unwarranted. Surely, the existence of jus cogens has
been controversial in the past: when it was introduced in the Vienna Convention it was only
accepted after significant opposition from Western States and after a compromise was reached
on a dispute settlement mechanism. Nonetheless, the controversy as to the existence of jus
cogens has subsided and now the conclusion is shared that the concept exists, but that it is not
clear which norms belong to jus cogens.1 Furthermore, the fact remains that since its inception
some forty years ago it did not have any practical application (yet). No treaty or any other
norm has been declared void because it derogated from a peremptory norm. In addition, the
International Court of Justice has been reluctant to refer to peremptory norms. In Military and
Paramilitary Activities in and against Nicaragua it did not explicitly accept that the
prohibition on the use of force was peremptory, it merely noted that the International Law
Commission regarded the norm as such.2 Only recently, in the Armed Activities on the
Territory of the Congo the International Court of Justice explicitly recognized for the first
time the existence of a peremptory norm, the uncontroversial prohibition of genocide,3
without this having any impact on the decision. The concept has fared better before other
international courts, but has rarely, if ever had any decisive impact.4 Moreover, jus cogens has
been invoked before national courts, typically in cases of State immunity, but most of the

1
J. COMBACAU and S. SUR, Droit international public, Montchrestien, LGDJ, 2004, 156-160; J. VERHOEVEN,
Droit international public, Brussels, Larcier, 2000, 338-340; I. BROWNLIE, Principles of Public International
Law, Oxford, Oxford University Press, 2003, 490; T. MERON, Human Rights in Internal Strife, Their
International Protection, Cambridge, Grotius Publications, 1987, 137; S. KIRCHNER, “Relative Normativity and
the Constitutional Dimension of International Law: A Place for Values in the International Legal System?”,
German Law Journal 2004, 51.
2
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 190.
3
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 64.
4
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, § 153;
European Court of Human Rights, Al-Adsani v. the United Kingdom, Application No. 35763/97, Merits,
Judgment, 21 November 2001, Reports of Judgments and Decisions 2001-XI, § 59; Inter-American Court on
Human Rights, Aloeboetoe et al. v. Suriname, Reparation and Costs, Judgment, 10 September 1993, Series C,
No. 15, § 57; European Court of First Instance, Yusuf and Al Barakaat International Foundation v. Council and
Commission, Case T-306/01, Judgment, 21 September 2005, European Court Reports 2005, II-3626-3627, §§
279-281; European Court of First Instance, Kadi v. Council and Commission, Case T-315/01, Judgment, 21
September 2005, European Court Reports 2005, II-3724-3725, §§ 228-230. Inter-American Commission on
Human Rights, Pinkerton and Roach v. United States of America, Resolution 3/87, Case No. 9641,
OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), §§ 54-55; Id., Survivors of the Tugboat ‘13 de Marzo’ v. Cuba, Case
11.436, Report No. 47/96, OEA/Ser.L/V/II.95 Doc. 7 rev. (1996), § 79; Id., Michael Domingues v. United
States of America, Case 12.285, Report No. 62/02, Doc.5 rev.1 (2002), §§ 84-85.

vi
times without any success.5 After forty years the Rolls Royce of international law has not left
the garage (and maybe it cannot drive anymore).6
Despite its practical irrelevance there is something “magic” about jus cogens,7 that like
the Siren’s song ensnares scholars that pass by (provided their ears are not obstructed). Maybe
it has a religious aspect.8 Maybe, the beauty of jus cogens is precisely that it exists as the safe-
keeper of the supreme moral values of the international community against the cynicism and
egotism of day-to-day international politics. Maybe, it is because it promises that mankind
can accept universally binding norms and transcend particularism. Or, maybe because they
are some form of supernorms, that can compel States.9 In this respect, it is not uncommon that
students answer the question whether a non-party State is bound by a conventional norm with:
“Yes, since the norm is also part of customary international law and even jus cogens” (add
any number of exclamation marks). Yet, peremptory norms are not more binding than any
other international law norms. Not without humour SHELTON compares jus cogens to no
parking signs that can be found in New York, where the first sign reads: “No parking”; the
second: “Absolutely no parking” and the third: “Don’t even think of parking here”.
Peremptory norms are the third sign.10 Nevertheless, a significant number of scholars have
been seduced by the Siren’s song that peremptory norms are a form of supernorms with
immense power. D’AMATO has mocked this rush by the academic community to jus cogens
with the phrase, “It’s a Bird, It’s a Plane! It’s Jus Cogens!”. At the same time he challenges
anyone with providing for a theory of jus cogens that is “Just Right”, answering three
questions: 1) What is the utility of a norm of jus cogens? 2) How does such a norm arise? and
3) How can it be changed?11 These questions echo the concerns of the Swiss delegate
BINDSCHEDLER at the Vienna Conference:

5
House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others - Ex Parte
Pinochet [1999], 38 International Legal Materials, 589 (Lord Browne Wilkinson), 626 (Lord Hope of
Craighead), 637 (Lord Hutton) and 649-650 (Lord Millet); Corte suprema di Cassazione, Ferrini c. Repubblica
federale di Germania, sezione unite n. 5044/04, depositata l’11.03.2004, Diritto e Giustizia del 16.03.2004, §
9.1, at http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-sentenza_corte_di_cassazione-
11_03_05_001.doc; Areios Pagos, The Federal Republic of Germany v. Prefecture of Voiotia, Case No.
11/2000, 4 May 2000, Nomiko Vima 2000, 212; Court of First Instance of Leivadia, Prefecture of Voiotia v. the
Federal Republic of Germany, Case No. 137/1997, 30 October 1997, Revue Hellénique de Droit International
1997, 595; Court of Appeal for Ontario, Bouzari v. Islamic Republic of Iran, 30 June 2004, 124 International
Law Reports 2002, 442-443; Court of Appeals (Civil Division), Ron Jones v. Ministry of Interior Al-Mamlaka
Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia), 28 October 2004, 2004 EWCA Civ. 1394; Siderman de
Blake et al. v. Republic of Argentina, 965 F.2d 717 (9th Cir. 1992); Princz v. Federal Republic of Germany, 26
F.3d. 1173-1174 (D.C. Cir. 1994); Rechtbank 's-Gravenhage, Mothers of Srebrenica, LJN: BD6795,
295247/HA ZA 07-2973, Vonnis in de incidenten, 10 July 2008, § 5.20, at zoeken.rechtspraak.nl.
6
P. WEIL, “Le droit international en quête de son identité: cours général de droit international public”, Recueil
des Cours 1992-VI, 274, referring to a comparison made by BROWNLIE, quoted in A. CASSESE and J.H.H.
WEILER (eds.), Change and Stability in International Law-Making, Berlin, de Gruyter, 1988, 175.
7
A. BIANCHI, “Human Rights and the Magic of Jus Cogens”, European Journal of International Law 2008, 491
et seq.
8
F. DE LONDRAS, “The Religiosity of Jus Cogens: A Moral Case for Compliance?”, in J. REHMAN and S.C.
BREAU (eds.), Religion, Human Rights and International Law: A Critical Examination of Islamic State
Practices, Leiden, Nijhoff, 2007, 247 et seq.
9
K. PARKER and L.B. NEYLON, “Jus Cogens: Compelling the Law of Human Rigths”, Hastings International
and Comparative Law Review 1988-1989, 411 et seq.
10
D. SHELTON, “Normative Hierarchy in International Law”, American Journal of International Law 2006, 304.
11
A. D’AMATO, “It’s a Bird, It’s a Plane, It’s Jus Cogens!”, Connecticut Journal of International Law 1990-
1991, 6.

vii
 “La délégation suisse a voulu poser à l’expert consultant cinq questions
auxquelles elle ne trouvait pas elle-même de réponse. Premièrement, comment
une nouvelle norme impérative de droit international survient-elle?
Deuxièmement, une norme impérative est-elle engendrée par la coutume, par un
traité ou par les deux ? Troisièmement, pour devenir une norme impérative, une
règle doit-elle être acceptée par tous les Etats de la Communauté internationale ou
seulement par une majorité de ces Etats, et dans ce dernier cas, par quelle
majorité? Quatrièmement, une nouvelle norme impérative implique-t-elle qu’une
déclaration expresse soit faite concernant son caractère impératif, ou tient-elle son
caractère impératif du consentement qui lui est donné ? Cinquièmement, une
norme impérative n’est-elle valable que pour les parties à un traité?”12

Unfortunately for the Swiss delegate no one could give a comprehensive answer.

The purpose of the thesis is to provide answers to those questions and try to formulate a
modest beginning of a theory that is “just right”. By unravelling the Siren’s song the thesis
hopes to break its enchantment so that one can sail on, while still enjoying the beauty of the
song.13 Therefore, the thesis will develop a general and analytical theory of jus cogens. It is a
general theory because it is not focused on the impact of jus cogens in a specific domain of
international law or a particular aspect of jus cogens; the theory will be analytical in that it
thoroughly examines the different elements and aspects of peremptory norms. The general
analysis of jus cogens will attempt to answer how peremptory norms are formed, how they
can be changed, what their effects are in the law of treaties and beyond, and what their
function is in the international legal system. Nonetheless, the thesis is not a purely theoretical
exercise. The ultimate goal is to identify those norms by an explanation of all the aspects of
jus cogens.

Excellent monographs and other contributions on jus cogens have already been written
that provide an answer to these questions.14 Hence, the question may be asked whether there

12
Switzerland, 22nd Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol.
II, 1970, § 66.
13
The Siren was fated to perish if one would not be captivated by its song: HYGINUS, Fabulae, 141. The author
does not hope that the Siren throws itself from the cliffs, although other scholars would not mind: A.M.
WEISBURD, “The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina”,
Michigan Journal of International Law 1995-1996, 24 et seq; M.J. GLENNON, “De l’absurdité du droit impératif
(jus cogens)”, Revue Générale de Droit International Public 2006, 529 et seq.
14
For example: L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical
Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, xxxii+781p.; L.A. ALEXIDZE,
“Legal Nature of Jus Cogens in Contemporary International Law”, Receuil des Cours 1981-III, 219 et seq; G.
CHRISTENSON, “Jus Cogens: Guarding Interests Fundamental to the International Society”, Virginia Journal of
International Law 1987-1988, 585 et seq; E. DE WET, “The Prohibition of Torture as an International Norm of
Jus Cogens and Its Implications for National and Customary Law”, European Journal of International Law
2004, 97 et seq; G. GAJA, “Jus Cogens beyond the Vienna Convention”, Recueil des Cours 1981-III, 271 et seq;
A. GÓMEZ ROBLEDO, “Le jus cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours
1981-III, 9 et seq; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker und Humblot, 1992, 383p.; R.
KOLB, “The Formal Source of Ius Cogens in Public International Law”, Zeitschrift für öffentliches Recht 1998,
69 et seq; R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses

viii
is a need for yet another contribution on jus cogens, especially in light of the irrelevance of
the concept in practice. I submit that there is still need for such a study. There is still some
“fuzziness” about the concept and its regime.15 In addition, recently, jus cogens has flourished
outside the law of treaties. It appears in that other huge codification project of the
International Law Commission, the law of State responsibility;16 it has been confirmed in the
guidelines of the International Law Commission on unilateral acts;17 and it has been
recognized as a means to combat fragmentation at the international level.18 Thus, the need
exists to integrate those developments in a general and analytical theory of jus cogens.
Second, the thesis differs from other studies in that it aims to provide a positivist
approach to the concept of jus cogens. However, what is positivism? In international law
positivism is typically associated with a voluntarist conception of international law:
international law is the result of the will of States.19 The thesis will not adhere to this
conception of positivism, since it will demonstrate that not all international law flows from
the consent of States. Instead, positivism ascribes to the central tenet that there is no necessary
connection between law and morality: there is a difference between law as it is and how it
ought to be.20 The voluntarist positivist reading of international law does not accord with
international law as it is and should therefore be rejected as a correct approach to international
law. In any event, a positivist account will have to start from the definition of Article 53, since
it is the generally accepted definition of jus cogens in international law. Hence, a positivist
account of jus cogens implies that the identification of peremptory norms is in accordance
with the acceptance and recognition of the peremptory character of a norm. Therefore, the
thesis has to provide for a method to ascertain this acceptance or recognition.

This will offer a solution to one of the main problems of jus cogens, namely, that it is
not clear which norms belong to jus cogens. A certain norm is typically proclaimed to be
peremptory because of its moral value. Not surprisingly, different authors have proposed
different peremptory norms that they consider to be reflecting the supreme moral values of the

universitaires de France, 2001, 401p.; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford,
Oxford University Press, 2006, xxxv+622p.
15
See: U. LINDERFALK, “Normative Conflict and the Fuzziness of the International Ius Cogens Regime”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2009, 961-977.
16
Articles 40-41 Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).
17
Guiding Principle 8, “Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating
Legal Obligations, with Commentaries”, UN Doc. A/61/10, 369.
18
“Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of
International Law, Report of the Study Group of the International Law Commission”, UN Doc.
A/CN.4/L.682/Add.1, 181-205.
19
See: D. DUBOIS, “The Authority of Peremptory Norms in International Law: State Consent or Natural Law”,
Nordic Journal of International Law 2009, 134; M. PAYANDEH, “The Concept of International Law in the
Jurisprudence of Hart”, European Journal of International Law 2011, 970-971; R. AGO, “Positive Law and
International Law”, American Journal of International Law 1957, 693 and 699. Most famously the voluntarist
approach to international law can be found in the S.S. Lotus case: S.S. Lotus (France v. Turkey), PCIJ Publ.,
Series A, No. 10, 18.
20
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 185; H.L.A. HART, “Positivism
and the Separation of Law and Morals”, Harvard Law Review 1957-1958, 594-595; F. SCHAUER,
“Constitutional Positivism”, Connecticut Law Review 1992-1993, 800-801; O.M. FISS, “The Variety of
Positivism”, Yale Law Journal 1980-1981, 1007; J.L. COLEMAN, “Negative and Positive Positivism”, Journal of
Legal Studies 1982, 140-141; J. GARDNER, “Legal Positivism: 5 ½ Myths”, American Journal of Jurisprudence
2001, 199.

ix
international community. In addition, the methodology to come to this conclusion is not given
and frequently there is no examination of the position of States with regard to a certain
peremptory norm. All of this implies a moral realist stance: what is morally good can be
objectively determined and does not depend on the subjective opinions of actors.21 With
regard to jus cogens, this implies that it is possible to determine that a certain norm is part of
jus cogens only because of its moral quality, independent of what States believe. If the value
the norm protects is “good” to such extent that it will be upheld in nearly all conflicts with
other values, it is part of jus cogens. The major problem with moral realism is that there is no
generally recognized method to determine what is morally good,22 so that even if moral
realism is correct divergences of opinion may still occur and remain unsolvable for a long
time.
In the thesis it will not be denied that there is a connection between jus cogens and
moral values, but moral realism will be rejected. This is not contrary to a positivist stance.
Positivism does accept that law and morality may be related and that law is influenced by
morality, it only rejects that the validity of a law is necessarily determined by morality.
Instead of moral realism, the thesis will defend an emotivist approach to morality. According
to emotivism, moral propositions are the result of subjective beliefs that actors hold dear.23
Society has to choose which opinion it will adopt or strike a balance between different moral
opinions as the law to govern the relations between the different subjects so that the conflict is
settled temporarily. In international society there will be debate on which rules should belong
to jus cogens, which values are cardinal to international society. Considering the diversity in
mankind it might be expected that at the international level there will be different opinions on
what are the supreme values. Hence, there will be a need to agree upon the norms of jus
cogens so that one society cannot impose its conceptions of the good on another. In
international law States have a central role in international law-making, which is explicitly
recognized in the field of jus cogens. In particular, Article 53 Vienna Convention on the Law
of Treaties establishes that norms of jus cogens have to be accepted and recognized by the
international community of States as a whole. And acceptance and recognition of peremptory
norms by States puts us firmly in a positivist framework.

A final purpose of the thesis is to establish the role of jus cogens in the international
legal order. International law only sets out the definition of jus cogens and its effects. The
purpose of jus cogens in the international legal system is however not established. Neither the
Vienna Convention on the Law of Treaties, nor the Draft Articles on Responsibility of States
for Internationally Wrongful Acts determine the role jus cogens has in international law.
Nonetheless, jus cogens has been considered to function as the ordre public of the
international community. Alternatively, norms of jus cogens have been regarded as (being
part of) the constitutional norms of the international community. The thesis will examine
which of these options best fit the concept of jus cogens and its effects in international law.

21
J.L. MACKIE, Inventing Right and Wrong, Harmondsworth, Penguin Books, 1977, 30-31; M.W. MCCONNEL,
“A Moral Realist Defense of Constitutional Democracy”, Chicago-Kent Law Review 1988, 89.
22
J. WALDRON, “Moral Truth and Judicial Review”, American Journal of Jurisprudence 1998, 84-86.
23
Ibid., 78.

x
RESEARCH QUESTIONS AND METHODOLOGY

Taking into consideration the purposes of the thesis, the following main research
questions will be addressed:
1. If Article 53 is regarded as a rule of recognition, what will an inquiry into its different
elements of jus cogens reveal and will it assist in the identification of peremptory norms?
2. Can any other criterion help in identifying peremptory norms?
3. Can an examination of the formation of customary international law and its
constituent elements State practice and opinio juris provide a method by which peremptory
norms can be identified?
4. What are the legal consequences of jus cogens?
5. Taking into consideration the different elements of jus cogens and its effects, what is
its function in the international community and how does its function impacts on the
identification of peremptory norms?

The main research questions will evidently raise other less important issues that have to
be addressed at the moment they arise.

Chapter 1 will start with an inquiry into whether Article 53 Vienna Convention on the
Law of Treaties can be considered a rule of recognition. The purpose of rules of recognition is
to identify norms. Accordingly, if Article 53 is a rule of recognition the elements it contains
should help in identifying peremptory norms. However, before looking into the different
elements of Article 53, the issue needs to be addressed whether international law has a rule of
recognition and that Article 53 is part thereof. HART himself did not consider international
law as having secondary norms. Nonetheless, it will be argued that HART’s inquiry into the
existence of secondary rules in international law is unsatisfactory. Subsequently, it will be
demonstrated that international law has a rule of recognition and that jus cogens is an element
thereof. In a next part the different elements of Article 53 will be discussed thoroughly. First,
peremptory norms are norms of general international law. In this respect, the thesis will look
into the definition of general international law; it will also examine which sources of
international law can give rise to general international law by investigating statements of State
representatives at the Vienna Conference, the debates of the International Law Commission,
case law of the International Court of Justice and doctrine. Subsequently, the three sources
that might give rise to general international law – custom, treaties and general principles of
law – will be individually scrutinized. At this point in the thesis the elements of customary
international law – State practice and opinio juris – will be dissected because of a similarity
between custom and jus cogens. Custom involves a process whereby certain facts, the
practice, becomes binding because of a belief that the practice is binding under law. Similarly,
jus cogens involves a process whereby an existing norm of general international law becomes
regarded as peremptory due to a recognition or acceptance that the norm has such an
importance that no derogation should be permitted. By looking into custom a method can be
found to assess the recognition and acceptance of the international community of States.
Furthermore, the thesis will look into the most enigmatic source of international law, general
principles of law, as a source generating general international law. Here, the thesis will look
into the theoretical distinction between principles and rules and discuss the different
conceptions of general principles of law and whether they can be the basis for a peremptory
norm. Finally, the question will be answered whether jus cogens needs an autonomous source
of law.
Second, the element of acceptance and recognition by the international community of
States as a whole and the prohibition of derogation is looked into. The requirement of

xi
acceptance and recognition was a late addition to the definition of jus cogens and only
occurred at the Vienna Conference. Nonetheless, its impact has to be examined. With regard
to the international community of States as a whole the thesis will explore whether such an
international community exists and whether it is only composed of States, as Article 53 seems
to imply. Subsequently, Chapter 1 will address the legal technique of derogation and the issue
whether norms that logically cannot be derogated from are also part of jus cogens. After
having examined the different elements of the definition of jus cogens, Chapter 1 turns to the
question whether the sanction of nullity is inherent to jus cogens or whether jus cogens should
be expanded to include all legal mechanisms that protect the integrity of a regime against
derogation. Finally, the question will be answered whether regional jus cogens can exist.

Chapter 2 will inquire into other criteria to identify jus cogens. Despite the light Article
53 Vienna Convention on the Law of Treaties sheds on the identification of peremptory
norms the criteria it offers are formal, whereas jus cogens is precisely protecting substantial
values. Therefore, other criteria have been proposed in doctrine. This does not affect the
qualification of Article 53 as a rule of recognition since rules of recognition may not be clear.
Hence, other criteria may be advanced to help identify valid norms of a legal system. Doctrine
has advanced three criteria to identify peremptory norms: 1) peremptory norms protect
community interest; 2) peremptory norms are based in morality; and 3) peremptory norms are
absolute. However, the thesis will argue that none of these criteria is on its own sufficient to
identify peremptory norms. Moreover, the most substantive criterion of the three, the basis in
morality, itself requires the acceptance or recognition of the moral value within society.
Consequently, it seems that jus cogens norms can only be identified definitely by the criteria
of Article 53 Vienna Convention on the Law of Treaties.

Chapter 3 will apply the findings of Chapter 1 on customary international law and look
into how peremptory norms can emerge and how they can be abrogated and modified. The
chapter will demonstrate that looking into State practice can reveal an acceptance (an opinio
juris cogentis) that a certain norm belongs to jus cogens. Furthermore, the chapter will discuss
how peremptory norms can be changed, either by abrogation, or by modification.

Chapter 4 will map the legal consequences of peremptory norms in the law of treaties
and beyond in order to have a complete picture of the concept, which can help identification,
and as a preparation to the examination of the role of jus cogens in the international legal
system. The chapter will start with mapping the consequences of jus cogens in the law of
treaties, discussing the effects of invalidity and the dispute settlement mechanism prescribed
in the Vienna Convention on the Law of Treaties. Afterwards, Chapter 4 will devote attention
to the consequences of peremptory norms outside the law of treaties. Jus cogens has escaped
the confines of the law of treaties and has become a mechanism to invalidate all norms
derogating from a peremptory norm, regardless of the source of the derogatory norm. By
expanding the scope of jus cogens international law has developed a hierarchy, which protects
international law as a legal system against over-fragmentation. Furthermore, jus cogens has
been introduced in the law of State responsibility. Even before the adoption of the Draft
Articles on Responsibility of States for Internationally Wrongful Acts peremptory norms were
considered obligations erga omnes. Despite the majority’s point of view the thesis will defend
that norms of jus cogens and obligations erga omnes are identical so that the invocation of
State responsibility on the basis of an erga omnes obligation implies the acceptance of a
peremptory norm. The thesis also explores the hurdles obligations erga omnes have
encountered in the case law of the International Court of Justice in order to assess the chances
of upholding peremptory norms before the World Court. Finally, the thesis examines the

xii
possibility of countermeasures by States not directly affected by the violation of a peremptory
norm and the introduction of serious breaches of peremptory norms in the law on State
responsibility.

Chapter 5 will look into the role of jus cogens in international law. Since the role of jus
cogens is not laid down in international law, the thesis has to leave legal positivism behind.
Nevertheless, there is much support to consider jus cogens as the ordre public of the
international community. The concept of ordre public is not contained in treaty law or
customary international law, but is a general principle of law and its contours can be found in
national law. However, general principles are not just copied from national law and
introduced in international law. A general principle of law may be found in every legal
system, but that does not mean that the principle appears identical in all legal systems.
Therefore, it will be examined whether the ordre public of some national jurisdictions is
identical to that of international law. Although the conclusion will be that jus cogens may be
constructed as the ordre public of international law, it will be demonstrated that there are
significant problems with this view on the role of jus cogens. However, a second point of
view on the role of jus cogens has been advocated, namely that peremptory norms function as
constitutional norms of the international legal system. The thesis will subscribe to this view
since it best fits the concept of jus cogens and its consequences. Moreover, the thesis will
argue that adopting a constitutionalist approach to international law based on jus cogens
entails a liberal view of and a Kantian approach to international law.

Chapter 6 finally will merge the method of Chapter 1 as applied in Chapter 3 with the
findings in Chapter 5 that peremptory norms serve as the constitutional norms of the
international legal order. Looking into State practice of some two hundred States may be
cumbersome. The role of jus cogens as constitutional norms will set out the framework
wherein certain candidate peremptory norms can be selected. Constitutional norms typically
set out which authorities can make the law, the fundamental rules on the relationship and
interaction between the different authorities and the limits to law-making. At the international
level those norms can be found in the Charter on the United Nations, human rights law and
international humanitarian law. Nevertheless, the ultimate proof that a norm belongs to jus
cogens will be delivered by an examination of the acceptance of the norm by the international
community of States as a whole. Finally, the chapter will look into the existence of
constitutional conflict-rules that balance the peremptory norms that set out the power of
authorities and how they have to interact with each other with peremptory norms that restrict
the exercise of power by those authorities. In this respect, I will look into the existence of a
possible conflict-rule between the principles of respect for sovereignty, the prohibition of
intervention and the use of force on the one hand and the protection of fundamental human
rights on the other hand through the lens of the recent notion of “responsibility to protect”.
Furthermore, I will examine whether there is a conflict-rule that balances the principle of
sovereign equality of States with the principle of the effective redress for violations of
peremptory norms through access to national, civil courts by looking into the case law on
State immunity for such breaches.

xiii
CHAPTER.1. THE DEFINITION OF JUS COGENS IN THE
VIENNA CONVENTION ON THE LAW OF TREATIES
SECTION.1. INTRODUCTION

§1. The need for a definition of jus cogens

1. The notion of jus cogens has for the first time been defined in Article 53 Vienna
Convention on the Law of Treaties of 1969. According to this provision a peremptory norm is
a norm of “general international law” that has been “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”. At that point in time the need to clearly circumscribe jus cogens
was twofold. Firstly, although a great number of States at the Vienna Conference and most
members of the International Law Commission were of the opinion that the concept of jus
cogens conceived as the ordre public of the international community did exist in international
law,1 there was no State practice on the invalidation of treaties infringing the ordre public.2
The concept did appear in doctrine, but theoretical underpinnings of the concept were not

1
Although the notion of ordre public was deleted from the commentary, a number of members of the
Commission made statements considering jus cogens as an equivalent of international ordre public; see
YASSEEN, 683rd Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I, § 37 and § 41; TABIBI, 683rd Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, §§ 44-45; PAL, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 64; BARTOŠ, 683rd Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 81; AMADO,
684th Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol.
I, § 14; TUNKIN, 684th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 24; DE LUNA, 684th Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 61; PESSOU, 705th Meeting of the International Law Commission,
Yearbook of the International Law Commission 1966, Vol. I, § 60; ROSENNE, 828th Meeting of the International
Law Commission, Yearbook of the International Law Commission 1966, Vol. I, § 21.
2
For an overview of State practice prior to the Vienna Convention on the Law of Treaties (1969): J. SZTUCKI,
Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical Appraisal, Vienna, Springer, 1974, 26-
54; E. SCHWELB, “Some Aspects of International Jus Cogens as Formulated by the International Law
Commission”, American Journal of International Law 1967, 949-960; E. SUY, “The Concept of Jus Cogens in
Public International Law”, in CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE (EUROPEAN CENTRE), The
Concept of Jus Cogens in International Law, Papers and Proceedings Conference on International Law,
Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for International Peace, 1967, 60-69.
Similarly, Special Rapporteur LAUTERPACHT declared in his commentary to article 15 of his report that “The
voidance of a contractual agreement whose object is illegal is a principle of general international law. As such it
must find a place in the codification of the law of treaties”, though adding, “This is so although there are no
instances in international judicial and arbitral practice, of a treaty being declared void on an account of the
illegality of its object.”: Special Rapporteur LAUTERPACHT, “Report on the Law of Treaties”, Yearbook of the
International Law Commission 1953, Vol. II, 155. Equally, Special Rapporteur Sir WALDOCK was of the opinion
that: “In international law, however, the time seems not to be ripe for trying to codify the category of ‘unlawful’
treaties. The appearance of the concept of jus cogens, […] is comparatively recent, while international law is at a
stage of rapid development. Accordingly, the prudent course seems to be to state in general terms the rule that a
treaty is void if it conflicts with a rule of jus cogens and to leave the full content of this rule to be worked out in
State practice and in the jurisprudence of international tribunals”: Special Rapporteur WALDOCK, “Second
Report on the Law of Treaties”, Yearbook of the International Law Commission 1963, Vol. II, 53.

1
consistent.3 Therefore, it was felt that the notion needed to be circumscribed. Consequently,
from a utilitarian point of view, the rather vague concept of international ordre public needed
to be defined. As a result, one can conclude that the notion of ordre public in international law
might have been accepted, but its exact definition not. Thus, the definition in Article 53 is
rather a progressive development of international law,4 a conclusion which is reinforced by
the introduction of the words “For the purposes of the present Convention”. Secondly, and
more importantly, a definition of jus cogens would allow for the identification of international
norms having this character. Indeed, the International Law Commission did not find it wise to
include a list of examples of such norms since this would go beyond the scope of the Vienna
Convention on the Law of Treaties and could give a false impression that only those norms
were to be considered peremptory. This would hinder or exclude other norms which might be
jus cogens.5 This approach, while maybe not the most courageous, was at the time the only
right one in light of the uncertainties of the new concept, as was evidenced by the inability of

3
For a brief overview of doctrine before the Vienna Convention on the Law of Treaties: J. SZTUCKI, Jus Cogens
and the Vienna Convention on the Law of Treaties, A Critical Appraisal, Vienna, Springer, 1974, 54-96; E. SUY,
“The Concept of Jus Cogens in Public International Law”, in CARNEGIE ENDOWMENT FOR INTERNATIONAL
PEACE (EUROPEAN CENTRE), The Concept of Jus Cogens in International Law, Papers and Proceedings
Conference on International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for
International Peace, 1967, 26-49.
4
Report of the Sixth Committee to the General Assembly (1963), UN Doc. A/5601, § 18; Cuba, 52nd Meeting of
the Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969,
§ 34; Turkey, 53th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 1 and § 6; Australia, 55th Meeting of the Committee of the Whole, United
Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 16; Federal Republic of Germany,
55th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties, Official
Records, Vol. I, 1969, § 31; Thailand, 56th Meeting of the Committee of the Whole, United Nations Conference
on the Law of Treaties, Official Records, Vol. I, 1969, § 42; Trinidad and Tobago, 56th Meeting of the
Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, §
57; Turkey, 19th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II,
1970, § 64; Cyprus, 20th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records,
Vol. II, 1970, § 35; Belgium, 20th Plenary Meeting, United Nations Conference on the Law of Treaties, Official
Records, Vol. II, 1970, § 56; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam,
North-Holland, 1976, 5; U. SCHEUNER, “Conflict of Treaty Provisions with A Peremptory Norm of General
International Law and Its Consequences, Comments on Arts. 50, 61 and 67 of the ILC’s Draft Articles on the
Law of Treaties”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1967, 520. I.M. SINCLAIR,
“Vienna Conference on the Law of Treaties”, International and Comparative Law Quarterly 1970, 49-50; F.
CAPOTORTI, “L’extinction et la suspension des traits”, Recueil des Cours 1971-III, 521; M. LACHS, “The
Development and General Trends of International Law in Our Time”, Recueil des Cours 1980-IV, 203; L.
GROSSE, “Racines historiques et fondements contemporains des normes impératives (Jus cogens) dans la
théorie et la pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et
Politiques 1995, 242; D. SHELTON, “International Law and ‘Relative Normativity’”, in M.D. EVANS (ed.),
International Law, Oxford, Oxford University Press, 2003, 153; H.W. BRIGGS, “Procedure for Establishing the
Invalidity or Termination of Treaties under the International Law Commission’s 1966 Draft Articles on the Law
of Treaties”, American Journal of International Law 1967, 977; T.O. ELIAS, “Problems concerning the Validity
of Treaties”, Recueil des Cours 1971-III, 388; W. CZAPLIŃSKI and G.M. DANILENKO, “Conflicts of Norms in
International Law”, Netherlands Yearbook of International Law 1990, 9; W. CZAPLIŃSKI, “Ius Cogens and the
Law of Treaties”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International
Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 86.
5
Special Rapporteur Sir WALDOCK listed in his second report a number of examples of norms of jus cogens
(Yearbook of the International Law Commission 1963, Vol. II, 52), but after discussion in the drafting committee
and the plenary, the examples were left out of the final draft article: Summary Record of the 705th Meeting,
Yearbook of the International Law Commission 1963, Vol. I, § 53 et seq.

2
States at the Vienna Conference to agree on even a basic set of peremptory norms. Hence, the
inclusion of some examples would probably have led to endless debates and could jeopardise
the acceptance of the concept of jus cogens altogether. In any event, despite its vagueness and
formalism, the definition of jus cogens in Article 53 had the purpose of allowing for the
identification of valid jus cogens norms and could hence be considered in the terminology of
HART as a secondary rule, in particular a rule of recognition.6 In the following parts of the
introduction, it will be examined whether international law can have a rule of recognition and
if the answer is positive, what the elements are of the rule of recognition of jus cogens. Those
elements will then be scrutinized in different sections of the chapter.

§2. The existence of secondary rules in international law

2. The thesis that rules of recognition exist in international law is not taken for granted.
HART himself was of the opinion that international law did not contain secondary rules, i.e.
rules of recognition, rules of change and rules of adjudication. This absence did not however
lead to the conclusion that international law was not really law since in the end international
law is sufficiently analogous in content with and more closely related to municipal law than
any other social rules, including morality.7 HART considered secondary rules a luxury: in
order to have binding norms one does not necessarily need secondary rules, but the presence
of such rules has certain advantages. A rule of recognition will reduce the uncertainty in law
because it allows for identification and validation of primary rules, rules of change remove the
static character of a regime of primary rules and rules of adjudication will enhance efficiency
since instead of diffuse social pressure specialized bodies will rule whether a primary rule has
been broken.8

3. The question whether international law contains secondary rules is rather inadequately
answered by HART. He states that international law does not have rules of change and
adjudication because there is no legislature and no courts with compulsory jurisdiction at the
international level.9 Concerning the rule of recognition, HART in the end just submits that
there is no rule of recognition summing up the sources, although he stated before that the
existence of such a rule is a matter of fact.10 This point of view that international law only
consists of primary rules of obligation – and is thus marred with indeterminacy, inefficiency
and rigidity11 – fits uneasily with reality. International law has a rule listing the sources, does

6
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 94-95. The primary function of the
rule of recognition is to determine whether or not a rule is a legal rule. However, this does not mean that there
exists only one rule of recognition: HART accepts that there could be different sub-rules of recognition in a
developed legal system, although he in the end is convinced that a legal system must have an ultimate rule of
recognition. RAZ on the other hand is of the opinion that different rules of recognition can exist: not all criteria of
validity needs to be laid down in the rule of recognition and in any event, it is conceivable that a legal system has
different rules of recognition: J. RAZ, “The Identity of Legal Systems”, California Law Review 1971, 809-810; J.
RAZ, The Concept of a Legal System, Oxford, Clarendon, 1980, 200.
7
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 237.
8
Ibid., 94-97.
9
Ibid., 214.
10
Ibid., 236.
11
HART was of the opinion that not all societies governed solely by primary rules had to suffer from these
defects: small homogenous communities could live successfully under such system: H.L.A. HART, The Concept

3
contain mechanisms for change in its rules and, although there is in general no court with
compulsory jurisdiction, i.e. which can pronounce itself without the consent of a State, there
are mechanisms of judicial settlement of disputes between States and courts that criminally
prosecute individuals. However, this does not mean that international law resembles
municipal law: it clearly is a noticeably different system of law.

4. Various objections can be made against HART’s account of international law. The
treatment of international law by HART is very superficial. It has been stated that HART was
not really concerned with an in-depth discussion of international law, but included a chapter
only because AUSTIN and KELSEN had done so.12 Furthermore, HART’s main purpose was to
reject the necessary requirement of the existence of the Grundnorm as advocated by
KELSEN.13 Hence, one could dispense with the conclusions of HART on secondary rules in
international law since they are the result of a “careless” and “indifferent” treatment of the
subject.14 Nonetheless, the problems with HART’s account of international law run deeper.
There is the general problem that on the basis of HART’s account there is no intermediate
stage between the law of a primitive society and a fully fledged legal system with a central
legislator, courts with compulsory jurisdiction and a rule of recognition. Yet, this seems to
constitute a historically incorrect account. Therefore, it might be better to regard HART’s
account as demonstrating what a society which has a legal system composed of a union of
primary and secondary rules would stand to lose. In this respect, HART’s account can be
regarded as the legal equivalent of the political theories describing the transformation from a
state of nature to a civil society.15 Consequently, it would be possible that other legal systems
contain secondary rules although there are not as developed as national legal systems. What is
important is that the legal system designates authorities with legislative or adjudicative
competences. International law has such authorities and thus contains rules of change and
rules of adjudication. HART misses this dimension of international law because he explains
the concept of law against the background of municipal legal systems, whose structures he
uses to discuss non-municipal legal systems. In addition, he focuses mainly on how law
operates in private and criminal law. This of course leads to the conclusion that international
law is less developed than municipal law, which implies the absence of secondary rules.16
Yet, PAYANDEH has rightly stressed that the formal structures of municipal law should not be
transferred to the international level; rather, one needs to inquire whether international law
has the same functions as municipal law.17 International law has a legislative function: States
and international organizations have been endowed with the power to create and change
international law not only for themselves, but may create equally binding rights for
individuals. Moreover, international law is not purely based on consent: customary

of Law, Oxford, Oxford University Press, 1997, 92. However, the contemporary international society, although
it has in common certain values and interest, cannot be characterized as being a homogenous unit.
12
See: D. LEFKOWITZ, “(Dis)solving the Chronological Paradox in Customary International Law: A Hartian
Approach”, Canadian Journal of Law and Jurisprudence 2008, 144, note 43.
13
Ibid., 137-138.
14
See: J. WALDRON, “Hart and the Principles of Legality”, in M.H. KRAMER et al. (eds.), The Legacy of H.L.A.
Hart, Oxford, Oxford University Press, 2008, 68-69.
15
J. WALDRON, “All We Like Sheep”, Canadian Journal of Law and Jurisprudence 1999, 173.
16
M. PAYANDEH, “The Concept of International Law in the Jurisprudence of Hart”, European Journal of
International Law 2011, 980-981.
17
Ibid., 981.

4
international law does not require consent to be bound18 and peremptory norms are accepted
by the international community of States as a whole, which does not require unanimous
acceptance of a norm as part of jus cogens.19 Furthermore, international law has rules of
adjudication. Although there is no court with compulsory jurisdiction over States this does not
preclude the existence of rules of adjudication; for, if parties agree to subject their disputes to
a judicial body, at least there must be rules establishing the judicial body with the competence
to decide the legal obligations of the parties. Moreover, the absence of a compulsory dispute
settlement mechanism between authorities is not a decisive argument against rules of
adjudication in general since in national legal systems disputes between authorities may also
not be settled by a (constitutional) court.20 Finally, international law has created international
criminal courts where individuals may be prosecuted in a similar way as before national
criminal courts.

5. International law does contain rules of change and rules of adjudication. Concerning the
existence of a rule of recognition in international law there is however a problem. The rule of
recognition serves two functions, namely to allow for identification and for the validation of
rules of law.21 However, it is the latter function, which in the end is the most important.
Indeed, the rule of recognition is in essence a rule for officials to establish whether a certain
rule is valid or not.22 Of course, the subjects of a legal system might share the conviction of
the officials on the rule of recognition, but they do not need to: it is the practice and
acceptance of the officials in establishing which rules belong to the legal system that
matters.23 However, this at first sight creates problems for international law. If international
law is a legal system between and for States (and international organizations created by
States), then authorities and subjects converge: States create the legal norms which bind
themselves. International law is thus a system of conventional rules and it would be
superficial to introduce a rule of recognition since all the rules are agreed upon. This
superficial, but widespread description of international law, as law based upon consent,
indeed does not require the existence of a rule of recognition. However, international law,
despite the role played by consent, can and does have a rule of recognition. First, it will be
demonstrated that international law is not based on consent alone. Thus, States can be bound
by rules of international law, although they did not consent to them. Second, international law
is no longer solely concerned with relations between States, but has also regulated the rights
and duties of individuals. In international law authorities and subjects are thus not completely
fused. Third, the international legal system contains international and regional courts which
have to rule on the rights and obligations of States and international organizations and this

18
Infra. Nos. 63-64.
19
Infra. No. 126, note 539.
20
M. PAYANDEH, “The Concept of International Law in the Jurisprudence of Hart”, European Journal of
International Law 2011, 986.
21
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 100-103; J.L. COLEMAN,
“Authority and Reason”, in R.P. GEORGE (ed.), The Authority of Law: Essays on Legal Positivism, Oxford,
Clarendon, 1996, 291.
22
J. RAZ, The Concept of a Legal System, Oxford, Clarendon, 1980, 199; J. WALDRON, “All We Like Sheep”,
Canadian Journal of Law and Jurisprudence 1999, 180; A. SEBOK, “Finding Wittgenstein at the Core of the
Rule of Recognition”, Southern Methodist University Law Review 1999, 106-107.
23
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 117; J.L. COLEMAN, “Authority
and Reason”, in R.P. GEORGE (ed.), The Authority of Law: Essays on Legal Positivism, Oxford, Clarendon,
1996, 294-295.

5
requires that they are able to recognize the valid rules of international law. Fourth, not all
State officials are involved in international law-making at the same intensity. This entails that
a rule of recognition is required to allow State officials which are only marginally involved to
identify the rules of international law. National courts for instance are called upon to apply
international law to individuals, their own State or a foreign State, although their role in
international law-making is limited, in particular in the field of treaty law. So at least these
officials need a set of criteria to identify and apply rules of international law. Consequently,
although there remains to a certain extent a convergence between authorities and subjects in
international law, this does not exclude the existence of a rule of recognition.

6. International law is not barred from having secondary rules, including the rule of
recognition as a social rule amongst authorities to determine which norms are valid and thus
part of the legal system. The rule of recognition in international law can be found in Article
38 (1) Statute of the International Court of Justice. As such it only sets out which sources of
law the International Court of Justice may apply. However, since the Statute is accepted by all
States, it also expresses which sources States recognize as creating rights and obligations
between them, whose violations may be judged by the International Court of Justice. Hence,
the rule of recognition in international law determines that treaties, custom and general
principles of law can validly create international law.24 The rule of recognition must also
determine in sub-rules of recognition what the conditions are for a valid treaty, custom and
general principle. In this chapter the different sources will be discussed in relation to jus
cogens, but the conclusions will not be limited to that framework. With regard to treaties, the
conditions for valid treaties can be found in the Vienna Convention on the Law of Treaties.
One of the conditions of a valid treaty is laid down in Article 53: a treaty that derogates from
peremptory norms is void ab initio. The same provision sets out the conditions of a valid
peremptory norm and can thus be considered a sub-rule of recognition: it allows for the
identification of valid peremptory norms, that in turn has an impact on the existence of a valid
treaty. At this point in time the thesis will not inquire into the issue whether jus cogens also
invalidates other sources of international law,25 since this chapter is concerned with the
identification of valid peremptory norms and not with the validity of international law in
general.

§3. Elements of identification of peremptory norms in Article 53 Vienna Convention on

the Law of Treaties

7. The definition of jus cogens in Article 53 Vienna Convention on the Law of Treaties
specifies that treaties that derogate from peremptory norms are invalid and thus not part of the
international legal system. Unfortunately, the definition of Article 53, as a rule of recognition,
has a major flaw, in the sense that it solely defines the concept by its consequence, namely the
impermissibility of derogation, and lacks any substantive criteria to identify norms of jus
cogens. Consequently, it could be argued that Article 53 is not a rule of recognition, since it
does not permit identifying valid peremptory norms. However, HART himself was of the

24
M. PAYANDEH, “The Concept of International Law in the Jurisprudence of Hart”, European Journal of
International Law 2011, 990.
25
Infra, Chapter 4, Section 3, § 1.

6
opinion that a rule of recognition did not need to be absolutely clear. Such a rule may suffer
from a penumbra as is the case with primary rules. A rule of recognition hence could be
subjected to interpretation.26 Despite its relative vagueness, Article 53 nevertheless contains
important indications that would allow a preliminary delimitation of norms which could be
considered jus cogens. Hence, in the first chapter of the thesis, the definition of jus cogens as
it features in Article 53 will be dissected and interpreted. During the interpretation I will focus
on the intention of the parties, in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose. The preparatory
works of the International Law Commission, the subsequent commentaries of governments,
the debate in the Sixth Committee of the United Nations General Assembly and during the
Vienna Conference will be relied upon as a subsidiary means in order to underpin a certain
interpretation.27

8. A first element of the definition is that peremptory norms are norms of general
international law. Secondly, they have to be accepted and recognized by the international
community of States as a whole, and thirdly no derogation is permitted. Article 53 contains
also a fourth element, namely that the norm can only be modified by a norm having the same
character. However, this is not part of the actual definition. This element forms the last
sentence of Article 53 and stands in conjunction with the second sentence of this article which
contains the three elements mentioned above, collectively forming the definition of jus
cogens. The last sentence was added to stress the changing character of jus cogens norms, to
determine that such norms were not immutable to dynamic developments in the international
community, but does not add anything to the definition in relation to identification of norms
of jus cogens. Moreover, if it would be considered as an essential element of the definition,
this would cause problems in the identification of existing norms of jus cogens: in the
examination of the jus cogens status of a specific norm, one should also look into in the way it
might be possibly modified in the future, while the norms as it stands, is still operational in
the international community. This would require States, judicial bodies and legal authors to
play the role of prophets and fortune tellers and would unnecessarily hamper the identification
of peremptory norms.28 More theoretically, both limbs of Article 53 could be considered as
different secondary norms. The first part is to be considered a rule of recognition, while the
second part is laying down a rule of change.29 To treat this rule of change as an integral
element of the rule of recognition would undermine the rule of recognition since it would be
impossible to identify the rule as long as no change in the rule has occurred. Therefore, I will
address this aspect of Article 53 in Chapter 3. Nevertheless, the issue of modification has an
impact on the rule of recognition: norms which are perceived as unchangeable by nature or

26
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 147-154.
27
This approach is consistent with Article 31 and 32 Vienna Convention on the Law of Treaties (1969),
reflecting customary international law: Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, §
160, and the other decisions referred to.
28
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North Holland, 1976, 46.
29
HART noted that there was a close relationship between the rules of change and the rules of recognition, for the
latter will refer to the former: H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 95-96.
This is the case for Article 53 Vienna Convention on the Law of Treaties (1969), since it contains a rule of
recognition which equally refers to how peremptory norms may be changed. Yet, this is not the same as stating
that the rule of change is an essential part of the rule of recognition.

7
purely deduced from logic, cannot belong to the category of jus cogens. Thus, it establishes
that rules of jus cogens nature are subject to law-making – changing existing peremptory
norms or creating new ones – by relevant actors in the international community. Lastly, the
consequence of norms of jus cogens is the invalidity of the treaty derogating from it. Is this
sanction equally part of the rule of recognition? The question has arisen by the theory of
KOLB that primarily regards jus cogens as a legal technique which aims to protect a certain
legal regime from fragmentation. In his view jus cogens is wider than normally anticipated
and does not necessarily entail the invalidity of the conflicting instrument. Nor is jus cogens
limited to norms of general international law. Therefore, Article 53 is only a partial account of
the legal technique of jus cogens characterized by its ordre public nature, implying nullity as
sanction for derogation. Other forms of jus cogens do not necessarily have this specific
sanction or can be regional in scope. As a result, the thesis will examine whether Article 53 is
indeed the sole rule of recognition of jus cogens, excluding regional jus cogens, and secondly
whether the sanction of nullity is an integral part of this rule of recognition.

SECTION.2. A NORM OF GENERAL INTERNATIONAL LAW

9. The first element of the definition determines that a rule of jus cogens has to be a norm
of general international law. Therefore, in a first part it will be examined what the concept of
general international law means. Furthermore, this element of the rule of recognition of
Article 53 implicitly establishes which sources of international law could give rise to norms to
which jus cogens status might be attached since only sources of international law which could
give rise to general international law are eligible. The notion of sources is however not free
from ambiguity. Although, a general theory of sources of international law is outside the
scope of the doctoral thesis, the concept of sources will be briefly discussed. Afterwards the
concept of general international law will be dissected by looking into its meaning in the
debates of the International Law Commission on jus cogens, during the Vienna Conference,
the case law of the International Court of Justice and doctrine. This is followed by an
individual examination of custom, treaty and general principles of law in order to establish if
these three sources can create peremptory norms or that one or more may be excluded.
Finally, it will be examined whether the concept of jus cogens implies that a new,
autonomous source is required.

§1. The concept of source in international law

10. Classically a distinction is made between formal and material sources of international
law, the former denoting the processes giving rise to a legal rule, the latter referring to the
historical locus where the rule can be found or the substance of the rule.30 The concept of

30
C. PARRY, The Sources and Evidences of International Law, Manchester, Manchester University Press, 1965,
1; INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final
Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 723-724; G.M. DANILENKO, Law-Making in the International Community,
Dordrecht, Nijhoff, 1993, 22 et seq; P.-M. DUPUY; “L’unité de l’ordre juridique international”, 297 Recueil des
Cours 2002, 189-193; P. WEIL, “Le droit international en quête de son identité: cours général de droit
international public”, Recueil des Cours 1992-VI, 131-132.

8
sources is equally defined and used in other ways. KOLB has pointed out that in the past the
concept of sources had a rather open meaning containing not only the formal sources, but also
all legally relevant ideas, values and arguments.31 It is this sense which I will use to indicate a
“material source”, which will thus not only comprise the locus and substance of norms, but
also ideas, values and arguments which are used in law, although they cannot be reduced to
specific norms. This point of view will become highly relevant when discussing general
principles of law.32 VAN HOOF distinguishes between material and procedural or formal
“source”, the latter category being comprised of three analytical levels.33 Firstly, “source”
may refer to the basis of the binding force of the international legal system. The most famous
example of this type of source is the Grundnorm of KELSEN. At the second level the concept
of sources is used in the meaning of “constitutive element for rules of international law” or
“source in the form of a criterion by which one can decide whether or not a rule is in fact a
rule of international law”.34 For VAN HOOF this criterion is the consent of States.35 The third
level relates to the second level or source in the sense of “the relevant manifestations on the
basis of which the presence or absence of the constitutive element can be established”.36 It is
at this level that the formal sources sensu stricto can be found. Despite the analytical clarity of
the foregoing theory, I will not adhere to it since there does not exist a single criterion to
establish whether a rule belongs to international law. Consent is important, but not all formal
sources can be regarded as a manifestation of consent. Of course, States have to “consent” to
which formal sources give rise to rules of international law, but this does not mean that all
sources are based on consent.37 Therefore, the thesis will remain faithful to the classical
definition of formal sources as processes leading to rules of international law. These processes
might be formal or informal, although in the international sphere all sources are in some
degree informal processes.

11. What then are the processes giving rise to a rule of international law? Traditionally,
these sources are said to be found in Article 38 (1) Statute of the International Court of
Justice. However, Article 38, § 1 as such merely establishes which material sources the Court
may use in deciding a case. This is clear from Article 38 (1)(d) mentioning as subsidiary
means of determining international law judicial decisions and doctrine. It is generally
accepted that judicial decisions are only binding between the parties and limited to the case
before the Court, and the writings of publicists, even the most qualified, while persuasive,
evidentially do not give rise to binding rules of international law.38 Consequently, one may set

31
R. KOLB, “Principles as Sources of International Law (with Special Reference to Good Faith)”, Netherlands
International Law Review 2006, 2-3.
32
Infra, No. 93 et seq.
33
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
59.
34
Ibid., 59.
35
Ibid., 76-81.
36
Ibid., 59-60.
37
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 190.
38
Nevertheless there is some truth in the statement of SOHN that international law is not made by States, but
actually by international law professors: L.B. SOHN, “Sources of International Law”, Georgia Journal of
International and Comparative Law 1995-1996, 399. Nevertheless, States have to adopt doctrinal opinion as
their own, before such opinion could be become binding rules of international law. Yet, it should not be
forgotten that law and law creation is a human enterprise.

9
aside judicial decisions and doctrine as formal sources of international law, and focus on
treaties, customary international law, and general principles of law recognized by civilized
nations. Specifically, while there is no doubt that customary international law is a source of
international law which gives rise to general international law, there is more debate on treaties
and general principles of law as sources resulting in general international law.

§2. The concept of general international law

A. Introduction

12. The notion “general international law” does not appear in the enumeration of the
international law sources in Article 38 Statute of the International Court of Justice. As such,
this is not problematic since general international law is not a special sort of source of
international law, but merely indicates certain rules of international law determined ratione
subjectorum – or the number of States which are bound by a particular rule.39 In this respect,
there has been a debate in doctrine whether general international law in Article 53 Vienna
Convention on the Law of Treaties implies universal acceptance of a particular rule.
According to VIRALLY “general” does in fact entail that the norm is universally binding.40
This view is confirmed by the Chairman of the International Law Commission’s Drafting
Committee, BARTOŠ, who stated that the Drafting Committee meant to make it clear that
“[T]he article [53] was concerned with universal international law and that therefore the title
referred to general international law”.41 However, with respect to the definition of jus cogens
the majority considers that general international law is binding for all States or at least nearly
all States or a significant majority of States,42 although a blurring sometimes occurs between
this element of the definition and the element that the norm should be accepted and
recognized by the international community of States as a whole.43
The debate has also been held outside the field of jus cogens. KELSEN equally was of the
opinion that general international law was binding upon all States, other norms being specific
international law.44 On the other hand, LAUTERPACHT made a distinction between universal
international law and general international law, the former being binding on (practically) all
the members of the international community, the latter on the majority of States, including the
major powers.45

39
G.P. BUZZINI, “La ‘généralité’ du droit international public”, Revue Générale de Droit International Public
2004, 390-392.
40
M. VIRALLY, “Réflexions sur le ‘Jus Cogens’”, Annuaire Français de Droit International 1966, 13. Also : L.
GROSSE, “Racines historiques et fondements contemporains des normes impératives (Jus cogens) dans la théorie
et la pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et Politiques
1995, 235.
41
705th Meeting of the International Law Commission, Yearbook of the International Law Commission 1963,
Vol. I, § 72.
42
A. GÓMEZ ROBLEDO, “Le jus cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours
1981-III, 92-93; L.A. ALEXIDZE, “Legal Nature of Jus Cogens in Contemporary International Law”, Recueil des
Cours 1981-III, 257; G. GAJA, “Jus Cogens beyond the Vienna Convention”, Recueil des Cours 1981-III, 283.
43
L.A. ALEXIDZE, l.c., 256-257
44
H. KELSEN, Principles of International Law, London, Holt, Rinehart and Winston, 1967, 288.
45
H. LAUTERPACHT, “Règles générales du droit de la paix”, Recueil des Cours 1937-IV, 195-197.

10
13. The normal and ordinary meaning of the term “general” is different from that of
“universal”, the latter indicating that in that case all States are bound by the rule, while the
former term denotes that the rule is binding for an overall majority of States. Consequently,
universal international law no doubt is a category of general international law, but general
international law needs not to be universal. In fact, the debate in the field of jus cogens partly
arises from the mixing of two elements of the definition, namely general international law and
the acceptance of the international community of States as a whole. Despite the connection
between these two elements – the more a norm is generally accepted, the more the likelihood
that it can attain the status of a norm of jus cogens – there remains a distinction between the
two. The element of general international law delimits the norms which could possibly attain
the status of a peremptory norm. The second element is the necessary requirement to actually
bestow a rule of general international law with a jus cogens character. Theoretically, it is
possible that a rule of general international law accepted by a large majority can become a jus
cogens norm by a declaration of the international community of States as a whole, resulting in
the binding nature of the rule for the whole international community. This can certainly
happen in the case of a treaty ratified by a majority of States, rules of which are subsequently
accepted by the international community of States as being part of jus cogens, even if these
rules could not be regarded as customary international law. However, it is admitted that with
regard to general customary international law, these rules have the tendency to become
universal due to a wide view on the binding nature of customary international law and due to
what actually constitutes State practice.46 Nevertheless, theoretically, it remains conceivable
that a customary rule which a majority has accepted as part of customary international law can
become a norm of jus cogens by the acceptance and recognition of the whole international
community of States that this rule belongs to jus cogens. The rule in question will become
universally binding, although there might not be sufficient universal State practice to conclude
that before the rule became part of jus cogens it was universally obligatory.

14. Nonetheless, the concept of general international law remains quite opaque with regard
to which sources of international law could give rise to rules of general international law.
While it is quite clear that certainly rules of customary international law can become general
international law, the issue of general treaties and general principles recognized by civilized
nations as part of general international law is more debated. In contrast with treaties,
customary international law is binding on newly formed States, which could not participate in
its creation; furthermore, customary international law does not suffer from the pacta tertiis
nec nocent, nec prosunt rule, is not subjected to reservations and the rebus sic stantibus
doctrine and cannot be denounced. This has led some authors to conclude that only customary
international law can be regarded as general international law.47 With regard to general
principles recognized by civilized nations, the question arises what their exact scope and
function is. However, before turning to the examination of each source separately, it will be
examined whether one of these sources is excluded from the concept of general international
law in the preliminary works of the International Law Commission, while discussing jus

46
Infra, Chapter 1, Section 2, § 3, A.
47
J.A. BARBERIS, “La liberté de traiter des Etats et le jus cogens”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1970, 44-45; K. MAREK, “Thoughts on Codification”, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 1971, 497.

11
cogens; the debate at the Vienna Conference; the case law of the International Court of
Justice; and doctrine.

B. General international law in the debates of the International Law Commission on

Article 53 Vienna Convention on the Law of Treaties

15. During the drafting of the article on jus cogens in the Vienna Convention on the Law of
Treaties, the International Law Commission did not give attention to the issue of general
international law in relation to the sources of international law.48 On the contrary, the
International Law Commission unambiguously rejected the appropriateness and usefulness of
making a distinction between the possible sources of international law for the purpose of
establishing the peremptory nature of a norm: what counts is not the source from which a
norm flows, but its substance.49 This opinion is in a sense logical since when a norm is
considered part of jus cogens, the particular source of that norm is not relevant anymore.50
However, the issue of sources does matter if one tries to identify peremptory norms. If it is
clear that some sources could not give rise to norms of general international law, and thus
cannot become peremptory norms under Article 53 of the Convention, norms originating from
these sources do not have to be retained in the quest for identifying peremptory norms.
Despite the fact that the International Law Commission did not deeply delve into the matter of
sources in relation to general international law, members of the International Law
Commission discussed the sources of norms of jus cogens. Some favoured a natural law
approach, but this group constituted a minority.51 Consequently, the majority considered that

48
The Drafting Committee had used the notion of general international law in the first place to indicate that a
norm of jus cogens should belong to international law binding on the universality of States as opposed to
regional international law: BARTOŠ, 705th Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 72.
49
“Draft Articles on the Law of Treaties with Commentaries” Yearbook of the International Law Commission
1966, Vol. II, 248.
50
B. SIMMA, “From Bilateralism to Community Interest”, Recueil des Cours 1994-IV, 292; J. SZTUCKI, Jus
Cogens and the Vienna Convention on the Law of Treaties, Vienna, Springer, 1974, 73; R. KOLB, “The Formal
Source of Ius Cogens in Public International Law’, Zeitschrift für öffentliches Recht 1998, 77, 80 and 94; W.
CZAPLIŃSKI and G.M. DANILENKO, “Conflicts of Norms in International Law”, Netherlands Yearbook of
International Law 1990, 11; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford
University Press, 2005, 105.
51
ROSENNE, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 55, stating that rules of jus cogens could not only result from international rules, but
equally from considerations of morals and public order; PAL, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 67, referring to a higher allegiance
to the principle of justice; but see: PAL, 684th Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 36; DE LUNA, 684th Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963 Vol. I, §§ 58-62; at the 685th Meeting, DE
LUNA seemed to have changed his position by stating that jus cogens belonged to positive law, which he defined
as “the rules in force in the practice of the international community”: DE LUNA, 685th Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 19; however, this
is not necessarily so, since norms of natural law could theoretically be regarded – and indeed should be regarded
– as rules in force for members of the international community. It is in the light of the foregoing that DE LUNA’s
statement at the 828th Meeting that jus cogens belongs to the realm of positive law should be read: DE LUNA,
828th Meeting of the International Law Commission, Yearbook of the International Law Commission 1966, Vol.
I, § 32. However, his statement in § 34 of that Meeting negates his earlier statements.

12
a norm of jus cogens would arise out of the regular sources of international law.52 While in
the case law of the International Court of Justice, general international law is limited to
general customary law,53 some members of the International Law Commission saw no
difficulty in considering treaties as a source of jus cogens norms.54 Others regarded customary
international law as the only source of jus cogens norms.55 Some members of the
Commission also used the terminology of “principles of international law” in the discussion
on jus cogens.56 Whether they referred to general principles of law in the meaning of Article
38 (1)(c) Statute of the International Court of Justice, is not always clear. Partially the use of
the term “principles” stems from the then proposed draft article 13 stating that “A treaty is
contrary to international law and void if its object or execution involve the infringement of a
general rule or principle of international law having the character of jus cogens”.57 Although
the meaning of general principle of international law was discussed, statements do not lead to

52
YASSEEN, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 41, reaffirming his position in the next meeting: YASSEEN, 684th Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 76; GROS, 684th
Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §
70; BARTOŠ, 685th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 33. See also: TUNKIN, 684th Meeting of the International Law Commission,
Yearbook of the International Law Commission 1963, Vol. I, §§ 21-25; AGO, 684th Meeting of the International
Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 50; TABIBI, 683rd Meeting of
the International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §§ 44-45.
53
Infra, No. 19 et seq.
54
YASSEEN, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 39 and § 43; AGO, 683rd Meeting of the International Law Commission, Yearbook of
the International Law Commission 1963, Vol. I, § 78; TABIBI, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 45; TUNKIN, 684th Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §§ 25-26; see also:
TUNKIN, 705th Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I., § 75; ROSENNE, 685th Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 13; RUDA, 841st Meeting of the International Law Commission,
Yearbook of the International Law Commission 1966, Vol. I, § 3. See also: Special Rapporteur WALDOCK,
“Second Report on the Law of Treaties”, Yearbook of the International Law Commission 1963, Vol. II, 53; Draft
Articles on the Law of Treaties with Commentaries, Yearbook of the International Law Commission 1966, Vol.
II, 248.
55
AGO, 684th Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I, § 50; this is not in contrast with his statement at the 683rd meeting (AGO, 683rd Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 78) since he
referred to codification treaties, which departing from a strict meaning of codification only contain existing rules
of customary international law; see also: AGO, 685th Meeting of the International Law Commission, Yearbook of
the International Law Commission 1963, Vol. I, § 21.
56
BRIGGS, 683rd Meeting of the International Law Commission, Yearbook of the International Law Commission
1963,Vol. I, § 28; YASSEEN, 683rd Meeting of the International Law Commission, Yearbook of the International
Law Commission 1963, Vol. I, § 37; PAL, 683rd Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 64; BARTOŠ, 683rd Meeting of the International Law Commission,
Yearbook of the International Law Commission 1963, Vol. I, § 83; TUNKIN, 684th Meeting of the International
Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §§ 21-22; ROSENNE, 685th
Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 5;
LACHS spoke of ‘general principles’: LACHS, 684th Meeting of the International Law Commission, Yearbook of
the International Law Commission 1963, Vol. I, § 7; GROS referred to ‘general principles of law’: GROS, 684th
Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §
70.
57
“Draft Article 13 Law of Treaties”, Yearbook of the International Law Commission 1963, Vol. II, 52.

13
an unequivocal conclusion on its exact meaning. AMADO was the first to raise the issue of
interpretation of “rule” and “principle” and whether “or” should be read disjunctively or
conjunctively.58 AGO therefore proposed to remove the two different categories from the draft
and to replace it with “general and peremptory rule”59 TUNKIN saw no great importance in the
distinction between the two notions; ROSENNE concurred, but was however in favour of
retaining the distinction.60 Special Rapporteur WALDOCK specified the use of the two
concepts by referring to the case law of the International Court of Justice which had used the
term “principles” in the Corfu Channel Case to invoke considerations of humanity, and it did
not seem justified to him to speak of “rules” in this respect. However, he added that he had no
objection to the removal of the distinction since in his view these principles were equally
recognized as rules of positive international law.61 The Drafting Committee eventually
abandoned the distinction and replaced it with “general international law”.

16. Neither the statement of Special Rapporteur WALDOCK nor the removal of the
distinction by the Drafting Committee can as such lead to the conclusion that general
principles of law recognized by civilized nations could not give rise to norms of jus cogens.
With regard to the statement of WALDOCK, general principles of law recognized by civilized
nations are part of positive law, even when one adopts the restrictive approach of considering
them as national principles which are adjusted and brought to the international level to fill in
lacunae. Once introduced in the international legal order they operate as rules in the broad
sense.62 Concerning the removal of the distinction, this begs the question whether general
principles of law belong to general international law.
Nevertheless, it is unlikely that members of the International Law Commission
considered general principles of law as giving rise to rules of jus cogens. Firstly, there is a
terminological difference between general principles of international law and general
principles of law recognized by civilized nations. General principles of international law are

58
AMADO, 684th Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I, § 16.
59
AGO, 684th Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I, § 51.
60
ROSENNE, 685th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 7.
61
Special Rapporteur WALDOCK, 685th Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 44.
62
There is a theoretical distinction between “principles” and “rules”. A principle is not in itself a rule, but
underlies a particular rule: G.G. FITZMAURICE, ““The General Principles of International Law Considered from
the Standpoint of the Rule of Law”, Recueil des Cours 1957-II, 2. According to DWORKIN, who makes a
distinction between rules, policy and principles, principles state a “reason that argues in one direction, but does
not necessitate a particular decision”; principles, unlike rules do not set out legal consequences that follow
automatically when the conditions provided are met: R. DWORKIN, Taking Rights Seriously, Cambridge, Mass.,
Harvard University Press, 1978, 25-26. In the foregoing senses, the statement of WALDOCK and of GROS,
considering general principles as rules of international law is peculiar. However, a general principle of law is not
automatically transferred from national law into international law, but it becomes modified to fit the new legal
environment and specified to suit the case in which it will be applied. Consequently, a general principle of law as
applied by the International Court of Justice will not reflect the underlying rational of the rule, but will be a rule
itself. Furthermore, if one considers general principles of law as containing principles of international law, the
underlying reason of a rule, the principle, perfectly could have normative consequences itself or be laid down in
positive international law and hence operates as a rule.

14
rules of general international law of a fundamental or more abstract character.63 General
principles of law are generally considered as a subsidiary source of international law filling in
lacunae or determining procedural issues,64 although it has to be admitted that the distinction
between customary international law and general principles of law is not always clear.65
Secondly, not a single member of the Commission even those who used the term “principles”,
did identify general principles of law recognized by civilized nations as a source of jus
cogens, while they explicitly spoke of customary rules and conventional rules as rules able of
obtaining jus cogens character.66 Therefore, it may be safe to conclude that according to the

63
See: Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America),
Judgment, ICJ Rep. 1984, § 79; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep.
1996, §§ 77-78; H. WALDOCK, “General Course of International Law”, Recueil des Cours 1962-II, 68-69; M.
LACHS, “The Development and General Trends of International Law in Our Time”, Recueil des Cours 1980-IV,
196-197. Yet, BROWNLIE considers the subject matter of general principles of law to overlap with general
principles of international law, which he regards as generally recognized and accepted abstractions from a mass
of rules so that they are no longer directly connected with State practice: I. BROWNLIE, Principles of Public
International Law, Oxford, Oxford University Press, 2003, 18-19. ROUSSEAU divides general principles of law
into two categories: general principles derived from private law and general principles of international law. He
extracts his definition of the latter category from S.S. Lotus which however deals with customary international
law; furthermore, his examples could also be brought back to rules of customary international law: C.
ROUSSEAU, Droit international public, Tome I, Introduction et sources, Paris, Sirey, 1970, 389-395.
64
A good example is the principle of estoppel or preclusion which prevents a State to change a certain
representation of facts to the detriment of another State which relied and was entitled to rely on the
representation. See: Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua),
Judgment, Merits, ICJ Rep. 1960, 209 and 213; Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, ICJ Rep. 1962, 32; Separate Opinion Vice-President ALFARO, Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, ICJ Rep. 1962, 39-40; Dissenting Opinion Judge SPENDER, Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment, ICJ Rep. 1962, 143. Another example is the use of
circumstantial evidence: Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, ICJ Rep. 1949,
18.
65
For instance, the Permanent Court of International Justice held in the Chorzów Factory case that it is a
principle of international law that the breach of an engagement involves an obligation to make reparation in an
adequate form: Factory at Chorzów (Germany v. Poland), Jurisdiction, Judgment, PCIJ Publ., Series A, No. 9,
21; from this it cannot be exactly determined whether the Court was referring to customary international law or
general principles of law. However, in a later judgment it considered the duty to pay compensation a principle of
international law and a general conception of law to make reparation: Factory at Chorzów (Germany v. Poland),
Merits, Judgment, PCIJ Publ., Series A, No. 17, 29; this seems to imply that the principle of international law is
different from a general principle of law, which can be the basis of the existence of the principle in international
law.
66
Supra, No. 15. Moreover, ROSENNE used the notion “principle of international law” whilst referring to the
principle of pacta sunt servanda embodied in the Charter of the United Nations: 685th Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 5; TUNKIN (684th
Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §§
21-25) also did not equate principles of international law with general principles of law since according to him
rules of international law could only be established by custom or treaty: TUNKIN, 685th Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 30; concerning
general principles of law TUNKIN regarded them as binding only if they were incorporated in a rule of customary
international law or in a treaty: G.I. TUNKIN, “Co-existence and International Law”, Recueil des Cours 1958-III,
25-26; the statement of WALDOCK can be explained by his view on general principles of law in an earlier
publication: according to him, there is a certain overlap between custom and general principles of law, which has
the tendency to crystallise into a customary rule; furthermore he considered that the Court in the Corfu Channel
Case when making reference to “elementary considerations of humanity” was regarding it as part of customary
international law. See: H. WALDOCK, “General Course on Public International Law”, Recueil des Cours 1962-II,
62-64.

15
International Law Commission general international law consisted of treaty or customary
rules binding generally on the members of the international community.

17. During the debate ROSENNE considered that resolutions of the United Nations General
Assembly could constitute in certain circumstances jus cogens,67 and thus constitute a norm of
general international law. However, this position was vigorously attacked by other members
of the International law Commission who did not share the opinion that General Assembly
resolutions could be regarded as a source of jus cogens since they are only recommendatory,
though they were ready to admit that General Assembly resolutions might play a part in the
formation of a rule of general international law with jus cogens character.68 Consequently, it
is clear that according to the Commission, General Assembly resolutions cannot create a norm
of general international law as such, but they have a role to play in the formation of general
international law.

C. Observations by States on the nature of general international law in relation to jus

cogens

18. During various stages of the drafting of the Vienna Convention on the Law of Treaties
States had the opportunity to express their viewpoints on the inclusion of jus cogens in the
law of treaties. Firstly, in the final stage of the work of the International Law Commission
from 1962 to 1966, States sent written comments to the Commission, discussing inter alia the
issue of jus cogens. However, these comments do not give any indication on their viewpoint
concerning general international law in the framework of jus cogens since they discuss the
desirability of introducing jus cogens into the law of treaties. Of the States commenting on the
issue, only Luxemburg and Turkey had serious reservations to the inclusion of peremptory
norms out of fear of stability of treaty relations.69 During debates in the Sixth Committee of

67
ROSENNE, 685th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 9 and § 12.
68
AGO, 685th Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I, § 25; TUNKIN, 685th Meeting of the International Law Commission, Yearbook of the International
Law Commission 1963, Vol. I, § 30; YASSEEN, 685th Meeting of the International Law Commission, Yearbook of
the International Law Commission 1963, Vol. I, § 32; BARTOŠ, 685th Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, §§ 36-37.
69
Comments of Luxemburg on Parts I, II and III of the Draft Articles on the Law of Treaties Drawn up by the
Commission at its Fourteenth, Fifteenth and Sixteenth Session, Yearbook of the International Law Commission
1966, Vol. II, 311-312; Commentary of Turkey on Parts I, II and III of the Draft Articles on the Law of Treaties
Drawn up by the Commission at its Fourteenth, Fifteenth and Sixteenth Session, Yearbook of the International
Law Commission 1966, Vol. II, 341; the comments of the government of Czechoslovakia (Yearbook of the
International Law Commission 1966, Vol. II, 286), the Netherlands (Yearbook of the International Law
Commission 1966, Vol. II, 317), Portugal (Yearbook of the International Law Commission 1966, Vol. II, 327)
and Yugoslavia (Yearbook of the International Law Commission 1966, Vol. II, 360) are supportive of the
inclusion of jus cogens in the law of treaties; the comment of the government of Sweden, although not opposing
jus cogens, does voice some concerns about the uncertainty it may provoke (Yearbook of the International Law
Commission 1966, Vol. II, 340); the United Kingdom thought it essential that some adjudication procedure was
provided for (Yearbook of the International Law Commission 1966, Vol. II, 344); similarly the United States,
while endorsing jus cogens, uttered concerns as to its application in practice (Yearbook of the International Law
Commission 1966, Vol. II, 354); the comments of the government of Cyprus (Yearbook of the International Law

16
the United Nations General Assembly at its eighteenth (1963) twentieth (1965) and twenty-
first (1966) session, the concept of jus cogens was debated, however not as such with regard
to general international law. However, some delegations touched upon the issue. Most notably
Austria stated that general international law was comprised of treaties and customary
international law, but it equally added that peremptory norms consisted out of two categories,
namely general principles of law and principles of international law on the one hand, and on
the other hand cardinal treaty rules and customs.70 Italy considered general principles of law
and customary international law as sources giving rise to peremptory norms.71 According to
the Netherlands, custom was the only source.72 Romania spoke of “general principles of
present-day international law”.73 During the Vienna Conference custom and treaties were the
most cited sources of peremptory norms.74 General principles of law, while not explicitly
mentioned, were equally not refuted as a source of peremptory norms, except by Trinidad and
Tobago.75

D. General international law in the case law of the International Court of Justice

19. The concept of general international law has appeared rather frequently in the
judgments and advisory opinions of the International Court of Justice. In most instances, the
Court regarded the notion of general international law as synonymous with customary
international law of a general nature, contrasted with treaties and particular customary
international law. For instance in Gabčikovo-Nagymaros Project the Court stated that:

Commission 1966, Vol. II, 285) and Israel (Yearbook of the International Law Commission 1966, Vol. II, 296)
are rather neutral.
70
Statement of Austria, General Assembly, Twenty-First Session, 911th Meeting of the Sixth Committee,
General Assembly Official Records 1966, UN Doc. A/C.6/SR.911, § 6 and § 10.
71
Statement of Italy, General Assembly, Twentieth Session, 851st Meeting of the Sixth Committee, General
Assembly Official Records 1965, UN Doc. A/C.6/SR851, § 11.
72
Statement of The Netherlands, General Assembly, Twentieth Session, 847th Meeting of the Sixth Committee,
General Assembly Official Records 1965, UN Doc. A/C.6/SR.847, § 10.
73
Statement of Romania, General Assembly, Eighteenth Session, 783rd Meeting of the Sixth Committee,
General Assembly Official Records 1963, UN Doc. A/C.6/SR.783, § 32.
74
Cuba, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 36; Poland, 53th Meeting of the Committee of the Whole, United Nations
Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 34; United Kingdom, 53th Meeting of the
Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, §
60; Italy, 54th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 43; Hungary, 54th Meeting of the Committee of the Whole, United Nations
Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 46; Federal Republic of Germany, 55th
Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records,
Vol. I, 1969, § 33 (mentioning custom and general principles of law); Trinidad and Tobago, 56th Meeting of the
Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, §
63; Cuba, 19th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II,
1970, § 45; Poland, 19th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records,
Vol. II, 1970, § 69; Italy, 20th Plenary Meeting, United Nations Conference on the Law of Treaties, Official
Records, Vol. II, 1970, §§ 37-38
75
Trinidad and Tobago, 56th Meeting of the Committee of the Whole, United Nations Conference on the Law of
Treaties, Official Records, Vol. I, 1969, § 64.

17
 “The violation of other treaty rules or of rules of general international may justify
the taking of certain measures, including countermeasures, by the injured State,
but it does not constitute a ground for termination under the law of treaties.”, and
continued: “That relationship [the relationship based on the Treaty of 1977] is also
determined by the rules of other relevant conventions to which the two States are
party, by the rules of general international law and, in this particular case, by the
rules of State responsibility; but it is governed, above all, by the applicable rules
of the 1977 Treaty as a lex specialis”.76

The same contrast can be found inter alia in the United States Diplomatic and Consular
Staff in Tehran, the Elettronica Sicula S.p.A. (ELSI) and the Border and Transborder Armed
Actions.77

20. The terminology seems however not always to be used to refer to general customary
international law alone. For instance, the concept was first used by the International Court of
Justice in the North Sea Continental Shelf Cases, in which case the Court held:

“It is maintained by Denmark and the Netherlands that the Federal Republic,
whatever its position may be in relation to the Geneva Convention, considered as
such, is in any event bound to accept delimitation on an equidistance-special
circumstances basis, because the use of this method is not in the nature of a
merely conventional obligation, but is, or must now be regarded as involving, a
rule that is part of the corpus of general international law; – and, like other rules
of general or customary international law (emphasis added) is binding on the
Federal Republic automatically and independently of any specific assent, direct or
indirect, given by the latter.”78

21. Apparently, according to this paragraph, the corpus of general international law might
be comprised of rules other than customary international law. Furthermore, these other rules
cannot be of conventional nature since the argument was that the delimitation of the

76
Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Rep. 1997, § 106 and § 132.
77
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ
Rep. 1980, § 62, § 69, § 90, § 94; Border and Transborder Armed Actions (Honduras v. Nicaragua),
Jurisdiction and Admissibility, Judgment, ICJ Rep. 1988, § 35; Elettronica Sicula S.p.A. (ELSI) (United States
of America v. Italy), Judgment, ICJ Rep. 1989, § 111; other judgments and advisory opinions in which general
international law is considered as general customary international law: Nottebohm Case (Liechtenstein v.
Guatemala), Preliminary Objection, Judgment, ICJ Rep. 1953, 119-120; Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 256 (1970), Advisory Opinion, ICJ Rep. 1971, § 96 and § 121; Aegean Sea Continental Shelf Case
(Greece v. Turkey), Judgment, ICJ Rep. 1978, §§ 72-77; Continental Shelf (Tunisia v. Libyan Arab Jamahiriya),
Judgment, ICJ Rep. 1982, § 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v.
United States of America), Judgment, ICJ Rep. 1984, § 94, §§ 106-107, §§ 122-123; Oil Platforms (Iran v.
United States of America), Preliminary Objection, Judgment¸ ICJ Rep. 1996, § 13; Legal Consequences of the
Construction of A Wall in the Occupied Palestinian Territories, Advisory Opinion, ICJ Rep. 2004, § 150; Armed
Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ Rep. 2005,
§ 257; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, § 149.
78
North Sea Continental Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. the
Netherlands), Judgment, ICJ Rep. 1969, § 37.

18
continental shelf on the basis of the equidistance-principle is not only a conventional
obligation. What constitute those rules which are part of general international law, but are not
customary, is hinted at in the second next part of the paragraph in question:

“This contention has both a positive law and a more fundamentalist aspect. As a
matter of positive law it is based on the work done in this field by international
legal bodies, on State practice and on the influence attributed to the Geneva
Convention itself, – the claim being that various factors have cumulatively
evidenced or been creative of the opinio juris sive necessitatis, requisite for the
formation of new rules of customary international law. In its fundamentalist
aspect, the view put forward derives from what might be called the natural law of
the continental shelf (emphasis added), in the sense that the equidistance principle
is seen as a necessary expression in the field of delimitation of the accepted
doctrine of the exclusive appurtenance of the continental shelf to the nearby State,
and therefore having an a priori character of so to speak juristic inevitability.”79

22. Taking these two sections together, the Court considers that the contention of Denmark
and the Netherlands is not only based on customary international law, but equally on natural
law. Consequently, general international law seems to comprise rules of customary
international law as well as rules of natural law, for which there does not exists a need to
demonstrate State practice and opinio juris. Yet, it has to be emphasized that the Court only
reiterates the position of Denmark and the Netherlands. Its own dictum on the issue leads
however not to the conclusion that it accepts or rejects the possibility of natural law as part of
general international law. The Court merely came to the conclusion that “the notion of
equidistance as being logically necessary, in the sense of being an inescapable a priori
accompaniment of basic continental shelf doctrine is incorrect.”80 There is not an explicit
rejection or endorsement of natural law as a source of general international law. The issue can
however be solved by looking at the arguments of Denmark and the Netherlands. From this, it
can be concluded that the Court has partially misinterpreted their arguments. Indeed, in their
argumentation both countries referred to proximity or contiguity as the fundamental norm of
maritime international law, which was the relevant norm calling for the application of the
equidistance principle.81 A fundamental norm is not necessarily identical to natural law. In
addition they referred in this respect to customary international law. In his pleadings Sir
WALDOCK stated that States had ipso jure exclusive sovereign rights over their continental
shelf on the basis of adjacency of the continental shelf to the coast and that this was part of
general customary international law.82 To determine whether the continental shelf is adjacent
to one State, rather than to another, proximity is the dominant criterion. Since application of
the equidistance-principle establishes a division of the continental shelf based on proximity to
the coast, this principle is therefore a necessary corollary to the law of the continental shelf,
which is part of customary international law. Hence, the contention of the parties regarding

79
Ibid., § 37.
80
Ibid., § 46.
81
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), CR 1968, 23 October to 11 November 1968 and on 20 February 1969, 95 and 99, at
http://www.icj-cij.org/docket/files/52/9359.pdf.
82
Ibid., 92.

19
the fundamental rule of proximity, which the Court read as the natural law of the continental
shelf, was that since States have under customary international law exclusive rights over the
continental shelf, the necessary corollary norm of proximity and delimitation on the basis of
equidistance is equally part of customary international law.83 One can therefore conclude that
the Court mistakenly made a differentiation between general international law and other
sources of international law, in particular customary international law.

23. In a number of cases concerning delimitation of maritime areas the International Court
of Justice speaks of general international law “as developed through its case law, arbitral
jurisprudence and the work of the Third United Nations Conference on the Law of the Sea”.84
As will be demonstrated below, the work of States during an international conference might be
considered as State practice needed to establish a rule of customary international law.
However, the case law of the International Court of Justice and arbitral jurisprudence cannot
develop customary international law, since it is not relevant practice. The International Court
of Justice is an international tribunal whose decisions only have binding force as between the
parties pursuant to Article 59 of its Statute. Concerning arbitral jurisprudence, although it has
on occasion been considered as State practice, it again is simply a decision by an independent
body, binding upon the parties, but not practice of the States to the dispute themselves.85 Did
the International Court of Justice consider general international law as something more than
just customary international law? It is submitted it did not. First of all, a decision by an
international tribunal has a certain authority and might trigger State practice in conformity
with the decision. In this sense, the decision assists in developing the rule of customary
international law. Secondly, in cases of maritime delimitation, customary international law
prescribes that an equitable result should be reached taking into account all relevant
circumstances.86 In order to determine what an equitable result is and what the relevant
circumstances are in a particular instance, the case law of arbitral panels and the International
Court of Justice can give guidance, next to State practice.87 As a result, the impact of arbitral

83
H.W.A. THIRLWAY, “The Law and Procedure of the International Court of Justice 1960-1989, Part Three”,
British Yearbook of International Law 1991, 34. The point was equally addressed in the Dissenting Opinion of
Judge TANAKA and MORELLI: Dissenting Opinion Judge TANAKA, North Sea Continental Shelf Cases (Federal
Republic of Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969,
180-181; Dissenting Opinion Judge MORELLI, North Sea Continental Shelf Cases (Federal Republic of Germany
v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 202.
84
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America),
Judgment, ICJ Rep. 1989, §§ 91-94; Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway), Judgment, ICJ Rep. 1993, § 55.
85
See generally: M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des Cours 1998-
II, 202; KOPELMANAS is of the contrary opinion: L. KOPELMANAS, “Custom as a Means of the Creation of
International Law”, British Yearbook of International Law 1937, 142 et seq.
86
Concerning the delimitation of the continental shelf: North Sea Continental Shelf Cases (Federal Republic of
Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, § 85;
concerning delimitation of fisheries zones: Maritime Delimitation in the Area between Greenland and Jan
Mayen (Denmark v. Norway), Judgment, ICJ Rep. 1993, §§ 47-48; concerning delimitation of the exclusive
economic zone: article 74, § 1 and Article 83, § 1 United Nations Convention on the Law of the Sea (1982)
require an equitable solution; this was considered by the International Court of Justice as constituting customary
international law: Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway),
Judgment, ICJ Rep. 1993, § 48.
87
Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Rep. 1985, § 28.

20
jurisprudence and case law of the International Court of Justice has a greater impact in
concretising and developing general international law.88

24. In Barcelona Traction, Light and Power Company, Limited the Court did not only use
the term “general international law”, but equally spoke of “general law”.89 The term general
international law is identical to customary international law. For instance, in paragraph 34
general international law stands in contrast with treaty law and the Court refers in this respect
to its advisory opinion in the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, in which it held that the prohibition of genocide is
existent and binding upon states not party to the Convention.90 In paragraph 87 a reference is
made to general international law again in contrast to conventional arrangements. “General
law” is used in paragraph 37 in relation to the law of diplomatic protection. However, general
law does refer to customary international law since the gist of the case concerned the issue of
diplomatic protection, which is undoubtedly firmly entrenched in the realm of customary
international law.91

25. In conclusion, the notion “general international law” in the case law of the International
Court of Justice in most situations unambiguously refers to customary international law
binding upon an indeterminate majority of States. In the few cases in which “general
international law” seemed to be used in a different meaning, an analysis of the case leads to
the conclusion that the Court probably meant general customary international law. In any
event, problems in identifying the notion of general international law have arisen in older case

88
ORAISON is of the opinion that especially in the case of rules of customary international law because of their
larger “penumbra”, judicial bodies have a greater impact in shaping the law: A. ORAISON, “La Cour
Internationale de Justice, l’article 38 de son Statut et la coutume internationale”, Revue de Droit International, de
Sciences Diplomatiques et Politiques 2002, 297. In general, this is correct, but one may not lose out of sight that
judicial decisions are not formal sources of international law, only material. They cannot give rise to binding
rules, even not between the parties since only the decision is binding, not the interpretation of the content of a
rule of customary international law. Of course, States will frequently adjust their conduct to the judicial
determination of a rule of customary international law, but they might equally en masse reject this interpretation,
as happened in the S.S. Lotus.
89
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, 3.
90
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Rep. 1951, 23.
91
Diplomatic protection was already recognized by VATTEL: E. DE VATTEL, The Law of Nations or the
Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, Washington, Carnegie
Institution of Washington, 1916, Vol. III, Chap. IV, 136; The Permanent Court of International Justice in the
Panevezys-Saldutiskis Railway Case held that diplomatic protection was a “rule of international law”:
Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania), Judgment, PCIJ Publ., Series A/B, No. 76, 16. See
also: Interhandel Case (Switzerland v. United States of America), Preliminary Objections, Judgment, ICJ Rep.
1959, 27, stating that exhaustion of local remedies, one of the conditions to exercise diplomatic protection, is
part of customary international law. Recently, the International law Commission has codified the law on
diplomatic protection, defining in Article 1 diplomatic protection as consisting of the invocation by a State,
through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an
injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the
former State with a view to the implementation of such responsibility: Article 1 Draft Articles on Diplomatic
Protection (2006); this definition has been accepted as customary: Ahmadou Sadio Diallo (Republic of Guinea
v. Democratic Republic of Congo), Preliminary Objections, Judgment, ICJ Rep. 2007, § 39.

21
law of the Court, which has in recent case law always used general international law as
synonym for general customary international law.

E. General international law in doctrine

26. In this section the notion of general international law in doctrine will be examined. It is
impossible to examine the view of all authors in this regard, so a representative selection will
be made. The selection will comprise of authors who discussed the concept of general
international law generally, without reference to jus cogens, and authors which debated the
formal sources of jus cogens and consequently implicitly gave their opinion on the issue of
general international law.

27. Doctrine generally accepts customary international law as falling under the category of
general international law. It is equally considered as the formal source of norms of jus cogens.
The question does not revolve around whether custom gives rise to general international law
or norms of jus cogens, but whether it is the only source having these capabilities. Some
authors are explicit in considering customary international law as the only source of general
international law or jus cogens.92 Others do regard general international law as either
comprised of customary and treaty law93 or customary international law and general

92
I.D. SEIDERMAN, Hierarchy in International Law, The Human Rights Dimension, Antwerp, Intersentia, 2001,
19; J.A. BARBERIS, “Réflexions sur la coutume internationale”, Annuaire Français de Droit International 1990,
19; LISSITZYN and ASOMOAH, quoted in CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE (EUROPEAN
CENTRE), The Concept of Jus Cogens in International Law, Papers and Proceedings Conference on
International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for International Peace,
1967, 96; P. CAHIER, “Changement et continuité du droit international, Cours général de droit international
public”, Recueil des Cours 1985-VI, 198; H. THIERRY, “L’évolution du droit international public, Cours general
de droit international public”, Recueil des Cours 1990-III, 59; I. DIACONU, Contribution à une étude sur les
normes impératives en droit international, Geneva, University of Geneva, 1971, 100; P. FOIS, “La funzione degli
accordi de codificazione”, in P.I. ZANARDI et al. (eds.), Le droit international à l’heure de sa codification,
Études en l’honneur de Roberto Ago, Vol. I, Milan, Giuffrè, 1987, 296-300; J. SZTUCKI, Jus Cogens and the
Vienna Convention on the Law of Treaties, Vienna, Springer, 1974, 75; B. CONFORTI, “Cours général de droit
international public”, Recueil des Cours 1988-V, 129-131; I. BROWNLIE, “Problems concerning the Unity of
International Law”, in P.I. ZANARDI et al. (eds.), Le droit international à l’heure de sa codification, Études en
l’honneur de Roberto Ago, Vol. I, Milan, Giuffrè, 1987, 154; reaffirmed in Principles of Public International
Law, Oxford, Oxford University Press, 2003, 488; C. DE VISSCHER, “Positivisme et ‘jus cogens’”, Revue
Général de Droit International Public 1971, 8; V. PAUL, “The Legal Consequences of Conflict between a Treaty
and an Imperative Norm of General International Law (Jus Cogens)”, Österreichische Zeitschrift für öffentliches
Recht 1971, 33; U.LINDERFALK, “Normative Conflict and the Fuzziness of the International Ius Cogens
Regime”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2009, 966; F. DE LONDRAS, “The
Religiosity of Jus Cogens: A Moral Case for Compliance?”, in J. REHMAN and S.C. BREAU (eds.), Religion,
Human Rights and International Law: A Critical Examination of Islamic State Practices, Leiden, Nijhoff, 2007,
247; K. KAWASAKI, “A Brief Note on the Legal Effects of Jus Cogens in International Law”, Hitotsubashi
Journal of Law and Politics 2006, 30.
93
G. ABI-SAAB, “Cours général de droit international public”, Recueil des Cours 1987-VII, 199-200; H.
KELSEN, Principles of International Law, London, Holt, Rinehart and Winston, 1967, 288, stating that general
international law is in fact comprised of customary international law since there is no treaty binding the
universality of states; see also: G.I. TUNKIN, “Is General International Law Customary Law only?”, European
Journal of International Law 1993, 534-541; M. AKEHURST, “The Hierarchy of Sources of International Law”,
British Yearbook of International Law 1974-1975, 283; C. ROZAKIS, The Concept of Jus Cogens in the Law of
Treaties, Amsterdam, North-Holland, 1976, 58; M.N. SHAW, International Law, Cambridge, Cambridge

22
principles of law.94 A last group considers that norms of jus cogens might result from treaty
law, customary international law or general principles of law.95 A very small group only
considers general principles as the basis for norms of jus cogens.96 Concluding, according to

University Press, 2003, 118; M. VIRALLY, “Réflexions sur le jus cogens”, Annuaire Français de Droit
International 1966, 25-28; L.A. ALEXIDZE, “Legal Nature of Ius Cogens in Contemporary International Law”,
Recueil des Cours 1981-III, 259; J.H.W. VERZIJL, International Law in a Historical Perspective, Part I: General
Subjects, Leiden, Sijthoff, 1968, 85; G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer,
Kluwer Law and Taxation, 1983, 163-164; A. CASSESE, International Law, Oxford, Oxford University Press,
2001, 143; T.O. ELIAS, The Modern Law of Treaties, Dobbs Ferry, N.Y., Oceana, 1974, 180; J.-P. JACQUÉ,
Éléments pour une théorie de l’acte juridique en droit international public, Paris, LGDJ, 1972, 157; E. JIMÉNEZ
DE ARÉCHAGA, “General Course of International Law”, Recueil des Cours 1978-I, 66; A.D. MCNAIR, The Law
of Treaties, Oxford, Clarendon, 1961, 215; T. MERON, “On a Hierarchy of International Human Rights”,
American Journal of International Law 1986, 17; G. MORELLI, “A proposito di norme internazionale cogenti”,
Rivista di Diritto Internazionale 1968, 110; P. DAILLIER and A. PELLET, Droit International Public, Paris,
LGDJ, 2002, 205; I.M. SINCLAIR, The Vienna Convention on the Law of Treaties, Manchester, Manchester
University Press, 1973, 130; L. GROSSE, “Racines historiques et fondements contemporains des normes
impératives (Jus cogens) dans la théorie et la pratique du droit international”, Revue de Droit International, de
Sciences Diplomatiques et Politiques 1995, 240; ANDRASSY, quoted in CARNEGIE ENDOWMENT FOR
INTERNATIONAL PEACE (EUROPEAN CENTRE), The Concept of Jus Cogens in International Law, Papers and
Proceedings Conference on International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie
Endowment for International Peace, 1967, 46; RUDA, quoted in CARNEGIE ENDOWMENT FOR INTERNATIONAL
PEACE (EUROPEAN CENTRE), The Concept of Jus Cogens in International Law, Papers and Proceedings
Conference on International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for
International Peace, 1967, 86.
94
G. DAHM, Völkerrecht, Stuttgart, Kohlhammer, 1958, 17; F.A. MANN, “The Doctrine of Jus Cogens in
International Law” in H. EHMKE et al. (eds.), Festschrift für Ulrich Scheuner zum 70 Geburtstag, Berlin,
Duncker und Humblot, 1973, 401; H. MOSLER, “Jus Cogens im Völkerrecht”, Annuaire Suisse de Droit
International 1968, 30 and 38; J.A. BARBERIS, “La liberté de traiter des États et le jus cogens”, Zeitschrift für
ausländisches Recht und Völkerrecht 1970, 44; A.L. PAULUS, “Jus Cogens in a Time of Hegemony and
Fragmentation, An Attempt at a Re-appraisal”, Nordic Journal of International Law 2005, 302.
95
P. ALSTON and B. SIMMA, “The Sources of Human Rights Law: Custom, Jus Cogens, General Principles”,
Australian Yearbook of International Law 1988-1989, 103; P. DE VISSCHER, “Cours general de droit
international public”, Recueil des Cours 1972-II, 107; A. GÓMEZ ROBLEDO, “Le ius cogens international: sa
genèse, sa nature, ses functions”, Recueil des Cours 1981-III, 103; L. HANNIKAINEN, Peremptory Norms (Jus
Cogens) in International Law: Historical Development, Criteria, Present Status, Helsinki, Lakimiesliiton
Kustannus, 1988, 216-246; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker und Humblot, 1992, 189;
K. WOLFKE, “Jus Cogens in International Law”, Polish Yearbook of International Law 1974, 151; A.
VERDROSS, “Forbidden Treaties in International Law”, American Journal of International Law 1937, 572
(customary international law and general principles); A. VERDROSS, “Jus Dispositivum and Jus Cogens in
International Law”, American Journal of International Law 1966, 61 (customary international law and treaty
law); E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Papazissis, 1974, 150; R. KOLB, “The Formal Source of Ius Cogens in Public International Law”,
Zeitschrift für öffentliches Recht 1998, 94-98; NAHLIK, quoted in CARNEGIE ENDOWMENT FOR INTERNATIONAL
PEACE (EUROPEAN CENTRE), The Concept of Jus Cogens in International Law, Papers and Proceedings
Conference on International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for
International Peace, 1967, 97; TENEKIDES, quoted in CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE
(EUROPEAN CENTRE), The Concept of Jus Cogens in International Law, Papers and Proceedings Conference on
International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for International Peace,
1967, 112.
96
H.B. REIMANN, Ius cogens im Völkerrecht, Zurich, Schulthess, 1971, 57; R. QUADRI, “Cours général de droit
international public”, Recueil des Cours 1964-III, 335; A. MIAJA DE LA MUELA, “Ius cogens y ius dispositivum”,
in X., Estudios juridico-sociales: Homenaje al Luiz Lagaz y Lacambra, Saragossa, Universidad de Santiago de
Compostella, 1960, 1141.

23
doctrine, customary international law, treaty law and general principles of law may lead to
general international norms of a jus cogens character.

F. Preliminary conclusions

28. General international law is not easily defined. However, a starting point is that it can
be determined ratione subjectorum: general international law is the law that binds the
generality of actors on the international level. This might vary from a simple majority to
nearly all or all States. From this one could inquire which sources of international law –
treaty, custom and general principles of law – could lead to this result. The jurisprudence of
the International Court of Justice, the International Law Commission in its preparatory work
on the law of treaties, State comments regarding jus cogens before and during the Vienna
Conference, and doctrine definitely consider custom as being capable to bind the generality of
international actors. Yet, custom as a source of international law leading to jus cogens norms
is equally criticized, since according to some it is based on consent, and hence binds only
States who have agreed to the customary norm. If this is the case – and I am of the opinion it
is not – how can it give rise to a norm of jus cogens binding upon all States? The same is true
for treaty law. Treaties have not acclaimed that much support for being regarded as general
international law. In fact, the case law of the International Court of Justice seems to exclude
them. However, in the framework of peremptory norms treaty rules have been regarded as
having a jus cogens character by the International Law Commission, States and doctrine. In
effect, there is no a priori reason to exclude this source giving rise to general international
law. For, if general international law is determined ratione subjectorum, treaties binding the
majority of States or all States belong to general international law. Of course, one could
contend that multilateral treaties are subject to reservations and frequently contain
denunciation clauses and that treaties are res inter alios acta. Yet, not all treaty provisions
might be subject to reservations; treaties might be denunciated, but customary international
law might be abrogated as well. And if one has the opinion that custom is based on tacit
consent, then there is not much difference between custom and treaty law. The source of
general principles of law is the least sustained source of rules leading to general international
law and jus cogens. Nonetheless, despite the fact that it is generally considered a subsidiary
source, it might well give rise to rules or principles which bind the generality of States
depending on the definition of general principles of law and their function in the international
community. Furthermore, they do not seem to be based on express or tacit consent, which
could lead to the conclusion that they are the most suitable source to give rise to peremptory
norms binding the whole international community, even States which have not consented to
the norm concerned. Concluding, at this point there is no sufficient reason to exclude any of
the three sources.

29. In the next section each source will be separately examined in order to determine which
source creates norms with a peremptory character. Special attention will be devoted to
customary international law because custom “disturbs”, in the sense that it forces scholars to
look at the foundation of the international legal order.97 The source of custom, with all the

97
B. STERN, “Custom at the Heart of International Law”, Duke Journal of Comparative & International Law
2001, 89-90.

24
controversies it causes, will lay bare some problematic aspects of jus cogens, especially in the
field of the subjective element, the consent or the legal conviction that transforms facts
(practice) into law. Peremptory norms will have an analogical process, in which a fact – the
existence of a norm of general international law – is made into a norm of jus cogens through
the recognition or acceptance of the international community of States as a whole. Unearthing
the mysteries of custom will shed some light on the related mysteries of jus cogens.
Examination of custom will also allow us to answer the question whether the concept of jus
cogens has transcended treaty law and is part of customary international law. Moreover due to
their contested nature, general principles of law will be examined in more detail. In particular
the different advanced conceptions of this source of law and its function will be examined.
With the assistance of legal theories on the concept of principles, a more profound insight will
be procured in this elusive source of international law. The examination of the different
approaches and theoretical considerations will provide the means to discover whether this
source can give rise to norms of jus cogens. Finally, the contention that jus cogens needs a
separate source of international law will be looked into.

§3. The sources of jus cogens

A. General customary international law

30. As stated above, general customary international law is customary international law
which binds the great majority of States and other subjects of the international community. As
such it is to be distinguished from specific customary international law, i.e. local, bilateral or
regional customary international law. However, apart from the number of States being bound,
general international law also differentiates from specific customary international law in its
formation. Of course both elements, State practice and a subjective element – consent or
opinio juris sive necessitatis – have to be present, but the fulfilment of the requirement of
State practice seems to be less strict for general customary law.98 In addition, in the case of

98
Especially the requirement of consistency and uniformity is less strict for general customary international
law. In the Asylum Case dealing with an alleged regional custom the Court required a constant and uniform
practice: Asylum Case (Columbia v. Peru), Judgment, ICJ Rep. 1950, 277; in the North Sea Continental Shelf
Cases when discussing the existence of a general customary norm the Court required a virtually uniform State
practice: North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of
Germany v. the Netherlands), Judgment, ICJ Rep. 1969, § 74: in the Military and Paramilitary Activities in and
against Nicaragua the Court demanded a generally consistent practice: Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986, § 186.
Another requirement of practice is that practice has to be extensive: North Sea Continental Shelf Cases (Federal
Republic of Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969,
§ 74. Whether practice is extensive in a particular instance depends on the circumstances and differs from
occasion to occasion. It is however not necessary to prove that each State has actively participated in the
practice or consciously abstained from objecting certain practice. Moreover, it is not required that a majority of
States has engaged in the practice. When a State can point to the existence of a uniform practice which is
repeated on several occasions without significant objections by other States, the practice could be qualified as
“extensive”: M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law
1974-1975, 14.
The final element is the necessary passing of time: see G.M. DANILENKO, “The Theory of Customary
International Law”, German Yearbook of International Law 1988, 30; L. FERRARI BRAVO, “Méthodes de
recherche de la coutume internationale dans la pratique des Etats”, Recueil des Cours 1985-III, 247-248. This

25
specific custom the requirement of the subjective element seems to be filled in as consent,
especially when the number of States bound by the specific customary rule is limited.99 In the
following we will however exclusively deal with general customary international law.

31. Customary international law requires two elements according to classical doctrine: a
settled State practice, the objective element, and a subjective element, whether considered as
consent or opinio juris sive necessitatis. In this respect Article 38 (1)(b) Statute of the
International Court of Justice defines customary international law as a general practice
accepted as law. However, the necessity of the subjective element, in particular conceived as
opinio juris sive necessitatis has been doubted in the literature.100 Nevertheless, although the
Court has on occasion failed to examine the presence of the subjective element (but also the
presence of sufficient State practice), it and its predecessor, have on various occasions
expressed the need for the subjective element in order to conclude to the existence of a
customary rule. For instance, in S.S. Lotus, the Permanent Court of International Justice
determined that a custom of abstaining from prosecution by non-flag States could only exist if
such abstention is based on the consciousness of States of having a duty to abstain.101 The
International Court of Justice emphasized in the North Sea Continental Shelf Cases that not
only must State conduct amount to a settled practice, but this practice 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 requiring it.102 However, it remains true that the Court in specific

does however in no event require the passing of an immense amount of time or that a custom has to date from
times immemorial, yet in order to become uniform and extensive the necessary passing of some time is required.
The requirement of customary rules dating back from times immemorial originates from Judge NEGULESCO, but
this condition is widely discarded; Dissenting Opinion Judge NEGULESCO, Jurisdiction of the European
Commission of the Danube between Galatz and Braila, Advisory Opinion, PCIJ Publ., Series B, No. 14, 104-105
and 114. SÉFERIADÈS nevertheless also requires the passing of a long period of time: S. SÉFERIADÈS, “Aperçus
sur la coutume juridique internationale et notamment son fondement”, Revue Général de Droit International
Public 1936, 139.
A more contested requirement is that the practice needs to be representative, i.e. whether the practice should
include the practice of States whose interest are specifically affected, as seems to be required by the International
Court of Justice, at least in the context of customary international law derived from treaties: North Sea
Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. the
Netherlands), Judgment, ICJ Rep. 1969, § 73. I am of the opinion that it is not required that this practice in
favour of the customary rule should be present. Even if all specially interested States, constituting a small
minority, object the customary rule, this does not entail that the customary rule will not be formed: if the other
practice is consistent and extensive a rule of general international law can be created: Declaration Judge SHI,
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, 277-278. Of course, it will
often be the case that the practice of specifically interested States will carry great weight in determining the
existence of a rule of customary international law, in the first place because it will frequently be the only practice
available. Accordingly, if the specifically interested States produce a uniform practice which does not meet
opposition of the other States, this practice can be found to be sufficient to establish a custom. Nevertheless, it
would be premature to state that the practice of specifically affected States is needed for the creation of a rule of
customary international law or that their practice will give rise to a rule of customary international law if there
are significant numbers of States objecting that practice.
99
Asylum Case (Columbia v. Peru), Judgment, ICJ Rep. 1950, 276-278; Right of Passage over Indian Territory
(Portugal v. India), Merits, Judgment, ICJ Rep. 1960, 39-40.
100
The requirement of the subjective element as a necessary element to establish customary international law
will be discussed infra, No. 55 et seq.
101
S.S. Lotus (France v. Turkey), PCIJ Publ., Series A, No. 10, 28.
102
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 77.

26
cases has not made inquiries into the separate fulfilment of the requirement of the subjective
element, and primarily looked at State practice. Despite this it will be argued that for various
reasons the subjective element is a necessary prerequisite for customary international law.

1. Practice

a. The subjects of practice

32. The departing point of the formation of customary international law is practice;103 in
effect, custom entails a repetition of a certain conduct in a particular timeframe.104 In the
following sections the focus will be on the practice of States, as the most important subjects
and law-makers of the international community. However, other subjects of international law
can also contribute to the formation of customary international law. In modern times, the
practice of international organizations of all sorts contributes more and more to the
establishment of customary rules. Of course, a distinction should be made between practice of
organs which are dominated by State representatives, and other organs. The former could best
be regarded as State practice.105 With regard to the latter as well the internal practice as the
external practice of these organs of the international organizations can lead to the creation of
customary international law. For instance, internal practice relating to administration of
particular international organization and staff matters could lead to general customary law on
these issues. Concerning external practice, the International Court of Justice has referred to
the practice of the Secretary-General as a depository of conventions,106 or the decisions of
fisheries commissions.107 Furthermore, the creation of the European Union with far-reaching
competences in economic affairs and with more and more impact in the field of foreign affairs
and international security cannot be ignored: the practice of the European Union is
distinguishable from its Member States and hence its practice towards external actors can give
rise to practice having an impact on the formation of customary rules.

33. With regard to the practice of individuals the literature is more divided.108 Although the
individual can rightly be considered as a subject of international law since he is a bearer of

103
P. WEIL, “Le droit international en quête de son identité: cours général de droit international public”, Recueil
des Cours 1992-VI, 164.
104
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 74.
105
M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1974-
1975, 11; M. SØRENSEN, “Principes de Droit International Public”, Recueil des Cours 1960-III, 38; FERRARI
BRAVO proposes – not without hesitation though – to make the distinction on the basis of the nature of the norms
contained in the constitutive documents: if they lean towards general international law, the practice should rather
be considered as practice of the member states: L. FERRARI BRAVO, “Méthodes de recherche de la coutume
internationale dans la pratique des Etats”, Recueil des Cours 1985-III, 298.
106
Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Rep. 1951, 25 and 34-36.
107
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Rep. 1974, § 58.
108
Pro: L. KOPELMANAS, “Custom as a Means of the Creation of International Law”, British Yearbook of
International Law 1937, 151; M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of
International Law 1974-75, 11 (accepting the possibility in principle, but rather skeptical whether this will occur
in reality); K. WOLFKE, “Some Persistent Controversies Regarding Customary International Law”, Netherlands
Yearbook of International Law 1993, 4; S.K. MOUTTAKI, “La coutume internationale: sujets de droit,

27
rights and duties under international law, this does not mean that he is a law-creating subject,
or in other words that the practice of individuals results in customary rules. Needless to say,
the practice of individuals might have an influence on State practice, as might have the
lobbying of non-governmental organizations and transnational companies. Nevertheless,
while this may influence the policy and the subsequent practice of States or an international
organization, in the end it will be the latter’s practice which will count. Similarly, the
contention of WOLFKE that individual fisherman can contribute to the formation of customary
fishing rights109 should be refuted. Rather, it will be the omission to react on the side of the
coastal State and/or the assertion on the side of the flag State that will create the customary
rule.

b. What constitutes State practice?

i. Physical conduct versus verbal acts

34. Besides the question of whose practice counts, the question arises which practice could
be qualified as law creating-practice? Some have argued that only physical conduct is State
practice, while declarations, statements and claims are to be considered as evidence of the
subjective element.110 While the distinction has provoked criticism in the past, the difference
between “real” practice and mere verbal acts has arisen anew by the introduction of the
concept of “New Customary International Law”111 or “Modern Customary International
Law”, which considers the existence of the subjective element more important that the
presence of a sufficient State practice and in this respect relies extensively on treaties, United
Nations General Assembly Resolutions, declarations and other verbal acts to prove the
customary nature of human rights.112 Critics of the concept of “New Customary International

consentement et formation de la norme coutumière”, Ottowa Law Review 2003-2004, 269; contra: J.A. BABERIS,
“Réflexions sur la coutume internationale”, Annuaire Français de Droit International 1990, 35; G.M.
DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law 1988, 21;
INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final
Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 727.
109
K. WOLFKE, “Some Persistent Controversies Regarding Customary International Law”, Netherlands
Yearbook of International Law 1993, 4.
110
A. D’AMATO, The Concept of Custom in International Law, Ithaca, Cornell University Press, 1971, 88; A.E.
ROBERTS, “Traditional and Modern Approaches to Customary International Law: A Reconciliation”, American
Journal of International Law 2001, 757; a more nuanced approach is taken by THIRLWAY: only statements made
in connection to a specific situation count as State practice, not statement in abstracto: H.W.A. THIRLWAY,
International Customary Law and Codification: An Examination of the Continuing Role of Custom in the
Present Period of Codification of International Law, Leiden, Sijthoff, 1972, 76 and 88.
111
The concept of “New Customary International Law” was introduced by BRADLEY and GOLDSMITH: C.A.
BRADLEY and J.L. GOLDSMITH, “Customary International Law As Federal Common Law: A Critique of the
Modern Position”, Harvard law Review 1997, 838-842 and subsequently developed in C.A. BRADLEY and J.L.
GOLDSMITH, “The Current Illegitimacy of International Human Rights Litigation”, Fordham Law Review 1997,
327-330.
112
For representatives of this new customary international law: see E. JIMÉNEZ DE ARECHAGA, “The Classical
Sources of International Law Revisited: Discussion”, in A. CASSESE and J.H.H. WEILER (eds.), Change and
Stability in International Law-Making, Berlin, de Gruyter, 1988, 48-50; J.I. CHARNEY, “Universal International
Law”, American Journal of International Law 1993, 546; L.B. SOHN, “‘Generally Accepted’ International
Rules”, Washington Law Review 1986, 1074; D. FIDLER, “Challenging the Classical Concept of Custom”,
German Yearbook of International Law 1996, 216-231; for a more nuanced position: O. SCHACHTER,

28
Law” often point to the fact that it is not based on general and consistent State (physical)
practice, but merely on non-binding verbiage, which is even often of aspirational nature.113

35. The scope of State practice is also debated in the theory of GOLDSMITH and POSNER
which explains the emergence of customary international law from self-interested policies of
nation-States on the international plane, based on game theory.114 The theory dispenses with
the requirement of the subjective element and introduces rational self-interest to explain why
nations behave in a certain way. The behaviour of States can be brought back to four different
behavioural logics. The first one is coincidence of interests, where behavioural regularity
results from the private advantage that each States obtains from the same action. The second
logic is coercion, where a more powerful State forces other States to perform certain acts that
they would not perform if not coerced. The third logic is genuine cooperation, modelled as a
bilateral prisoners’ dilemma in which both States will have high advantages in the long term
as long as both States are cooperating and not tempted to cheat in the short term. The last
behavioural logic arises when States face and solve bilateral coordination problems: if States
coordinate on identical or symmetrical actions, they receive higher payoffs than if they not
coordinate.115 As may be clear from the above short synthesis of the theory what States
actually do, is what counts in the formation of customary international law, not what States
are declaring or stating what customary international law is or should be.116

36. I submit that State practice should be as wide as possible and include also non-physical
acts like written or oral statements, diplomatic correspondence between States, national
legislation and national judicial decisions. There are as such no a priori reasons to disqualify
certain types of conduct as practice. For, only to regard material conduct as real practice
would lead to the conclusion that a number of accepted rules of customary international law
are not part of customary international law because of lack of physical practice. For instance,

“International Law in Theory and Practice: General Course in Public International Law”, Recueil des Cours
1982-V, 333-338; the theoretical underpinning of this concept can be found in: F.L. KIRGIS, JR., “Custom on a
Sliding Scale”, American Journal of International Law 1987, 146-151; J. TASIOULAS, “In Defence of Relative
Normativity: Communitarian Values and the Nicaragua Case”, Oxford Journal of Legal Studies 1996, 85-128.
113
J. PATRICK KELLY, “The Twilight of Customary International Law”, Virginia Journal of International Law
1999-2000, 485-486; D. BODANSKY, “Customary (and not so Customary) International Law”, Indiana Journal of
Global Legal Studies 1995-1996, 111-112. A much quoted sentence in this regard is that of Sir JENNINGS: “Most
of what we perversely persist in calling customary international law is not only not customary law; it does not
even faintly resemble it.” R.Y. JENNINGS, “The Identification of International Law”, in B. CHENG (ed.),
International Law Teaching and Practice, London, Stevens, 1982, 5.
114
J.L. GOLDSMITH and E.A. POSNER, “A Theory of Customary International Law”, University of Chicago Law
Review 1999, 1113; J.L. GOLDSMITH and E.A. POSNER, “Further Thoughts on Customary International Law”,
Michigan Journal of International Law 2001, 191; J.L. GOLDSMITH and E.A. POSNER, “Understanding the
Resemblance between Modern and Traditional Customary International Law”, Virginia Journal of International
Law 2000, 639.
115
J.L. GOLDSMITH and E.A. POSNER, “A Theory of Customary International Law”, University of Chicago Law
Review 1999, 1114-1115.
116
Admittedly, it has to be noted that both authors on the one hand seem to include policy statements, national
legislation and diplomatic correspondence as the least controversial sources of State practice: Ibid., 1117; on the
other hand, the examples they give to underpin their new theory of customary international law, are instances of
physical conduct of States. In general it can be concluded that the result of the game theory approach to
customary international law is to favour physical State practice as more important than statements, since these
most frequently contain the element of opinio juris sive necessitatis, which is dispensed with under the theory.

29
it would be difficult to establish in customary law the width of the territorial sea without
having recourse to national legislation. Furthermore, the law of sovereign and diplomatic
immunities has been partially built upon national legislation and national case law. The same
would be true for prize law, in which the decisions of municipal prize courts are more
instrumental than the actual taking of prize, since they determined whether the material
conduct (the taking as prize) was lawful. In addition, customary rules prohibiting certain
conduct cannot be established by material practice respecting the rule: if States abstain, some
other forms of practice are necessary to qualify that abstention which typically will be in the
form of statements; moreover if only material conduct would count as State practice,
disproportionate weight would be attached to the violations of the prohibition. Consequently,
there are compelling reasons to conclude that any conduct of States in their international legal
relations could be regarded as practice which potentially can give rise to a rule of customary
international law.117 Which practice between States is regarded as conducted in their
international legal relations and not their domestic jurisdiction is dependent on the evolution
of the international legal system.118 Since international law increasingly permeates the
national jurisdiction of States diminishing the domaine réservé, more and more practice could
result in the formation of a rule of customary international law.

37. With regard to statements, the Permanent Court of International Justice and
International Court of Justice have on many occasions equated them with State practice.119 In
S.S. Lotus the Court mentioned the absence of protests by States against other States,
extending their territoriality principle. In the Asylum Case the International Court of Justice
considered the actual exercise of diplomatic asylum and the official views expressed on
various occasions as State practice. In the Rights of United States Nationals in Morocco Case,
the Court had no difficulty in taking evidence from diplomatic correspondence and
conference records as proof of an international custom. In the Fisheries Jurisdiction case,
proposals by Iceland, a resolution adopted during the 1958 Geneva Conference on the Law of
the Sea, an amendment and voting during conferences were accepted as practice. In Military
and Paramilitary Activities in and against Nicaragua the Court deduced the subjective
element in the form of opinio juris sive necessitatis from United Nations General Assembly
resolutions. But since it is impossible to read the minds of legal persons such as States, the
subjective element must be deduced from the practice of States.120 Similarly, in the Armed
Activities on the Territory of the Congo case the Court established the customary nature of the

117
G.M. DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law
1988, 21; INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL)
LAW, “Final Report of the Committee: Statement of Principles Applicable to the Formation of General
Customary International Law”, ILA Rep. 2000, 724-725 and 728-729.
118
Nationality Decrees in Tunis and Morocco, Advisory Opinion, PCIJ Publ., Series B, No. 4, 24.
119
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 23; Asylum Case (Columbia v. Peru),
Judgment, ICJ Rep. 1950, 277; Rights of United States Nationals in Morocco (France v. United States of
America), Judgment, ICJ Rep. 1952, 200; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment,
ICJ Rep. 1974, §§ 55-58; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, ICJ Rep. 1986, §§ 183-207; Armed Activities on the Territory of the
Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ Rep. 2005, § 244.
120
On the relation between practice and opinio juris, infra, No. 72 et seq.

30
principle of permanent sovereignty over natural resources on the basis of a number of United
Nations General Assembly resolutions.121

38. In conclusion, verbal acts count equally as State practice as physical acts. These
statements could be very specific, for example an assertion of a customary rule before the
International Court of Justice, or abstract declarations made for instance during conferences or
before the United Nations General Assembly. One might however argue that physical conduct
carries greater weight than mere verbal acts. This might be a true assertion in most cases,
nonetheless, in particular circumstances verbal acts might carry greater weight. For example,
a verbal statement by a great majority of States of the international community probably has
more weight than a limited number of contrary physical acts. On the other hand, it is unlikely
that a customary rule will have emerged when statements are contradicted by significant
contrary physical acts. Yet, the importance of statements, declarations and protest are not to
be underestimated: it is a tool for the poorer and weaker countries to effectively contribute to
the formation of customary international law, without imposing too heavy a burden on them.
By the inclusion of verbal acts in State practice the distinction between “Traditional
Customary Law” and “Modern Customary Law” is easily overcome. “Modern Customary
Law” is as customary law as “Traditional Customary Law”, the only difference being that it is
focusing on different forms of State practice – statement, resolutions, national law122 – than
“Traditional” customary law, although in the more traditional field of fisheries rights, the
International Court of Justice equally focused on declarations during a conference, a
resolution and a tabled amendment.123 Furthermore the distinction between “Traditional” and
“Modern” customary international law will be more blurred if I address the role of national
law, omissions, treaties and United Nations General Assembly resolutions in the formation of
customary international law.

ii. Omissions

39. It is well-established that not only acts but also omissions can constitute State
practice.124 For example, in S.S. Lotus the Permanent Court of International Justice examined

121
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ
Rep. 2005, § 244.
122
In fact, A.E. ROBERTS while keeping the distinction between “Traditional” and “Modern” customary Law,
argues that the concept of State practice should also include intrastate actions instead of solely interstate actions:
A.E. ROBERTS, “Traditional and Modern Approaches to Customary International Law”, American Journal of
International Law 2001, 777; however, intrastate actions, for example national legislation and national judicial
decisions, have always played a role in State practice.
123
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Rep. 1974, §§ 55-58.
124
INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW,
“Final Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 726-727; M.H. MENDELSON, “The Formation of Customary International
Law”, Recueil des Cours 1998-II, 207-209; J. TAMMES, Internationaal Publiekrecht, Amsterdam, Bohn, 1973,
12; M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1977, 10;
T.S. RAMA RAO, “International Custom”, Indian Journal of International Law 1979, 518; S. SÉFERIADÈS,
“Aperçus sur la coutume juridique internationale et notamment son fondement”, Revue Général de Droit
International Public 1936, 143; K. SKUBISZEWSKI, “Elements of Custom and The Hague Court”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1971, 813-814; G.M. DANILENKO, “The Theory of Customary
International Law”, German Yearbook of International Law 1988, 28-29; K. WOLFKE, “Some Persistent

31
if the omission of certain States not to prosecute in case of collision on the High Seas
warranted the conclusion of a customary rule of prosecution by the flag State, but responded
negatively since there was no evidence of the presence of the subjective element.125 This
demonstrates the main problem: how to determine that a State is not performing a certain
conduct because of a legal obligation? Firstly, it has to be noted that omissions by one State
are often accompanied by actions of another State. For example, if a State does not react
against the crossing of foreign police forces over its territory by another State, both the
crossing and the subsequent omission reinforce each other and the subjective element can
more easily be deduced. Secondly, actions and omission are frequently two sides of the same
coin: to prove a rule of customary international law one can have recourse to State practice in
the form of omissions or State practice consisting of actions. For instance, instead of focusing
on omissions, France could have focused on the practice of flag States prosecuting for
collisions on the High Seas. The problem remains nonetheless acute in cases of rules of
customary international law prohibiting certain conduct. Is the inaction of States a result of a
belief of being bound by the prohibition, or other reasons? Does the non-recourse to the use of
force originate from a legal conviction or the military weakness of a State? Does the fact that
a lot of States do not torture their citizens count as practice from which the subjective element
can be deduced? It is submitted that it does if States on occasion have expressed their view of
the legally binding nature of the prohibition. Otherwise, actions going against the customary
prohibition and hence violating the rule would have disproportionate weight. Consequently,
in the case of a customary prohibition, consistent omissions will strengthen the rule if on
occasion States have expressed the legal nature of the prohibition.

iii. National law

40. National law refers here to the acts of the legislature, the executive and the judicial
branch, whether from the central government or of the territorial governmental bodies, the
latter only if they are entitled to engage in international legal relations. In some federal States,
the States have wide-ranging powers to conduct international policy with regard to their
competences. As a result, their activities will constitute State practice. For all other territorial
decentralized governmental entities the rule is that their practice will only constitute State
practice if it is adopted by the State or the conduct is done on behalf of the State.126 For
instance, if the central government orders communal authorities to tow away wrongly parked
cars of diplomatic staff or defends such policy of a communal authority in a response to a
protest, the conduct will constitute genuine State practice.

41. Part of national law will be comprised of verbal acts, for instance national legislation by
the legislature or executive and court decisions. In this respect, the same applies as for other

Controversies regarding Customary International Law”, Netherlands Yearbook of International Law 1993, 3;
J.A. BARBERIS, “Réflexions sur la Coutume Internationale”, Annuaire Français de Droit International 1990, 22;
G.I. TUNKIN, “Remarks on the Juridical Nature of Customary Norms of International Law”, California Law
Review 1961, 421.
125
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 28.
126
INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW,
“Final Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 727-728.

32
verbal acts. With regard to national legislation, it will only be regarded as State practice if the
legislation will have an impact on international legal relations.127 For example, many
countries in the world will have legislation prohibiting speeding, but this does not mean that
there is a customary international law rule prohibiting it. Of course, as has been mentioned
above, international law increasingly intrudes the domaine réservé of States: while in the past
human rights and environmental law belonged to the domestic jurisdiction of States,
contemporary international law has breached the barriers of the domaine réservé and national
legislation dealing with these issues will have an impact on the formation of customary
international law. For instance, even States with a terrible torture record often have laws
prohibiting torture. Consequently, even these States are contributing to the formation of a
customary prohibition against torture. The role of national courts is however more limited.
Court decisions normally interpret existing national legislation dealing with international
issues and international law, thus clarifying already existing national legislation. Yet, in
interpreting national legislation and examining the existence of a particular customary
international law rule, they contribute to the more exact formulation of the customary rule.
However, since a customary norm is always in evolution, the more precise formulation of
such a norm will inevitably have an impact on the formation of the rule. Lastly, the executive
plays an important role in the creation of State practice. Not only is it the executive which acts
on the international plane, but moreover on the domestic plane, it has often a regulatory power
and its organs are involved in physical conduct which impact the international legal relations.
In this respect, one has to look not only at the department responsible for foreign affairs, but
also to other departments like the department of defence (e.g. military codes) or the
department for internal affairs (e.g. the expulsion of aliens). The importance of national law
for the formation of customary law has been accepted by the Permanent Court of International
Justice as well as the International Court of Justice;128 in the S.S. Lotus case the Permanent
Court examined various national legislations and court decisions to determine if Turkey could
start criminal proceedings against an officer of a French ship which caused an accident on the
High Seas. Furthermore, the International Court of Justice referred to national legislation and
decisions in order to come to the conclusion that in case of naturalization States required a
genuine link.129 In the Arrest Warrant of 11 April 2000, the Court looked into national
legislation and case law to conclude that Ministers of Foreign Affairs had immunity from
criminal jurisdiction.130

127
J.A. BARBERIS, “Réflexions sur la Coutume Internationale”, Annuaire Français de Droit International 1990,
21; L. KOPELMANAS, “Custom as a Means of the Creation of International Law”, British Yearbook of
International Law 1937, 148; L. FERRARI BRAVO, “Méthodes de recherche de la coutume internationale dans la
pratique des Etats”, Recueil des Cours 1985-III, 280.
128
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 20; see also: Barcelona Traction Light
and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ. Rep. 1970, § 70, where the
Court held that the nationality of companies is determined by analogy to the nationality of individuals.
Subsequently, the Court determined that practice and international instruments established that a company has
the nationality of the country where it has its siège social or where it is incorporated. Although it is not clear
whether the Court had equally national legislation in mind when it referred to practice, it has to be noted that the
nationality of individuals is determined by national laws.
129
Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgment, ICJ Rep. 1955, 21-22.
130
Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ Rep. 2002, §
58.

33
 iv. Treaties

42. Treaties have an impact on customary international law,131 but the precise role of
conventions on customary international law is still very complex. A main starting point of
analysis is however offered by the distinction between treaties codifying customary
international law and treaties embodying rules which are a progressive development of
international law.132 Yet, this distinction is in reality not clear-cut. Firstly, the practice of the
International Law Commission is to develop treaties which contain rules codifying customary
international law as well as rules constituting progressive development of international law.133
The Vienna Convention on the Law of Treaties of 1969 itself is an example: while most
provisions could be deemed to lay down customary international law, some, notably Article
53 of the Convention, were progressive developments. Secondly, even a purely codification
convention alters customary international law: rules of customary law are often not exactly
clear and are ambiguous in their application; if they are however written down, a certain
choice of formulation of the customary rule is made which might deviate from the existing
vague customary rule.134 Thirdly, what for one State is a codification of customary
international law, is for another State a progressive development.

43. The influence of treaties codifying customary international law is at first sight rather
meagre. As such, these conventions merely put down in writing the already existing
customary rule. All the same, as previously mentioned, by framing customary rules in treaty
texts, the rules undergo minor changes, which could lead to subsequent (minor) changes in
State practice.
Furthermore, what is the value of a clause claiming that the rules in a convention are
customary international law? As such, the clause only binds the States party to the convention
and hence it could be argued that it only reflects the viewpoint of these States concerning
customary international law, which could serve as evidence that the rules in the convention
are indeed of customary nature.135 Consequently, as more States become party to the
convention, the evidence becomes more persuasive, but other evidence could point to the
contrary. Another issue relating to conventions codifying international law is the problem of
reservations. Does the permissibility of reservations lead to the conclusion that the rules in the

131
E. JIMÉNEZ DE ARÉCHAGA, “General Course in International Law”, Recueil des Cours 1978-I, 13; P. REUTER,
“Principes de droit international public”, Recueil des Cours 1961-II, 484; K. WOLFKE, “Some Persistent
Controversies regarding Customary International Law”, Netherlands Yearbook of International Law 1993, 9;
R.R. BAXTER, “Treaties and Custom”, Recueil des Cours 1970-I, 31; M. BOS, “The Identification of Custom in
International Law”, German Yearbook of International Law 1982, 23-25; M.E. VILLIGER, Customary
International Law and Treaties, Dordrecht, Nijhoff, 1985, 237 et seq.
132
See: R.R. BAXTER, “Treaties and Custom”, Recueil des Cours 1970-I, 36 and 57; M.E. VILLIGER, Customary
International Law and Treaties, Dordrecht, Nijhoff, 1985, 139 and 183.
133
R.R. BAXTER, “Treaties and Custom”, Recueil des Cours 1970-I, 40; M.E. VILLIGER, Customary
International Law and Treaties, Dordrecht, Nijhoff, 1985, 120-121.
134
Dissenting Opinion Judge SØRENSEN, North Sea Continental Shelf Cases (Federal Republic of Germany v.
Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 242-243; M.E. VILLIGER,
Customary International Law and Treaties, Dordrecht, Nijhoff, 1985, 123; R.Y. JENNINGS, “The Progressive
Development of International Law and Its Codification”, British Yearbook of International Law 1947, 305; H.
MOSLER, The International Society as a Legal Community, Alphen aan den Rijn, Sijthoff, 1980, 75.
135
R.R. BAXTER, “Treaties and Custom”, Recueil des Cours 1970-I, 43; M.H. MENDELSON, “The Formation of
Customary International Law”, Recueil des Cours 1998-II, 298-299; A.M. WEISBURD, “Customary International
Law: The Problem of Treaties”, Vanderbilt Journal of Transnational Law 1988, 23.

34
convention are not customary? This will not be the case, despite the contrary ruling of the
International Court of Justice in the North Sea Continental Shelf Cases in which it held that
Article 6 of the Geneva Convention on the Continental Shelf of 1958 did not constitute
customary law since reservations were permitted.136 This aspect of the decision has rightly
been vigorously criticized.137 Indeed, reservations concern the treaty relations between the
State parties and have no bearing in the field of customary international law, which does not
allow for reservations to its rules. Moreover, the reasons why the possibility of reservations is
inserted in a convention codifying customary international law might be purely diplomatic or
to appease for example a State which is consistently objecting particular rules of customary
international law contained in the convention, but agreeing with the other rules of the
convention. The same could be said for provisions for denunciation or revision: as such they
only concern the treaty relationship and do not impact the underlying rule of customary
international law.138 A last remark deals with the importance of a low participation rate in a
convention codifying international law. This does not necessarily negatively impact the
alleged customary nature of the treaty rules, since the fact that the rules are customary might
be the exact reason why States refrain from ratifying the convention. Another reason could be
that the convention provides for an obligatory dispute settlement mechanism. In any event, the
ratification of conventions is generally a time-consuming process, so that the absence of
ratifications in the early years of the convention does not constitute evidence that the rules in
the convention are not customary international law. On the other hand, if in the long term the
treaty does not receive wide participation or if the treaty is widely ratified, but subsequently
suffers from withdrawals, this might be evidence that the rules are no longer regarded as
customary, if other forms of State practice confirm this.

44. Treaties, especially multilateral treaties can equally influence the formation of new
rules of customary international law. Firstly, a multilateral treaty rule might be the historic or
material source of a new rule of customary international law.139 It has to be noted that the
practice amongst State parties does not count, since the basis of that practice will be the
treaty, and will not have the intention to create customary international law.140 State practice

136
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 63.
137
Dissenting Opinion Judge MORELLI, North Sea Continental Shelf Cases (Federal Republic of Germany v.
Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 197-198; Dissenting
Opinion Judge LACHS, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal
Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 223-225; Dissenting Opinion Judge
SØRENSEN, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of
Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 248; R.R. BAXTER, “Treaties and Custom”, Recueil des
Cours 1970-I, 50; INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY
(GENERAL) LAW, “Final Report of the Committee: Statement of Principles Applicable to the Formation of
General Customary International Law”, ILA Rep. 2000, 755-756.
138
Article 43 Vienna Convention on the Law of Treaties (1969); R.R. BAXTER, “Treaties and Custom”, Recueil
des Cours 1970-I, 51-52.
139
INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW,
“Final Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 757.
140
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, §§ 75-76; M.E. VILLIGER, Customary International Law and
Treaties, Dordrecht, Nijhoff, 1985, 11; G.M. DANILENKO, “The Theory of Customary International Law”,

35
of parties to the convention towards third States will however count as State practice for the
formation of the customary rule. Furthermore, a rule in a multilateral treaty might be taken
over by States not party to the treaty which conform their practice to the treaty rule. If this
practice is accompanied by the subjective element, a new customary rule can emerge.
Nevertheless, it has to be pointed out that the International Court of Justice has indicated that
although treaty norms can become part of customary international law, it is not lightly to be
regarded as having been attained.141 Moreover, in a rather Delphic manner the Court has
stated that the treaty rule in question should be of a “fundamentally norm-creating
character”.142 Yet, it has been pointed out that every rule in a sense is norm-creating. Rather,
what the Court probably intended, was that the rule in question should be of sufficient
generality and abstractness so that it could be applied in indeterminate number of
situations.143 For example, a rule in a multilateral treaty reducing the number of conventional
weapons in a particular geographical area will be too individual to become a rule of
customary international law.

45. While the preceding example concerned the formation of a rule of general customary
international law on the basis of a treaty provision, a special problem arises if the
conventional norm actually has become a rule of general customary international law. The
International Court of Justice has held in the Military and Paramilitary Activities in and
against Nicaragua, that a particular rule can simultaneous be a rule of customary international
law and a treaty provision.144 But what about the practice between the parties to the treaty:
will this practice count in the strengthening of the established customary rule or remain
practice based on the treaty provisions? Moreover, what if in the meantime the treaty which
was at the origin of the formation of the customary rule has almost universally been ratified?
The Court has rightly stated that conventional law does not supersede identical customary
international law, but this was in the hypothesis that an existing customary rule was
incorporated in a treaty text,145 as will be the case with regard to codification, but this is
different from the situation at hand. Nonetheless, it can be held that when a treaty rule and a
customary rule coexist, the treaty rule will have precedence and practice will in the first place

German Yearbook of International Law 1988, 38; A.M. WEISBURD, “Customary International Law: The Problem
of Treaties”, Vanderbilt Journal of Transnational Law 1988, 24.
141
North Sea Continental Shelf Cases ((Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 71. The formation of customary international law on the basis of
a multilateral treaty has also been recognized by the Nuremberg Tribunal concerning the Hague Convention IV
on Land Warfare: Judgment of the International Military Tribunal for the Trial of Major War Criminals (1946),
UK Command Paper Cmd. 6964, 65; concerning international humanitarian law in general: Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, §§ 74-82; concerning the definition of
belligerent occupation see: Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, ICJ Rep. 2004, § 78, reaffirmed in Armed Activities on the Territory of the Congo
(Democratic Republic of Congo v. Uganda), Judgment, ICJ Rep. 2005, § 172.
142
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 72.
143
M.E. VILLIGER, Customary International Law and Treaties, Dordrecht, Nijhoff, 1985, 189-191; K. MAREK,
“Le problème des sources du droit international dans l’Arrêt sur le Plateau Continental de la Mer du Nord”,
Revue Belge de Droit International 1970, 58.
144
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, ICJ Rep. 1984, § 73; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986, § 178.
145
Ibid., § 177.

36
be based on the treaty provisions as such.146 This does not entail the end of the customary rule
however. The rule continues to exist in the background and will not fall into desuetude if
States parties to the convention continue to have the necessary subjective element which
might be expressed on occasion.147

46. A second manner in which treaties can influence the formation of customary
international law is by “crystallization”. The International Court of Justice has indeed held
that such a process of “crystallization” is possible,148 but it is not exactly clear what the
process of “crystallization” entails. “Crystallization” is a scientific term in chemistry to
describe the transformation of gases or fluids into solid material.149 In the field of
international law, “crystallization” concerns the establishing of a customary rule by the
negotiating and drafting of a treaty.150 In the North Sea Continental Shelf Cases the
Netherlands and Denmark referred to the work of the International Law Commission, the
reaction of governments to that work, the proceedings at the Geneva Conventions, all together
leading to the crystallization of Article 6 by the adoption by the conference of the Geneva
Convention of 1958.151 However, it is doubtful if all this can lead to the emergence of a new
customary rule by crystallization. Firstly, all the stages referred to by the Netherlands and
Denmark relate to the treaty-making process and not to the formation of customary
international law. First of all, the work of the International Law Commission does not qualify
as State practice, but as the teachings of highly qualified publicists.152 Second, the reactions of
governments to that work and their actions and statements during the Conference are State
practice if it relates to customary international law and not to the treaty as such. It is my
opinion that the Court had to look into the content of the actions and statements of the
government, rather than to use a fashionable term like “crystallization”. In sum, it will not be
the convention itself which will “crystallize” customary international law, but rather relevant
State practice surrounding the treaty-making process, for instances statements concerning the
customary nature of the rule, application of certain provisions before the finalisation of the
treaty, etc. that will lead to the emergence of a customary norm.

47. Lastly, the International Court of Justice has accepted that treaties can give rise to
customary international law rules on their own impact. Indeed, resuming the argument of the

146
G.M. DANILENKO, Law-Making in the International Community, Dordrecht, Nijhoff, 1993, 140.
147
G.M. DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law
1988, 38.
148
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 63.
149
M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des Cours 1998-II, 304-305,
also stating that the analogy to chemistry might not be entirely correct: in chemistry the commencement of
crystallization can be rather accurately established, while this is normally not the case with an emergent
customary norm.
150
INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final
Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 760.
151
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 61.
152
Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Rep. 1997, § 52, where the Court states
that the conditions of Article 33 Draft Articles on Responsibility of States for Internationally Wrongful Acts
reflect (emphasis added) customary international law, indicating that the work of the International Law
Commission is not considered to be part of State practice.

37
Netherlands and Denmark, it held that “…nevertheless such a rule has come into being since
the Convention, partly because of its own impact, partly on the basis of subsequent
practice…”.153 The Court also clearly established that “…it might be that, even without the
passage of any considerable period of time, a very widespread and representative participation
in the convention might suffice of itself, provided it included that of States whose interests
were specifically affected.”154 This statement is very questionable. First, the widespread and
representative participation in the convention only relates to the treaty regime and does not
relate to customary international law. What will be necessary is proof that States consider the
rules in the convention as not merely conventional rules but also as rules of customary
international law,155 and this proof will need additional State practice. Second, the condition
that States whose interests are specially affected should participate is problematic. It will in
the first place not be clear which States are specifically affected, for instance in the case of
human rights conventions. But, equally in the law of the sea, this requirement is troublesome.
Landlocked States may have important commercial fleets; are the interest of States with a
huge EEZ or continental shelf more important than those of States with a small EEZ or
continental Shelf? Furthermore, the condition disregards the principle of pacta tertiis nec
nocent nec prosunt since no State can be bound by a conventional rule if it is not a party to the
treaty, on the sole basis of widespread participation of States to that treaty.156 For instance, the
United States is not bound by the rules of the Convention on the Rights of the Child qua
treaty law or qua customary international law because of its almost universal acceptance. It is
only when there exists practice outside the convention that a rule of customary international
law will emerge binding the non-party States. Moreover, the dictum runs against the principle
of sovereign equality of States by attaching more weight to the practice of specially affected
States.157 In the reasoning of the Court a very widespread and representative participation in a
convention by States whose interest are not specifically affected – but whose interest might be
affected to a lesser degree – would not suffice, although the States whose interests are
specifically affected have not objected to the rule. Therefore, a convention cannot give rise to
the emergence of a customary rule on its own impact in itself. What will be needed is State
practice indicating that the conventional rules are equally regarded as customary rules.
Furthermore, the requirement of specifically affected States should be discarded: what should
instead be examined is the widespread and consistent practice of States in order to conclude to
the emergence of a general customary international law rule.

153
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, §§ 70-74.
154
Ibid., § 73.
155
INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final
Report of the Committee: Statement of Principles Applicable to the Formation of General Customary
International Law”, ILA Rep. 2000, 763.
156
K. MAREK, “Le problème des sources du droit international dans l’Arrêt sur le Plateau Continental de la Mer
du Nord”, Revue Belge de Droit International 1970, 62-63.
157
Declaration Judge SHI, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996,
278; equally AKEHURST is rather critical to this dictum of the Court: M. AKEHURST “Custom as a Source of
Jnternational Law”, British Yearbook of International Law 1974-1975, 22.

38
 v. Resolutions of international organisations, in particular United Nations General
Assembly Resolutions

48. The issue of the influence of resolutions of international organisations, and more
specific those of the United Nations General Assembly, is subject to debate. Above all, such
resolutions are generally not binding on the Member States of the international organisation,
but only recommendatory pursuant to Article 13 Charter of the United Nations. Consequently,
how can they contribute to customary international law if they have no obligatory value?
Moreover, most resolutions are not concerned with customary international law, but lay down
political aspirations or value judgements concerning events in the international community.
Nevertheless, I submit that resolutions play a role in customary international law.

49. First, nothing prohibits resolutions that reiterate the existence of certain rules of
customary international law. However, the formulation of a customary rule in a written text
necessarily brings changes in the form of concretizations to the particular rule. Furthermore,
the rule might be accepted as general customary international law, but not by all States, since
general international law is not universally applicable.158 As a result, the boundary line
between the confirmation of an existing rule of customary international law and the formation
of a rule of customary international law is blurred, and the adoption of a resolution containing
existing customary international law, will almost always similarly raise the question of the
formation of customary international law. Despite this, the voting on and adoption of
resolutions stating what the rules of customary international law are, constitute State practice
strengthening the existence of a particular rule of customary international law and might give
evidence of the subjective element.159 Nevertheless, one should carefully assess whether the
rule in the resolution is indeed existing customary international law even if a majority of
States vote in favour of the resolution. It is important to inquiry why States have voted in
favour. There could be political reasons for voting in favour; the resolution might have
contained other clauses which were compelling a State to vote in favour although it did not
accept the customary nature of a rule laid down in another clause. Therefore, the inquiry
should not halt at the voting on the resolution in toto, but also look at the voting paragraph by
paragraph, at statements made by States concerning the resolution, and other factors.160 On
the contrary, if no such factors are present, it has to be assumed that States were indeed
accepting the existence of the customary rule contained in the resolution. Even more care
should be taken with resolutions adopted by consensus or resolutions adopted without a vote
absent statement and other factors, since from these resolutions it will not be clear whether
States consider them to lay down customary rules or just accept them as a compromise.

158
Supra, No. 13.
159
M. SØRENSEN, “Principe de droit international public”, Recueil des Cours 1960-III, 99; INTERNATIONAL LAW
ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final Report of the
Committee: Statement of Principles Applicable to the Formation of General Customary International Law”, ILA
Rep. 2000, 769; M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des Cours 1998-
II, 360-361; D. SHELTON, “International Law and ‘Relative Normativity’”, in M.D. EVANS (ed.), International
Law, Oxford, Oxford University Press, 2003, 168.
160
M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1977, 6-7;
E. JIMÉNEZ DE ARÉCHAGA, “General Course in Public International Law”, Recueil des Cours 1978-I, 31; B.
SLOAN, “General Assembly Resolutions Revisited (Forty Years Later)”, British Yearbook of International Law
1988, 125-139.

39
50. Concerning the formation of customary international law by resolutions, there is no
doubt that a resolution could constitute in retrospect the historic source of a new customary
rule. Indeed, the adoption of a resolution even with aspirational language might trigger State
practice and the emanation of the subjective element. For instance, it could be argued that the
Universal Declaration of Human Rights was the starting point of the formation of customary
rules in the field of human rights, despite its aspirational character.161 More problematic is the
possibility of the formation of customary rules (partially) on the basis of resolutions. It is
submitted that resolutions can constitute a part of the process of law-making. The
counterargument that this is not possible because resolutions are only recommendatory fails
since no form of State practice is binding as such. Only the aggregate of State practice
fulfilling certain requirements and the necessary subjective element could give rise to a rule of
customary international law. Furthermore, the adoption of a resolution as a building block for
a new rule of customary international law does not confer a binding nature on resolutions. It
will be the total amount of State practice and the subjective element which will lead to the
formation of a rule of customary international law. Of course, even more care will have to be
taken in assessing whether the resolutions have played a role in the creation of a new rule of
customary international law. This possibility is in any event accepted by the International
Court of Justice.162 In its advisory opinion on Namibia, it had no difficulty in stating that
General Assembly resolution 1514 (XV) containing the Declaration on the Granting of
Independence to Colonial Countries and Peoples was an important stage in the development
of international law with regard to non-self-governing territories.163 In the advisory opinion
on the Legality of the Threat or Use of Nuclear Weapons it examined whether the adoption of
various General Assembly resolution has led to the prohibition of using nuclear weapons. It
concluded that:

“the adoption each year by the General Assembly, by a large majority, of

resolutions recalling the content of resolution 1653 (XVI), and requesting the
member States to conclude a convention prohibiting the use of nuclear weapons in
any circumstance, reveals the desire of a very large section of the international
community to take, by a specific and express prohibition of the use of nuclear
weapons, a significant step forward along the road to complete nuclear
disarmament. The emergence, as lex lata, of a customary rule specifically
prohibiting the use of nuclear weapons as such is hampered by the continuing

161
UN General Assembly Resolution 217A (III) mentions in its preamble that the resolution is a common
standard of achievement; despite this some authors are claiming that the Universal Declaration is reflecting
customary international law: M.G. KALADHARAN NAYAR, “Introduction: Human Rights: The United Nations
and the United States Foreign Policy”, Harvard International Law Journal 1978, 816-817; J.P. HUMPHREY,
“The International Bill of Human Rights: Scope and Implementation”, William & Mary Law Review 1975-1976,
529; R.B. LILLICH, “Invoking International Human Rights Law in Domestic Courts”, University of Cincinnati
Law Review 1985, 394.
162
Besides its advisory opinion on Namibia and nuclear weapons, the Court has regarded the principle of
permanent sovereignty over natural resources as a rule of customary international law, citing various
resolutions: Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda),
Judgment, ICJ Rep. 2005, § 244.
163
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 Rep. 1971, § 52.

40
 tensions between the nascent opinio juris on the one hand, and the still strong
adherence to the practice of deterrence on the other.”164

From this it is clear that resolutions can contribute to the emergence of a new rule of
customary law, if there is other consistent practice.165 In the advisory opinion however, the
Court found contrary State practice and therefore had to conclude that there was no rule in
general customary international law forbidding the use of nuclear weapons.

51. A last issue concerns the possibility that resolutions ipso facto create general customary
international law, in the case where a resolution is adopted almost unanimously with the
intention of States to create a rule of international law. In my opinion, this is impossible since
it gives in those particular instances resolutions a binding nature, even though the constitutive
document of the international organization determines that they are only recommendatory.
Furthermore, as was pointed out above, careful analysis has to be made of the reasons why
States voted in favour of a particular resolution, which includes examining other factors such
as statements. Yet, this entails that not only the resolution, but the resolution together with
other practice has led to the emergence of a new rule of customary international law, although
the relative weight of the resolution in the aggregate State practice will be relatively high.
Lastly, the acceptance of the creation of customary international law by the mere adoption of
a resolution would reintroduce the severely criticized concept of “instant custom”.166 In
conclusion, while resolutions can play a significant role in the formation of new rules of
customary international law, the sole adoption of a resolution will never suffice to create a
new rule.

2. The subjective element in customary international law

52. While the issue of State practice is relatively settled, the requirement of the subjective
element remains clouded in doubts and opaqueness. Its exact scope and functioning is still
open to controversy and some have even doubted the traditional theory that it is a necessary
requirement of customary international law.167 Therefore, in a first part I will inquire whether
the subjective element is a necessary requirement. In our view, the condition of subjective
element is indeed a necessary element of customary international law, “the philosopher’s
stone which transmutes the inert mass of accumulated usage into the gold of binding legal
rules”168. In a second part I will examine the content of the subjective element. Typically,

164
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 73.
165
Although the Court treated the General Assembly resolutions as evidencing an opinio juris, the more correct
approach would have been to consider the resolutions as State practice from which a clear opinio juris could be
deduced to outlaw the use of nuclear weapons. See Section 2, § 3, A, 3 on the relation between State practice and
opinio juris.
166
For criticism on the notion of “instant custom” see: M.E. VILLIGER, Customary International Law and
Treaties, Dordrecht, Nijhoff, 1985, 29; M. BOS, “The Recognized Manifestations of International Law”, German
Yearbook of International Law 1977, 27.
167
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 202 et seq; M.H. MENDELSON, “The Formation of Customary International Law”, 272
Recueil des Cours 1998, 285 et seq.
168
H.W.A. THIRLWAY, International Customary Law and Codification: An Examination of the Continuing Role
of Custom in the Present Period of Codification of International Law, Leiden, Sijthoff, 1972, 47.

41
there exist two approaches to it. The first one can be labelled voluntarist in the sense that it
regards the concept as the explicit or implicit consent of States that the practice becomes a
binding rule of customary international law.169 A second current is not of the opinion that
consent is the correct categorisation, but speaks of a general belief of States that a certain
practice is obligatory or necessary under international law, traditionally called opinio juris
sive necessitatis. In any event, the International Court of Justice and its predecessor the
Permanent Court of International Justice have failed to resolve the matter; even worse they
have used both approaches in their judgments resulting in a tit-for-tat game of case law
between the proponents of the two theories. Hence, the voluntarist approach can refer to S.S.
Lotus in which the Permanent Court of Justice observed that:

“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…”170

Other examples include statements made by the International Court of Justice in the
Asylum Case, the Fisheries Case and the Right of Passage Case.171

53. On the other hand, various cases of the Permanent Court of International Justice and the
International Court of Justice give more support to the theory which views the subjective
element in custom rather as a general belief of States that a certain practice is obligatory or
necessary.172 In particular, the International Court of Justice held in the North Sea Continental
Shelf Cases:

“even if these instances (…) were much more numerous than they in fact are, they
would not, even in the aggregate, suffice to constitute the opinio juris; – for in
order to achieve this result, two conditions must be fulfilled. 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

169
Representatives of this current are ANZILOTTI, TUNKIN, WOLFKE, DANILENKO and ELIAS. See: G.I. TUNKIN,
“Co-existence and International Law”, Recueil des Cours 1958-III, 13; G.I. TUNKIN, “Remarks on the Juridical
Nature of Customary International Law”, California Law Review 1961, 423; G.I. TUNKIN, “International Law in
the International System”, Recueil des Cours 1975-IV, 124; K. WOLFKE, “Some Persistent Controversies
regarding Customary International Law”, Netherlands Yearbook of International Law 1993, 4-6; G.M.
DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law 1988, 11-
14; O. ELIAS, “The Nature of the Subjective Element in Customary International Law”, International and
Comparative Law Quarterly 1995, 501.
170
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 18.
171
Asylum Case (Columbia v. Peru), Judgment, ICJ Rep. 1950, 276-278; Fisheries Case (United Kingdom v.
Norway), Judgment, ICJ Rep. 1951, 136-139; Right of Passage over Indian Territory (Portugal v. India), Merits,
Judgment, ICJ Rep. 1960, 39-40.
172
S.S. Wimbledon (United Kingdom, France, Italy and Japan v. Germany, Poland Intervening), Judgment, PCIJ
Publ., Series A, No. 1, 26-28; S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 28;
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America),
Judgment, ICJ Rep. 1984, § 111; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, ICJ Rep. 1986, §§ 183-186; Legality of the Treat or Use of
Nuclear Weapons, Advisory Opinion, ICJ. Rep. 1996, §§ 64-73.

42
 rendered obligatory by the existence of a rule requiring it. The need for such a
belief, i.e. the existence of a subjective element, is implicit in the very notion of
opinio juris sive necessitatis. The States concerned must therefore feel that they
are conforming to what amounts to a legal obligation.”173

54. Hence, the case law of the highest authoritative body does not provide an answer which
view on opinio juris should be followed; on the contrary it only exacerbates the confusion.
Therefore, after discussing the need of the subjective element in custom, a further in depth
study of both theories might lead to the solution.

a. The need for the subjective element

55. The requirement of the subjective element, as the most controversial aspect of custom,
has been dispensed with by part of doctrine.174 Generally there are two lines of thought. The
strong thesis dispenses with the subjective element in customary international law at all stages
of custom. The weak thesis does not consider the subjective element an essential requirement
in the formation of a rule of customary international law. However, it has been contended that
the weak thesis draws too sharp a distinction between formation and application of a rule of
customary international law, while in reality custom is a continuous process, in which
application also shapes the customary rule.175 Consequently, arguing that the subjective
element is not necessary in the formation stage boils down to the denial of the subjective
element as a requirement of customary international law.

56. Despite this justified objection to the weak thesis, the view has some merit in cases
where the content of the customary rule is modified or the rule becomes replaced by a new
rule of customary international law, which does not involve the application and shaping of the
old customary norm. Moreover, it is possible to make a distinction between the application
and formation of a customary norm. It is correct that rules of customary international law are
generally more prone to a penumbra of uncertainty, to open texture, entailing that each
application of the rule makes the rule more concrete, and in this sense forms the rule of
customary international law. For instance, application of the rule to new situations, which

173
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 77.
174
L. KOPELMANAS, “Custom as a Means of the Creation of International Law”, British Yearbook of
International Law 1937, 127; M.H. MENDELSON, “The Subjective Element in Customary International Law”,
British Yearbook of International Law 1995, 202 et seq; M.H. MENDELSON, “The Formation of Customary
International Law”, Recueil des Cours 1998-II, 285 et seq; J. GOLDSMITH and A. POSNER, “A Theory of
Customary International Law”, University of Chicago Law Review 1999, 1113; equally KELSEN and
GUGGENHEIM did not consider the subjective element relevant, but later recanted: H. KELSEN, “Théorie du droit
international coutumier”, Revue International de la Théorie de Droit, Nouvelle Série 1939, 263-264; P.
GUGGENHEIM, “Les deux elements de la coutume en droit internationale”, in S. BASTID (ed.), La technique et les
principes du droit public: Études en l’honneur de George Scelle, Vol. 1, Paris, LGDJ, 1950, 275; recanted in H.
KELSEN, General Theory of Law and State, Cambridge, Mass., Harvard University Press, 1945, 114; P.
GUGGENHEIM, Traité de droit international public, Vol. 1, Geneva, Librairie de l’Université, 1967, 104-405.
175
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 202; M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des
Cours 1998-II, 283-284.

43
were not previously envisaged by it, or limiting the scope of customary rules to exclude new
developments, can easily be constructed as practice moulding the rule of customary
international law.
On the other hand, one could in my view better argue that this is to be considered as
interpretation of the rule at hand and not as the “formation” of the rule. As such the actual
content of the rule does not change, its terms are widened or limited in order to fit the new
situation. In effect, there is not much difference in this respect between the interpretation of a
rule of customary international law and treaty law, certainly not if the treaty rule is considered
as codifying the rule of customary international law.176 Both have a penumbra of uncertainty,
which will allow the rule to include or exclude situations not previously envisaged.
Furthermore, in the context of treaty relations subsequent State practice in application of a
treaty clause might establish its interpretation.177 A change in that practice, remaining within
the bounds of the treaty clause, by all the parties will demonstrate a change in their
interpretation, not a desire to modify the treaty. The same could be said of customary norms: a
change in practice remaining within the limits of the rule is not really a formation of the rule,
but mere interpretation, although grey areas will persist, especially in case of modification.
In sum, the school of thought which does not require the presence of the subjective
element in the formation stage of a rule of customary international law can be distinguished
from the more radical school that does not consider the subjective element as a necessary
condition of customary international law at all. The weak thesis does not have an issue with
the voluntarist conception of the subjective element, but rather points to the time paradox of
the traditional concept of opinio juris sive necessitatis. The time paradox indicates the
problematic aspect of the requirement that a State has to act in the conviction that its conduct
is required by law, while in the formation stage the rule does not yet exist. I will therefore
reserve the discussion on this issue of the subjective element to the section of the concept of
opinio juris sive necessitatis, and now turn to the objections against the subjective element by
the strong thesis.

57. The strong thesis is based on practical and theoretical considerations on the subjective
element in custom. The first argument it advances is that the subjective element is impossible
to prove since it is impossible to know what the convictions or opinions of States are. The
first mistake of this argument is that it equates evidence with existence, which is analytically a
different issue.178 It might be impossible to prove the subjective element, but this does not
detract its value as a legal theoretical postulate. Second, the subjective element can be proven.
States do not have convictions, but human beings have. States might be abstract entities
creating international law, but they are populated by human beings whose conduct and beliefs
are attributed to it. From this human physical and verbal conduct, convictions or opinions can
easily be derived. It remains of course impossible to know what States actually believe, but
this is the case with all other forms of human interaction. What is important is what States
(and human beings) express their convictions to be.

176
Although codification might modify the existing vague rule of customary international law, as has been noted
supra, No. 42, this is not necessarily so.
177
Article 31 (3)(a) Vienna Convention on the Law of Treaties (1969).
178
S. YEE, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary Law’ is Greatly
Exaggerated”, German Yearbook of International Law 2001, 230-231.

44
58. A second argument of the strong thesis is that the subjective element does not play a
role in the case law of the International Court of Justice, despite its lip service to the concept.
Furthermore, the International Court of Justice seems to be satisfied that a customary rule
exists when there is sufficient uniform and consistent practice. At best, the subjective element
conceived as opinio juris sive necessitatis only has a function as a disclaimer, i.e. to indicate
which conduct or precedents do no count as State practice, in other words an opinio non juris.
This will especially be the case when practice is ambiguous, for instance if comprised of
omissions.179 Yet, this line of reasoning is not entirely convincing. First of all, even if it
might be true that the Court only plays lip service to the requirement of the subjective
element, this does not mean that the subjective element is meaningless. A concept might have
no utility in case law before a court, but this does not exclude its necessity. Something might
be theoretical indispensable while having no direct practical utility.180 Secondly, the
International Court of Justice might not investigate the subjective element, but frequently it
also does not look into State practice: it merely posits that a rule is part of customary
international law. As such this is not necessarily surprising: judges are not legal out-standers,
but legal professionals who have opinions on which rules international law comprises. In
other words, judges have an internal point of view on the content of customary international
law, which means that they not always have to look into State practice and the subjective
element.181 It is only when the parties to the dispute challenge the existence of a rule of
customary international law or invoke a rule of specific customary international law that the
International Court of Justice will look into State practice and the subjective element. For
uncontested rules of general international law the maxim jus novit curia applies. The
argument that the Court is satisfied with a sufficient general and consistent State practice is
equally not convincing, since it ignores the legal context in which this general and consistent
practice is presented. The International Court of Justice normally applies international law and
if one of the parties to the dispute can demonstrate a general and consistent State practice in a
legal context, there can be a rebuttable presumption that the subjective element is present or
existent. However, the presumption that something exists, at least points out to the necessity
of its existence: why presume something if its existence is not needed? Finally, from the fact
that the Court utilises an opinio non juris to disqualify some conduct as relevant State
practice, one could deduce the thesis that for State practice to be relevant (i.e. to qualify) an
opinio non juris cannot be present. But this essentially boils down to stating that State practice
will be relevant in the presence of an opinio juris. The last practical objection concerns the
contention that even the traditional role of opinio juris – to distinguish between mere usages
and customary rules – is of limited practical importance since it is clear which aspects of
international law are regulated by law. In short, de minimis non curat jus gentium. For
instance, nobody will contend that in diplomatic correspondence one has to use white paper as
a rule of customary international law. However, other examples could be thought of. In the
field of international humanitarian law, the prohibition of capturing small coastal fishing
vessels was long considered to be merely a rule of comity. Similarly, the right of enemy

179
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 204; M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des
Cours 1998-II, 285-286.
180
S. YEE, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary Law’ is Greatly
Exaggerated”, German Yearbook of International Law 2001, 231.
181
See: H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 102-103.

45
merchant ships to leave port after the commencement of hostilities within a given time period,
was initially granted on the basis of comity, before becoming customary international law.

59. Besides arguments based on practical considerations, some theoretical arguments

against the condition of the subjective element are made. Firstly, it is argued that asking for a
legal conviction in the case of customary international law is in fact asking why international
law is binding.182 It is true that the problems of customary international law touch upon
theoretical questions of the international legal system in general. As STERN has remarked
there is a similarity between the need for a subjective element and the question why
international law is binding. In both instances it concerns social facts, certain conduct and a
legal system operating in a society, which raises the question why these social facts are
binding upon the subjects.183 Yet, although it is undoubtedly true that a better insight in
customary international law leads to a better understanding of the functioning of international
law, this does not mean that requiring the presence of the subjective element is in fact asking
why international law is binding. Rather, the subjective element in custom establishes whether
certain conduct flows from a rule of customary international law and not from considerations
of comity, convergence of interest, morality etc.184 A second theoretical attack on the
requirement of the subjective element comes from the school of thought that bases customary
international law on game theoretical concepts.185 The theory claims to be a better theoretical
description of customary international law than the traditional doctrine of the two elements
and dispenses with the view that customary law is based on a sense of legal obligation (or any
other ground). Rather customary international law is based on the rational self-interest of
States.186 The theory is good in explaining why and how behavioural regularities come into
existence,187 but there it stops. Because, why should behavioural regularities based on rational
self-interest be considered as law? It cannot explain why some behavioural regularities are

182
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 201; M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des
Cours 1998-II, 279.
183
B. STERN, “Custom at the Heart of International Law”, Duke Journal of Comparative and International Law
2001, 89-90; see also: L. KOPELMANAS, “Custom as a Means of the Creation of International Law”, British
Yearbook of International Law 1937, 128.
184
MENDELSON himself in fact makes implicitly the distinction between the issue why international law is
binding and the identification of a particular norm of international law while discussing the role of consent in
customary international law: M.H. MENDELSON, “The Subjective Element in Customary International Law”,
British Yearbook of International Law 1995, 189-191; M.H. MENDELSON, “The Formation of Customary
International Law”, Recueil des Cours 1998-II, 261-263. For, one could argue that the binding force of
international law flows from the consent of all States, i.e. States have agreed to respect international law, but
that this does not mean that all sources of international law are based on consent. Applying this to my
argumentation, it is not impossible to argue that the binding character of international law is based upon the
consent of all States, but that for customary international law a legal conviction of the majority suffices to
establish a rule of customary international law.
185
Supra, No. 35.
186
J.A. GOLDSMITH and E.A. POSNER, “A Theory of Customary International Law”, University of Chicago Law
Review 1999, 1113.
187
The theory only considers rational self-interest as important in establishing behavioural regularities, while
States are not only pursuing policies on the basis of self-interest, but are populated with human beings, which
equally make ethical choices or have convictions on international law and the importance of law. Therefore, one
can agree with TESÓN who does believe that States make moral choices: F.R. TESÓN, A Philosophy of
International Law, Boulder, Co., Westview Press, 1998, 80.

46
considered to give rise to legal consequences and others not.188 It cannot distinguish between
violations of the rule and practice which aims to establish new rules of customary
international law. In fact, it does not recognize the existence of international law since it
doubts that international law influences the behaviour of States, except when it is in the
interest of States to “obey” international law. This is equally evidenced by the thesis that
treaties are also based on rational self-interest and hence not legally binding.189 The main
problem with this theory is that it equates law with social reality. Law, and especially
customary international law, has indeed to be related to social reality, but it is not social
reality.190 If law would equate with social reality, then there would be no law since might
makes right.191 Law instead reflects a condensed view on social reality since it is a normative
system aiming at regulating the behaviour of its subjects and hence, categorizing types of
behaviour as legally relevant.192 If one removes normativity from law, one is denying any
meaningful existence of law, since behaviour could not be scrutinized in relation to standards.

60. From the foregoing it follows that the subjective element is an essential element of
customary international law, since it allows one to distinguish which conduct gives rise to
legal consequences, or which conduct flows from the existence of a rule of customary
international law. In other words, it allows us to recognize what the rules of customary
international law are and which conduct does not belong to custom, but are mere usages based
on non-legal rationales. Its function is to bridge the gap between what “is” and what “ought to
be”. Indeed, habitual behaviour, how widespread and consistent it might be, is never sufficient
to create a legal standard to which future conduct will be scrutinized. Of course, habitual
conduct might give rise to legitimate expectations that the conduct will continue, but the
cessation or change in conduct will only result in the responsibility of the breach of these
legitimate expectations pursuant to the doctrine of estoppel, but not to the violation of a rule
of international law requiring the conduct. Moreover, the subjective element has another
function, namely to determine which parts of practice are legally relevant, i.e. which are not
the result of pure power politics between States. It in effect protects States against the effect
of the abuse of power by other States. Customary international law is very closely linked with
social reality since it draws the requirement of practice from conduct within the international
society. Relations in international society are based upon the power of its main actors, power
which is unequally distributed. Since law is not to be equated with social reality, but

188
M.A. CHINEN, “Game Theory and Customary International Law: A Response to Professors Goldsmith and
Posner”, Michigan Journal of International Law 2001-2002, 157-159; similarly, TESÓN, who uses game theory
to attack the positivist account of international law, does refute it as the basis of international law, since in his
view law is based on ethics and game theory can only describe which strategy is to be adopted to maximize self-
interest, not whether this strategy is morally desirable: F.R. TESÓN, A Philosophy of International Law, Boulder,
Co., Westview Press, 1998, 92-94.
189
J.L. GOLDSMITH and E.A. POSNER, A Theory of Customary International Law”, University of Chicago Law
Review 1999, 1171.
190
S. YEE, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary Law’ is Greatly
Exaggerated”, German Yearbook of International Law 2001, 237.
191
Something the authors seem to accept because one of the games they recognise as giving rise to custom is
coercion: J.L. GOLDSMITH and E.A. POSNER, A Theory of Customary International Law”, University of Chicago
Law Review 1999, 1123-1124.
192
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
25-27; A. PELLET, “The Normative Dilemma: Will and Consent in International Law-Making”, Australian
Yearbook of International Law 1988-1989, 24.

47
establishes rules regulating the future conduct of the members of that society, a concept is
needed which determines which forms of exercise of power in the field of customary
international law are legally relevant, and this is fulfilled by the introduction of the subjective
element. Consequently, conduct flowing from this abuse of power will not be considered
legally relevant because in such circumstances the conduct will not be accompanied by a
conviction that it is required by law.193 In other words, not all instances of the exercise of
power will be transformed into legal obligations.194 Hence, the requirement of the presence of
the subjective element will discipline and socialize State behaviour, promoting stability in
international relations.

b. The content of the subjective element

61. In the theory on customary international law, the scope of the subjective element has
been filled in radically differently. On the one extreme as a sort of tacit or implied consent, on
the other extreme as a conviction that certain conduct is required by an existing rule of
international law.195 Despite the theoretical differences, as will be shown, the practical result –
which States are bound by a customary rule – is more or less the same. Nonetheless, the
theoretical divide is not without consequence, since underlying are two different paradigms on
international law. The voluntarist approach starts from the general assumption that States can
only be bound by a rule of international law if they consented to it. In other words, the
departing point is State sovereignty, which is in principle absolute unless restricted by the
voluntary consent of each State.196 Of course, from this point of view follows that there will
be not that many rules of international law binding upon the international community of
States as a whole and that the legal relation between States will never be completely the same.
The other theoretical point of view, does regard States bound by customary international law
even if they have not each individually explicitly or implicitly consented, when there is a
general opinio juris sive necessitatis, or a shared conviction that a certain conduct is required
by an existing rule of international law.197 From this follows that it is the international legal
system, and not the free will of States that regulates the conduct among States. Furthermore,
flowing from this theory, the scope of sovereignty is granted and circumscribed by
international law and hence cannot be the starting point of international law.

62. The voluntarist approach to the subjective element in custom theoretically requires the
consent of each State in order to become legally obliged to abide by this rule of customary
international law. Since it is impossible to demonstrate that each State has expressly and

193
M. BYERS, “Introduction: Power, Obligation, and Customary International Law”, Duke Journal of
Comparative and International Law 2001, 86-87; M. BYERS, Custom, Power, and the Power of Rules,
Cambridge, Cambridge University Press, 1999, 212.
194
M. BYERS, Custom, Power, and the Power of Rules, Cambridge, Cambridge University Press, 1999, 18.
195
Needless to point out, there are more nuanced theories on opinio juris sive necessitatis, but for the sake of
development of argument, I will discuss the two radical approaches.
196
See in this respect S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 18.
197
See: L. DUGUIT, Traité de droit constitutionnel, Vol. 1, Paris, de Boccard, 1921, 11 et seq; N. POLITIS,
“Duguit et le droit international”, Archives de Philosophie de Droit 1932, 71; G. SCELLE, Précis de droit des
gens, Part I, Paris, Sirey, 1932, 6; A. VERDROSS, “Le fondement du droit international”, Recueil des Cours 1927-
I, 285-286; J. BASDEVANT, “Règles générales de droit de la paix”, Recueil des Cours 1936-IV, 516.

48
individually consented to a rule of customary international law, proponents of the theory
consider custom as based on a tacit pact or agreement: by their practice States are presumed to
have tacitly consented to be bound by a rule of customary international law. This school of
thought is very old and can refer to Roman texts considering custom as flowing from the tacit
consent of the people.198 The “founding fathers” of modern international law equally held that
custom was in fact a tacit pact, although they accepted natural law as part of the law of
nations binding upon every State.199 Yet, despite its respectable age, what is exactly meant by
tacit consent is not always clear: the German and Italian continental positivist school
understood this in a strict sense, namely consent by each State. The Anglo-Saxon school
considered tacit consent more flexible, as a sort of common consent gathered through
practice.200 In any event, the tacit consent theory quickly had to move to presumptions and
even assumptions that States have tacitly consented. Most notably, STRUPP based custom on a
“pactum tacitum qualificatum”, a qualified tacit consent whose existence can be inferred from
the conduct of the State that in the past it has bound itself to respect a rule towards another
State.201 From this it is clear that the previous tacit agreement is a mere legal fiction, since it is
inferred from the actual conduct of States.202 Added to this is his acceptance of universal
customary norms whose existence must be assumed, or put differently, there exist an
irrefutable presumption that they exist.203 Other norms, the so-called “common law”,
comparable with the notion of general international law, are considered to bind all States,
unless a State can prove it has never consented to the particular norm.204 Later proponents of
voluntarism have equally struggled with the determination of which States have given their
tacit consent. It has been argued that States who do not act, are deemed to have tacitly
consented to the rule, in other words they have acquiesced that the rule is binding upon
them.205 Several authors have upheld that only specially affected States are deemed to
acquiesce to a rule of customary international law if their interests are affected and they fail to
protest.206 The problem is to identify which States are specially affected: are States that might
have in the foreseeable future an interest in the practice considered as specially affected?
What in the case of erga omnes obligations, in which every State have a legal interest that the

198
See for example: Ulpianus, Tit. Ex corpore Ulpiani, 1, 4: “Mores sunt tacitus consensus populi longa
consuetudine inveteratus”; Digest 1.3.32.1.
199
F. SUAREZ, De legibus, II, Madrid, Consejo Superior de Investigaciones Cientificas, Instituto Francisco de
Vitoria, 1972, Chapter XIX, 3; H. GROTIUS, De iure belli ac pacis libri tres, I, Aalen, Scientia, 1993, XIV/1; S.
PUFENDORF, De jure naturae et gentium libri octo¸ Volume I, Photographical Reproduction, Oxford, Clarendon,
1934, 226; C. WOLFF, Jus gentium methodo scientifica pertractum, Volume II, Translation, Oxford, Clarendon,
1934, Prolegomena, §§ 4-7.
200
R. KOLB, “Selected Problems in the Theory of Customary International Law”, Netherlands International Law
Review 2003, 142.
201
K. STRUPP, “Les règles générales du droit de la paix”, Recueil des Cours 1934-I, 303-304.
202
R.M. WALDEN, “The Subjective Element in the Formation of Customary International Law”, Israel Law
Review 1977, 352.
203
K. STRUPP, “Les règles générales du droit de la paix”, Recueil des Cours 1934-I, 309-310.
204
Ibid., 310-311.
205
G.M. DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law
1988, 40; K. WOLFKE, Custom in Present International Law, Dordrecht, Nijhoff, 1993, 62; G.I. TUNKIN, Theory
of International Law, London, George Allen & Unwin, 1974, 129. For a thorough account of the supposed role
of acquiescence: I. MACGIBBON, “The Scope of Acquiescence in International Law”, British Yearbook of
International Law 1954, 143.
206
K. WOLFKE, Custom in Present International Law, Dordrecht, Nijhoff, 1993, 62-63; G.I. TUNKIN, Theory of
International Law, London, George Allen & Unwin, 1974, 129.

49
rule be respected?207 To hold that all these “affected” States are considered acquiescing is
obviously not in accordance with reality. Nevertheless, it has been argued that even indirectly
affected States – a notion which is even more unclear – are to be deemed to have
acquiesced.208 Furthermore, there is the problem of new States or States which become active
in a field in which they were not active before due to external circumstances. With regard to
the former, it is generally considered that they are bound by existing rules of customary
international law, whether they consent or not, although voluntarist theory has stated that in
fact these new States chose to consent to the bulk of customary rules.209 However, if this were
the case, then it is rather odd that new States have consented to rules which they immediately
vigorously try to change. Moreover, new States have failed to invoke the fact that they did not
consent to existing rules of customary international law when challenging rules of customary
international law allegedly binding upon them.210 With regard to the second category, for
instance a State which gains access to the sea or a State starting space exploration, consent to
the existing rules of international law has probably never been given. Nonetheless, those
States are expected to respect existing customary international law.

63. As is clear from above, the problem with this theory seems to lie in its inconsistency
with the reality of the creation and binding character of rules of customary international law in
a world society of some two hundred States, which makes it impossible to demonstrate that
every State has individually agreed with universal accepted customary rules like, for example,
the rules on diplomatic and consular immunities. The supporters of the theory therefore have
to apply various presumptions and even assumptions that customary rules are binding, even if
the consent of States is unlikely to be given or cannot be proven. Nonetheless, the theory has
the merit to free law from its classic natural law chains, emphasizing that law is after all a
human enterprise, not a normative system which has to be deduced from divine or rational
postulates. Moreover, it could be argued that the theory, albeit resorting to various fictions, is
at least logically corollary with the international legal system, whose obligatory nature is
based upon consent. Indeed, one could contend that States have consented to the setting up of
a system of international law and to its sources. Furthermore, if all States are considered

207
Barcelona Traction Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 33.
208
G.M. DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law
1988, 40; G.M. DANILENKO, Law-Making in the International Community, Dordrecht, Nijhoff, 1993, 108.
209
See: J. BASDEVANT, “Règles générales du droit de la paix”, Recueil des Cours 1936-IV, 515; M. BOURQUIN,
“Règles générales du droit de la paix”, Recueil des Cours 1931-I, 64-65; H. KELSEN, Principles of International
Law, London, Holt, Rinehart and Winston, 1967, 444-445; J. KUNZ, “The Nature of Customary International
Law”, American Journal of International Law 1953, 666; H. WALDOCK, “General Course on Public
International Law”, Recueil des Cours 1962-II, 52-53; M. SØRENSEN, “Principes de droit international public”,
Recueil des Cours 1960-III, 45-46; R.M. WALDEN, “The Subjective Element in the Formation of Customary
International Law”, Israel Law Review 1977, 355; I. LOBO DE SOUZA, “The Role of State Consent in the
Customary Process”, International and Comparative Law Quarterly 1995, 533-534; R. KOLB, “Selected
Problems in the Theory of Customary International Law”, Netherlands International Law Review 2003, 142. For
the voluntarist thesis: G.I. TUNKIN, Theory of International Law, London, George Allen & Unwin, 1974, 129;
G.M. DANILENKO, “The Theory of Customary International Law”, German Yearbook of International Law 1988,
36; K. WOLFKE, Custom in Present International Law, Dordrecht, Nijhoff, 1993, 165-166.
210
India could for instance invoke that as a new State it has not consented to the passage of Portuguese officials
over its territory, but instead denied the possibility that a customary rule could emerge between only two States:
Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, ICJ Rep. 1960, 39.

50
sovereign and equal, the only way of binding them is by way of their agreement, whether
explicit or implicit.211
Nevertheless, this is not entirely convincing. First, the premiss that the obligatory force
of international law is based on consent seems flawed. The basis of obligatory nature of
international law does not rest on consent, but on the conviction that States should comply
with the legal norms resulting from the recognized sources of international law. Indeed, States
for whatever reason recognize the necessity of regulating their international relations by
international law.212 But even if one may assume that all States have consented to conclude a
Hobbesian social pact to escape the state of nature of bellum omnium,213 this does not entail
that the whole international legal system is based on consent since States have to honour the
social pact and the rules it contains. Once they concluded the social pact to govern their
relations by international law, they remain bound by it. In this respect, international law is like
the genie in the bottle: all States have to rub the bottle to get the genie out, but when it gets
out of the bottle, it might not be possible to put it back in. In fact, no system of law can
operate on the basis of consent alone; for what would be the purpose of a legal system if in the
end its subjects may act as they please? Therefore, there must exist a minimum of
normativity, namely that consent results in being and remaining bound, which is traditionally
referred to as pacta sunt servanda. Furthermore, if States would have consented to the sources
of international law, then this does not necessarily mean that consent is a necessary element of
each individual source.214 For, States may agree that a particular source is not based on
consent, which in effect is the case for the general principles of law recognized by civilized
nations.215 Furthermore, the principle of sovereign equality is not endangered, since it can be
argued that all sovereign States have consented to the secondary rule of customary law-
making which is not entirely based on consent. Hence, all States are equal, since each of them
might be bound by a rule of customary law although it has not consented to the rule: States
are equally sovereign within the law.216 From the foregoing, it is already clear that consent is
not necessarily the basis of the obligatory nature of international law.
Another defence of the voluntarist basis of custom is the existence of a persistent
objector rule, determining that a State is not bound by an emerging rule of customary
international law if it has persistently and consistently opposed it. Despite the questioned

211
K. STRUPP, “Les règles générales du droit de la paix”, Recueil des Cours 1934-I, 301.
212
I.D. SEIDERMAN, Hierarchy in International Law, The Human Rights Dimension, Intersentia, Antwerp, 2001,
17-18.
213
HOBBES himself did not believe that international law was really law, because States are in the state of nature
governed by natural law, considered as prudential rules of survival: T. HOBBES, Leviathan, London, Penguin
Classics, 1985, 187-188. For an overview of the views of HOBBES on international law: H. BULL, “Hobbes and
the International Anarchy”, Social Research 1981, 717-738; R.A. GROVER, “Hobbes and the Concept of
International Law”, in T. AIRAKSINEN and M.A. BERTMAN (eds.), Hobbes War among Nations, Gower,
Aldershot, 1989, 79-90.
214
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 189-190; VAN HOOF seems to make this mistake by stating that since international law
is based on the consent of States, the point of departure should be whether a States has consented to a particular
rule: G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation,
1983, 76.
215
Infra, No. 89 et seq.
216
R.P. ANAND, “Sovereign Equality of States in International Law”, Recueil des Cours 1986-II, 35-36.

51
existence of such a rule,217 if it would exist it is rather an argument against the voluntarist
thesis, because, why would such a rule be needed if custom were based upon consent after
all? Rather, the existence of the rule makes sense when custom is considered to be a law-
making process which can bind the non-consenting minority, which under certain
circumstances can escape this effect by persistently objecting the emerging rule.218

64. Does consent have no role to play at all in customary international law? Generally
speaking it might be said that consent is a sufficient, but not a necessary condition.219 If a
State consents to the existence of a rule of customary international law, this consist proof that
it accepts the rule as binding upon it. The same could be said of a State which really
acquiesces to the (alleged) existence of a rule of customary international law. If State A
makes a claim based upon customary international law against State B which complies, it
might be said that State B is acquiescing to the existence of the customary rule and its
acquiescence might be taking into consideration as State practice reflecting the presence of
the subjective element. It can even be said that State C, which has the same interests as B and
could be directly affected by the claim of State A, upon failure to protest has recognized the
existence of the customary rule in question. For instance, if several States make the assertion
against the United States that they have jurisdiction over satellites overflying their territory,
the Russian Federation might be expected to protest, provided it knew or ought to have known
of the assertion. If not, one could perfectly argue that it has acquiesced to the claim.
Furthermore, it might be said that consent plays a role in the formation of a new rule of
customary international law. At least it is necessary that some States should have willed the
creation of a new norm of customary international law. In general, consent is present in the
head of States actively contributing to the formation of customary international law, by
initiating it and by imitating the conduct, and other directly affected States by consensually
acquiescing to the new rule.220 However, consent will not have the last word since many
countries will do nothing because their interests are not (directly) affected, and will in the end
find themselves obliged by the new rule of customary international law. Furthermore, State
consent cannot play the lead role in the formation of customary international law because of
the process of customary international law making. For consent implies that the State in fact

217
There is a wealth of literature on the concept of persistent objector: see INTERNATIONAL LAW ASSOCIATION,
COMMITTEE ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final Report of the Committee: Statement of
Principles Applicable to the Formation of General Customary International Law”, ILA Rep. 2000, 738-740; M.H.
MENDELSON, “The Formation of Customary International Law”, Recueil des Cours 1998-II, 227-244; M.
AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1974-1975, 23-
27; J.I. CHARNEY, “The Persistent Objector Rule”, British Yearbook of International Law 1985, 1; T.L. STEIN,
“The Approach of a Different Drummer”, Harvard International Law Journal 1985, 457; D.A. COLSON, “How
Persistent must the Persistent Objector be? “, Washington Law Review 1986, 957; J. BROCK MCCLANE, “How
Late in the Emergence of a Norm of Customary Law may a Persistent Objector object?”, ILSA Journal of
International and Comparative Law 1989, 1.
218
I.M. LOBO DE SOUZA, “The Role of State Consent in the Customary Process”, International and Comparative
Law Quarterly 1995, 533; R. KOLB, “Selected Problems in the Theory of Customary International Law”,
Netherlands International Law Review 2003, 144.
219
M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des Cours 1998-II, 265; M.H.
MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of International Law
1995, 193.
220
M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des Cours 1998-II, 255-256;
M.H. MENDELSON, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 185.

52
knows to which rule it consents. Yet, how can consent determine the content and scope of the
new rule if it is not clear what the new rule of customary international law will be like in the
end?221 It might well be that the proposal of a new rule is rejected outright. But even if it finds
some support, due to the customary process, which might involve up to some two hundred
States, the impact of an individual State consent might be minimal. For instance, State A
intends to change rule X into rule Y and can only accept rule Y and not the weakened version
rule Y’. State B till D follow suit, but could be satisfied with a weaker rule than Y, as long as
there is no return to rule X. However, it is possible that the intention of A is misinterpreted by
States E-H, who are convinced that State A would have no problem accepting rule Y’. States I
till P do favour Y’’. States Q till W object in the first place to the abandonment of rule X, but
might be satisfied to give up their objection for rule Y’’’. From this it will not be clear whose
consent will in the end determine the content and scope of the new rule, if in the end there
will be a new rule created. In effect, there is no consent to the content and scope of a new
future rule, but it only reflects the attitude of States concerning an evolving international
practice which they chose to modify, adopt or not. So since in the incipient phase no common
object might be discernible, it can be doubted that consent has a significant role to play in
customary law creation. In the end, what is left is the intent to change the existing rule, but
this is something different than consenting to a new rule of customary international law.
Rather, during the process of customary law creation States will gradually get the conviction
that a certain rule is to be adopted, and it will be this conviction that will endow the practice
with a legal character. It is to this conviction or opinio juris sive necessitatis I will now turn.

65. The second approach considers the subjective element not in terms of consent, but as a
belief in a legally permissible or obligatory nature of the conduct concerned or of its
necessity.222 This definition echoes the dictum of the International Court of Justice in the
North Sea Continental Shelf Cases where the Court in the context of an emerging customary
rule spoke of a feeling that States are conforming to what amounts to a legal obligation.223
The concept of opinio juris sive necessitatis is much more recent than the consensual
conception of custom. It is linked to the nineteenth century Historical School in Germany,
which did not consider law as the result of an arbitrary and conscious human will, but of the
spontaneous and natural product of the Volksgeist. It was this mystic Volksgeist which

221
See on this issue: I.M. LOBO DE SOUZA, “The Role of State Consent in the Customary Process”, International
and Comparative Law Quarterly 1995, 527-530; C. DE VISSCHER, “Cours général de principes de droit
international public”, Recueil des Cours 1954-II, 473-474. ELIAS tries to circumvent the problem by equating
consent in customary international law with “consensual acceptance, in one form or another, of the legal
character of a given course of conduct”: O. ELIAS, “The Nature of the Subjective Element in Customary
International Law”, International and Comparative Law Quarterly 1995, 501. In the formation of customary
rules this would mean that States consider that their conduct is of a legal nature, i.e. gives rise to legal
consequences, possibly the formation of a new rule of customary international law. However, this is totally
different from the traditional view that consent is the basis of the binding nature of customary international law,
a point ELIAS does not address in his study: Ibid, 501, note 4. Moreover this notion of consent implies that a
State has a conviction of the legal character of the conduct, i.e. an opinio juris sive necessitatis, to which other
States may consent.
222
M.H. MENDELSOHN, “The Subjective Element in Customary International Law”, British Yearbook of
International Law 1995, 195; M.H. MENDELSON, “The Formation of Customary International Law”, Recueil des
Cours 1998-II, 269.
223
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 77.

53
explained why national legal systems differed and should differ from each other. Hence,
custom could not be the result of a tacit agreement, but flowed from the Rechtsüberzeugung
of the people.224 From this it follows that what makes custom law is the Rechtsüberzeugung or
opinio juris225 and that practice is merely evidence of the existence of the customary rule, not
a constitutive element. Equally, it is evident that the theory cannot apply to international law,
since there does not exist a “Volk” at the international level.226 Nevertheless, the traditional
formulation of opinio juris sive necessitatis is rather similar to the Rechtsüberzeugung/opinio
juris of the Historical School since both require a legal conviction that some conduct is
required by an existing rule of customary law. In any event, the theory of opinio juris sive
necessitatis has the merit that it better explains the binding nature of custom. Whereas the
consent theory in principle required the consent of each individual State to be bound, but had
to resort to presumptions and assumptions, opinio juris sive necessitatis merely requires a
belief or conviction that a rule of customary law exists requiring or permitting certain
conduct. The theory of opinio juris sive necessitatis hence does explain why States which
have not for various reasons explicitly or tacitly consented to a rule of customary international
law, still consider themselves bound by the particular rule. Consequently, there is no need to
resort to presumptions or assumptions that States have consented to the particular rule since
one can believe that a rule of law exists although one has never consented to the rule, or has
even opposed it. Nonetheless, this does not entail that consent is totally irrelevant, for as
stated above, consent to the existence of a customary rule is sufficient to be bound by the rule;
in fact, the consent of a State confirms its conviction that certain conduct is required or
permitted by customary international law.

66. If the belief in the existence of a customary rule is generally shared amongst States, a
general rule of customary international law comes into existence, equally binding on States
which for whatever reason have not participated in the formation of the rule, except when that
State has persistently objected to the emergence of the new norm.227 States which stood idle
during the formation of the rule, can have the conviction that this rule is the law to be
followed, although they never consented or acquiesced to the rule. This conception also
explains why new States or States which engage in a new activity are bound by the existing

224
R.M. WALDEN, “The Subjective Element in the Formation of Customary International Law”, Israel Law
Review 1977, 357-358.
225
The historical origin of the notion of opinio juris is not entirely clear. Despite the Latin phrasing it does not
appear to be in common use by Roman jurists. GUGGENHEIM has traced the origins of the concept back to GÉNY
in 1919 but he applied it in municipal context, although GUGGENHEIM also found traces in the German Historical
School and in the work of RIVIER of 1896 dealing with international law: P. GUGGENHEIM, “Contribution à
l’histoire des sources du droit des gens”, Recueil des Cours 1958-II, 52. D’AMATO is of the opinion that GÉNY
was the first to use the concept in relation to international law: A. D’AMATO, The Concept of Custom, Ithaca,
N.Y., Cornell University Press 1971, 48-49.
226
This was consequently held by PUCHTA, but SAVIGNY identified at the European level a “Volk”, based on
racial and religious criteria: see: R.M. WALDEN, “The Subjective Element in the Formation of Customary
International Law”, Israel Law Review 1977, 359.
227
Although the existence of the persistent objector rule has been doubted, there is some State practice in favour
of the existence of such rule: see discussion and references in INTERNATIONAL LAW ASSOCIATION, COMMITTEE
ON THE FORMATION OF CUSTOMARY (GENERAL) LAW, “Final Report of the Committee: Statement of Principles
Applicable to the Formation of General Customary International Law”, ILA Rep. 2000, 738-740. In any event,
the persistent objector cannot hinder the coming into existence of the rule of general customary international
law: the only effect is that the rule cannot be applied against it.

54
rules of customary international law: there is a general conviction in the international
community that certain conduct is required by an existing rule of customary law. From this it
becomes clear that what makes certain conduct a rule of international law is the general
conviction of the international community of States that the conduct is required or permitted
by a customary rule; in other words, what is needed is an opinio generalis juris sive
necessitatis, a shared belief in the obligatory nature or permissibility of the conduct,
consisting of different opiniones individuales juris. In this respect, the opiniones individuales
juris can be equated with the internal viewpoint of the subjects in a legal system, or the
internal aspect of rules, as described by HART. What rules distinguish from habitual conduct
is that in the case of the former subjects have a critical reflective attitude that the conduct is
required by a common standard and that violations of the rule lead to criticism and demands
for conformity.228 While HART applied this theory to social rules in general, it might be
applied to customary international law, which is after all a specific kind of social rule. Hence,
rules of customary international law have an internal aspect, namely that they are considered
by the subjects of international law, as not merely habitual conduct, but as legal standards to
which other subjects have to conform. This conviction will have to be expressed in a certain
normative language so that it becomes clear that one deals with a legal rule, instead of a rule
of morality.229 Yet, the equation of opinio juris sive necessitatis with the internal aspect of
rules creates some problems. The theory was developed by HART for primary rules in a
system where no secondary rules exist. In such a situation the only manner to distinguish rules
from habitual behaviour is indeed the internal aspect of rules and the use of normative
language. However, in a system with secondary rules, the existence of rules is determined by
rules of recognition. Since we are of the opinion that international law does contain secondary
rules, including rules of recognition,230 this entails in the field of customary international law,
that the existence of this internal aspect, which we found to be a necessary element of
customary international law, is part of the rule of recognition. Against this one could argue
that the opinio juris sive necessitatis as element of a rule of recognition is redundant since if
subjects believe that their conduct is required by law, then it will be part of the law. A rule of
recognition of custom, whose function is to determine which social rules belong to custom,
seems at first sight unnecessary if it contains the requirement of a shared conviction that the
conduct is required or permitted by law, since this shared belief is sufficient to identify a rule
of customary international law, without the need to have recourse to a special rule of
recognition. This is however not entirely convincing. First, the remark would be valid if the
rule of recognition only contained the internal aspect. However, the rule of recognition of
custom contains two elements, practice and opinio juris sive necessitatis: a mere shared
conviction of what the law is, is not sufficient, there should equally be practice, not as merely
evidence of this shared belief, but as a constituent element of custom. Second, by including
opinio juris sive necessitatis in the rule of recognition, one excludes other ways of
establishing custom. One could for instance argue that customary law comes into being if the

228
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 57.
229
Ibid., 57; R.M. WALDEN, “Customary International Law: A Jurisprudential Analysis”, Israel Law Review
1978, 95-96.
230
Supra, Nos. 4-5. As stated before, HART did not really investigate the existence of secondary rules in
international law, he merely stated that these rules were not necessary for a legal system. He considered
international binding because it contained primary rules which were applied and gave rise to criticism if deviated
from: H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 234.

55
practice is reasonable, just or in harmony with the mores of a particular society, or when it has
been recognized by a court, despite the fact that there is no shared conviction that the conduct
is required by law.

67. Furthermore, the theory which equates the internal aspect with opinio juris sive
necessitatis seems to give rise to two problems. First, how to assert this internal aspect:
should one examine the actual beliefs of States, or to what they state their conviction is?
Second, there is the problem of the chronological paradox: how can a new rule of customary
international law emerge if the internal aspect, the reflective critical attitude that the conduct
is required by a common standard, has to be present, as part of the rule of recognition? If
opinio juris sive necessitatis or the belief that certain conduct is required by an existing rule of
customary law, is an integral part of the rule of recognition, no new rule of customary
international law can be recognized as belonging to international law since it is impossible to
argue that conduct deviating from an established rule can be said to be required by an existing
rule of customary international law.

68. With regard to the first issue one might contend that rarely one can discover the actual
belief of a State that certain conduct is obligatory or permissible. However, the term “belief”
does not have to be considered in its psychological connotation, but rather refers to the
position a certain State takes through its organs in its internal processes and in their
interaction with other States regarding the obligatory nature or the permissibility of a certain
conduct.231 What matters is what States say what they believe to be customary international
law, the position they take. One major reproach against this is that it detaches law from
reality, since States often window-dress their real motives based on plain self-interest with
legal arguments.232 Various arguments can be brought to the fore against this contention.
First, this reproach has the pretence that it can actually identify the real beliefs of States and
of human beings apart from their conduct and statements. But why would the expressed belief
of a State that some conduct is required by law in fact be a mere smoke screen concealing its
self-interest? What is behind the contention is a certain paradigm of international relations,
which are deemed to be based on rational self-interest. But of course, then one is not actually
looking at the real beliefs of States, but at beliefs coloured by this paradigm. Second, what
matters is that States have expressed their belief in the existence of a legal rule. The
motivation of the expression of this conviction is not relevant; it may be based on self-
interest, morality, politics, or a combination of all these factors. In the end recognition of the
customary rule is what counts. Third, even if there would be a gap between law and social
reality by looking at the positions States take with regard to customary international law, as
was pointed out above, law is a condensed view of social reality, it is not to be equated with
social reality itself.

231
M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1974-
1975, 36-37; M. VIRALLY, “The Sources of International Law”, in M. SØRENSEN (ed.), Manual of Public
International Law, London, McMillan, 1968, 133-134.
232
J.A. GOLDSMITH and E.A. POSNER, “A Theory of Customary International Law”, University of Chicago Law
Review 1999, 1113; others have contended that State officials frequently do not actually believe what they say:
G. ABI-SAAB, “The Development of International Law by the United Nations”, Revue Égyptienne de Droit
International 1968, 100; R.-J. DUPUY, “Coutume sage et coutume sauvage”, in S. BASTID (ed.), Mélanges offerts
à Charles Rousseau: La communauté internationale, Paris, Pedone, 1974, 83-84.

56
69. The second objection against the theory of opinio juris sive necessitatis is the so-called
chronological paradox.233 The theory seems to be rather unhelpful to explain the creation of
new rules of customary international law. Indeed, it is difficult to elucidate that a State which
is creating a new rule which deviates from and hence violates the existing rule of customary
international law, is in fact acting under the belief or taking the position that this deviant
practice is permitted or required by an existing rule of customary international law. The
paradox has been generally recognized, but also refuted as too logical to have any merit.234 It
has given rise to the above-mentioned weak thesis that opinio juris sive necessitatis is not a
necessary requirement during the formation of a rule of customary international law. This is in
accordance with the function of opinio juris sive necessitatis, namely to distinguish between
usages and customs. But if this is the function of opinio juris sive necessitatis, then it cannot
be used for something it was never intended to be used.
There is definitely some merit in this reasoning: what it actually contends is that the
traditional formulation of opinio juris sive necessitatis, that States have to act in accordance
with an existing rule of international law, can only have a purpose as an aspect of a rule of
recognition. Yet, the traditional view of opinio juris sive necessitatis cannot be used in the
framework of rules of change. Another way around the chronological paradox is the
contention that States are acting in error about international law, so that they indeed have the
conviction that they are acting by a rule of law requiring the particular conduct. However, this
theory reduces law-making to a mindless enterprise, while in reality law-makers do have the
intention to change the existing law.235 Nonetheless, error might lead to the creation of a
customary norm, such as was the case with the absolute immunity of States or the three
nautical mile width of the territorial sea,236 but this will be exceptional. KELSEN tried to
escape the paradox by stating that opinio juris sive necessitatis was indeed not required during
the formative stage, but merely the belief that one was applying a norm, not necessarily a
legal norm.237 Again, this is indeed a possible way in which a customary rule might arise,
especially in cases where no customary rule exists. States may act in a certain way because of
a norm of morality, comity or protocol, which gradually evolves into a rule of customary
international law because of a later opinio juris sive necessitatis, for instance as happened
with the prohibition of seizing small coastal fishing vessels as prize. Yet the problem remains,
for conduct based on for instance morality only results in a moral norm, not in a legal norm;
therefore opinio juris sive necessitatis is still needed. Furthermore, States intending to change
previous customary international law do make clear that their conduct aims at creating a new
rule of law,238 not on the basis of some non-legal norm.

70. For BYERS, the chronological paradox is inescapable and therefore he proposes a new
conception of opinio juris sive necessitatis. According to him, the customary process should
be understood as involving a set of shared understandings, of which opinio juris sive

233
M. BYERS, Custom, Power and the Power of Rules, Cambridge, Cambridge University Press, 1999, 130-133.
234
M. SØRENSEN, “Principes de droit international public”, Recueil des Cours 1960-III, 50.
235
G.M. DANILENKO, Law-Making in the International Community, Dordrecht, Nijhoff, 1993, 77 et seq; B.
CHENG, “Custom: The Future of General State Practice in a Divided World”, in R.ST.J. MACDONALD and D.M.
JOHNSTON (eds.), The Structure and Process of International Law, Dordrecht, Nijhoff, 1986, 535 et seq.
236
M. BYERS, Custom, Power and the Power of Rules, Cambridge, Cambridge University Press, 1999, 110-120.
237
H. KELSEN, Principles of International Law, Holt, Rinehart and Winston, London, 1967, 440.
238
B. CHENG, “Custom: The Future of General State Practice in a Divided World”, in R.ST.J. MACDONALD and
D.M. JOHNSTON (eds.), The Structure and Process of International Law, Dordrecht, Nijhoff, 1986, 535 et seq.

57
necessitatis consists of those standards which allow States to make the distinction between
legally relevant and legally irrelevant practice. He continues to explain that the belief of States
as to the legal relevancy of practice flows from conduct and is sensitive to context.239 Yet,
with regard to the first aspect, this presupposes which practice is of legal relevance.240 Since
the shared beliefs can only be known through the conduct of States, this will in the end boil
down to distilling from this practice the conviction of the State that the conduct is required or
permitted by a new emerging rule. Furthermore, context will not always be helpful in
determining whether practice is legally relevant. Of course, as stated before, de minimis non
curat jus gentium, but besides these de minimis situations there is conduct in a legally relevant
context, which does not give rise to customary norms, such as the above-mentioned examples
of the non-capturing of small coastal fishing vessels and the right of enemy ships to leave port
after the outbreak of hostilities. Taking these two points together, what remains is an
expression of a belief that the conduct a State is engaging in is required or permitted by
emerging or existing law.
In reality the chronological paradox can only be solved by making a distinction between
on the one hand the formation of a rule of customary international law and on the other hand
the existence of a rule of customary international law and to give different meanings to the
concept of opinio juris sive necessitatis in the different stadia. During the formation stage the
concept of opinio juris sive necessitatis would mean that the diverting practice is flowing
from legally relevant criteria, instead of acting in breach of the law or acting on the basis of
mere policy considerations.241 What is needed is an internal aspect, a critical reflective
attitude that one should conform to a legal standard, not an existing legal standard.242 Of
course one could criticize this position because it is not in accordance with the traditional
view on opinio juris sive necessitatis. But the traditional view deals with the opinio juris sive
necessitatis of the rule of recognition not with opinio juris sive necessitatis in the context of
the rule of change. For the former an opinio generalis juris sive necessitatis is needed, for the
latter only an opinio individualis juris sive necessitatis. In any event, the criticism implies that
there is only one form of opinio juris sive necessitatis, which begs the question what the true
sense of opinio juris sive necessitatis entails. However, for the sake of clarity, I will refer to
opinio necessitatis in the case of formation of a new rule of customary international law and
to opinio juris in the case of an established rule of customary international law. A State deems
it necessary that the previous rule changes or a new rule emerges and adopts divergent
practice in accordance with legally relevant criteria: it proposes a common legal standard
which it itself accepts and which it hopes other States will accept.

71. Some ways in which customary law might be formed could illustrate the functioning of
opinio necessitatis. In a first situation consistent and widespread practice is present, but is not
accompanied by any opinio juris sive necessitatis. The conduct is merely regarded as founded
on moral considerations or is performed on the basis of comity. At a certain point States

239
M. BYERS, “Custom, Power and the Power of Rules”, Michigan Journal of International Law 1995-1996,
139-140; M. BYERS, Custom, Power and the Power of Rules, Cambridge, Cambridge University Press, 1999,
148-149.
240
S. YEE, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary Law’ is Greatly
Exaggerated”, German Yearbook of International Law 2001, 233.
241
R. KOLB, “Selected Problems in the Theory of Customary International Law”, Netherlands International Law
Review 2003, 138.
242
R.M. WALDEN, International Law: A Jurisprudential Analysis”, Israel Law Review 1978, 97.

58
develop and unilaterally express an opinio necessitatis, or the conviction that it is necessary
that the practice becomes obliged or permitted by a rule of international law. If other States
follow suit, gradually, an opinio generalis necessitatis comes into existence, which will
transform to an opinio generalis juris, a conviction that in the end a customary rule is
established. This way of custom creation might also occur when a significant number of
States adopt and ratify a treaty, for instance a codification treaty, containing the practice as a
treaty obligation. States, whether or not party to the treaty, could then develop an opinio
necessitatis that the rule should also exist outside the treaty context as a rule of customary
law.
In a second situation there are no rules of international law existing in a certain field of
international relations. Some States might deem it necessary to create rules of customary
international law in order to regulate the activity. They express their opinio necessitatis and
adopt conduct in conformity with it. Other States might object to the regulation of the activity
and express their opinio non necessitatis, which can result in the retraction of the opinio
necessitatis. On the other hand, other States might imitate the conduct or express their opinio
necessitatis; it can also occur that other States just adopt the conduct in question, but do not
make their opinio clear. Yet, if this conduct becomes consistent and in accordance with the
initially formulated opinio necessitatis, this will help building up practice from which in the
end an opinio generalis juris can be inferred. Another possibility is that in the end only a
particular rule of customary international law comes into being.
A third situation concerns the desuetude or the replacement of an existing customary
norm, the normal way in which existing customary norms perish. The problem is here the
interplay between an existing opinio generalis juris and the opinio individualis necessitatis of
some States to change the existing rule. How should States try to change these existing
customary norms? It might be contended that they should engage in a practice inconsistent
with the previous norm. In this respect it has been pointed out that in the field of customary
international law every illegality might give rise to a new rule of customary international
law.243 However, such a view requires States to break the law in order to change it, a path not
to be recommended by anyone who aims at strengthening international law.244 In general,
mere inconsistent practice will not be sufficient, since it is in the first place a breach of an
existing rule.245 A small amount of conflicting practice will not amount to desuetude, if the
practice is considered to be in breach of the rule by the overall majority of States. What is
needed is a change in the opinio generalis juris of States. Of course, one way to change an
existing rule of customary international law is to adopt contrary practice from which a new
opinio generalis juris could be deduced as to the extinction or modification of the previous
norm. Indeed, widespread inconsistent practice will often demonstrate that the opinio
generalis juris of the previous rule has ceased to exist, leading to desuetude of the old rule.
Fortunately, there are more subtle ways to change an existing rule of customary international
law. For instance, a State may adopt a statement, a form of practice, expressing its opinio
necessitatis, the need to abandon or change the old rule and to replace it with a new rule or a
modified rule. Consequently, there will be some inconsistent State practice and an opinio

243
A. D’AMATO, The Concept of Custom in International Law, London, Ithaca, 1971, 97-98.
244
A. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1974-1975,
8.
245
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
100.

59
necessitatis without an actual breach of the existing rule. In the initial phase, the reaction of
other States will determine whether the new rule will be adopted. A vigorous reaction of the
majority of States could lead to the withdrawal of the opinio necessitatis of other States, thus
enhancing the existing norm. On the other hand, the formulated opinio necessitatis might
become more and more accepted, gradually crumbling the opinio generalis juris of the
existing norm. In a second phase, when the old norm is sufficiently weakened by an opinio
generalis necessitatis, more and more practice, including material practice inconsistent with
the norm, in favour of the new norm might be building up, leading in the end to a new opinio
generalis juris and a new rule of customary international law, or the existence next to each
other of different particular rules of customary international law. Another similar way of
changing an existing customary norm consists in the conclusion of treaties and the demand
from non-party States to confirm with the conventional norm as a new norm of customary
international law. The non-party States may gradually develop the opinio necessitatis that the
old rule is no longer desirable and create a new customary norm through their interactions
with the States party to the treaty.
A last issue concerns the binding character of the opinio necessitatis: is the rule
formulated therein immediately binding on the States having such an opinio? I submit it is
not.246 As pointed out above, in the initial phase there cannot be a consent to the new rule of
customary law since it is not yet clear if the new rule would emerge at all or what its exact
content will be. Furthermore, it is unlikely that there will be sufficient practice to speak of a
new rule. Due to opposition of other States, States might retract their opinio necessitatis and
adopt conduct which is in conformity with the challenged rule. But, if they would
immediately be bound by their opinio necessitatis towards other States with the same opinio,
this would mean that they have infringed a rule of customary international law, while no new
rule of customary international law might be created in the end. Hence, only when the opinio
necessitatis transforms into an opinio juris will there exist a binding rule of customary
international law, whether particular or general.

3. The relation between practice and opinio juris sive necessitatis

72. In the previous sections, the notions of practice and opinio juris sive necessitatis have
been discussed. We have applied a broad notion of State practice, including verbal acts, in
particular resolutions of the United Nations General Assembly, national legislation and
national judicial decisions. Concerning opinio juris sive necessitatis I have demonstrated that
it is a necessary constitutive element of customary international law, both in the formation
stage, as well as when the conduct has ripened into a rule of customary international law.
Furthermore, I have established that opinio juris sive necessitatis means a belief that the
practice is rendered permissible or obligatory under international law in case of an established
rule, or a conviction that conduct aiming at creating a new norm of customary international
law is legally relevant, i.e. aims at establishing a legal norm. Another problem arises
concerning the identification of the existence of an opinio juris sive necessitatis. In fact,
States are artificial constructions which, as such, do not have a conviction concerning the

246
Contra: B. CHENG, “Custom: The Future of General State Practice in a Divided World”, in R.ST.J.
MACDONALD and D.M. JOHNSTON (eds.), The Structure and Process of International Law, Dordrecht, Nijhoff,
1986, 540.

60
existence of a legal rule requiring certain behaviour to be followed. Since it is impossible to
asses in vacuo the existence of an opinio juris sive necessitatis, this element of customary
international law can only be deduced from the practice of international actors and in the
manner the practice is performed. This does not result in limiting customary international law
to practice only, but stresses the inextricable link between practice and opinio juris sive
necessitatis. In fact, one could even argue that both practice and opinio juris sive necessitatis
are two aspects of the single element of practice.247 Two pronouncements of the World Court
demonstrate this relation between practice and opinio juris sive necessitatis. In S.S. Lotus the
Court found that States had abstained on occasion from prosecution, but that this practice did
not reveal an opinio juris sive necessitatis.248 Similarly, in the North Sea Continental Shelf
Cases the Court stressed that the practice must be such as to evidence an opinio juris sive
necessitatis.249 Yet, in Military and Paramilitary Activities in and against Nicaragua, the
Court stated that it must satisfy itself that the opinio juris sive necessitatis of States is
confirmed by State practice and continued that the Court had to appraise the existing practice
in the light of opinio juris sive necessitatis,250 which might lead to the conclusion that there is
the possibility that opinio juris sive necessitatis exist independently of State practice.
However, it is important to note that the parties to the dispute had already expressed their
views concerning the existence of a rule of general customary international law, namely the
prohibition of the use of force, which is practice from which an opinio juris sive necessitatis
can be deduced. Of course the view of two parties to the dispute is not sufficient to establish a
general rule of customary international law and it is in this light that the Court stated that it
had to look for practice confirming the opinio juris (of the parties). Furthermore, in the same
judgment it stated that opinio juris might be deduced from the attitude of States towards
certain United Nations General Assembly resolutions,251 evidencing the particular relationship
between practice and opinio juris sive necessitatis.

73. Yet, this narrow relationship between practice and opinio juris sive necessitatis creates
the problem of the “epistemological circle”: one can only know a specific element of
customary international law by looking at the other. Opinio juris sive necessitatis can only be
known by looking at practice; however which practice is legally relevant can only be found
out by looking at opinio juris sive necessitatis. Although both elements have to be present,
one should look at the one to know the other. For instance, a broad view on practice leads to
the conclusion that the evidence of opinio juris sive necessitatis can only reside in that
practice, while the separate existence of opinio juris sive necessitatis is still needed to
determine which practice is legally relevant or irrelevant to be looked at in the first place. In

247
P. HAGGENMACHER, “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour
internationale”, Revue Générale de Droit International Public 1986, 114; see also: B. STERN, “Custom at the
Heart of International Law”, Duke Journal of Comparative and International Law 2001, 92.
248
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 28.
249
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of Germany
v. the Netherlands), Judgment, ICJ Rep. 1969, § 77.
250
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. The United States of America),
Merits, Judgment, ICJ Rep. 1986, § 184 and § 185.
251
Ibid., § 188; similarly in its advisory opinion concerning the Legality of the Threat or Use of Nuclear
Weapons the Court noted that General Assembly resolutions can provide evidence for establishing the existence
of a rule or the emergence of an opinio juris sive necessitatis: Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Rep. 1996, § 70.

61
the end, the epistemological circle leads to the conclusion that although both elements have to
be present, in fact only one is relevant.252 Unfortunately, the most obvious ways out of this
epistemological circle – the requirement of only one element or limiting the scope of practice
– have been found not to be attractive or desirable. Consequently, we will have to formulate
an alternative possibility to get out of the conundrum of the epistemological circle.

74. First, it has to be noted that the epistemological circle does only exist to a certain
extent. It is indeed correct that opinio juris sive necessitatis as an element of the rule of
recognition establishes which practice is relevant at the general, theoretical level, acting as a
kind of filter of practice, excluding practice which prima facie is not relevant. However, at the
concrete level, one still needs to establish whether the remaining practice is accompanied with
an opinio juris sive necessitatis. It is not because some practice is excluded from the start that
the remainder of the practice will demonstrate an opinio juris. For instance, at the beginning
of the inquiry whether a certain rule of custom exists, one can immediately exclude the
practice which is the result of threats or the use of force or practice based on comity. Yet, the
remainder of the practice will have to demonstrate the presence of an opinio juris sive
necessitatis as to the existence of a particular rule of customary international law. At this
stage, the impact of the epistemological circle might be less or even non-existent since there is
only (or overall) relevant practice left, and it is from this practice that the rule of customary
international law will be deduced. Second, the fact that opinio juris sive necessitatis can be
deduced from State practice does not mean that every form of State practice will be suitable to
deduce opinio juris sive necessitatis from. Especially, statements and resolutions of
international organizations could be used as evidence of an existing opinio juris sive
necessitatis, while opinio juris sive necessitatis will hardly be inferred from material conduct.
Yet, this does not mean that all statements and resolutions are helpful. Policy statements or
resolutions which only recommend a desirable conduct will not be suited to infer opinio juris
sive necessitatis from. Some statements might contain both elements, for instance a concrete
position of a State and the rationale for that position, the former being State practice, the latter
opinio juris sive necessitatis.253 Conversely, an opinio juris sive necessitatis might be deduced
from the context in which the conduct takes place. For instance, if a State allows the passage
of civil servants from another State to go to enclaves in its territory, while it requires
permission for the passage of police forces, one could deduce that with regard to the passage
of civil servants a legal obligation exists to allow their passage over the State’s territory.
National legislation and national judicial decisions might in certain circumstances shed light
on whether or not an opinio juris sive necessitatis exists. For instance, the German
Strafprozeßordnung requires in principle a mandatory prosecution of international crimes
contained in the Völkerstrafgesetzbuch,254 but it is doubtful that this national act could be used

252
M. BYERS, Custom, Power and the Power of Rules, Cambridge, Cambridge University Press, 1999, 136. A
good example is HAGGENMACHER stating that both practice and opinio juris sive necessitatis are two aspects of
the single element of practice: P. HAGGENMACHER, “La doctrine des deux éléments du droit coutumier dans la
pratique de la Cour internationale”, Revue Générale de Droit International Public 1986, 114; on the other hand,
CHENG only considers practice as evidence of opinio juris sive necessitatis, the latter being the sole relevant
element of custom: B. CHENG, “United Nations Resolutions on Outer Space: Instant International Customary
Law?”, Indian Journal of International Law 1965, 23 et seq.
253
S. YEE, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary Law’ is Greatly
Exaggerated”, German Yearbook of International Law 2001, 235.
254
§ 153 (f) Strafprozeßordnung (1877).

62
to demonstrate the customary duty to prosecute for international crimes in all circumstances,
since German criminal law requires a mandatory prosecution for every crime.255 While the
Völkerstrafgesetzbuch is definitely State practice no opinio juris sive necessitatis could be
deduced from it to establish the customary international law obligation to mandatory
prosecute for international crimes. Equally, a court decision upholding State immunity for
violations of international crimes on the basis of comity will not be useful to establish the
existence of State immunity for such crimes. In conclusion, not all State practice will be
suitable to prove an opinio juris sive necessitatis, rather, some State practice will demonstrate
the opinio juris sive necessitatis and this practice will be used to interpret the “neutral”
consistent State practice. In the end, one will have to assess if this consistent State practice is
sufficient to constitute a rule of general international law, or merely a rule of specific
customary law.

4. Customary international law status of jus cogens

75. There is no doubt that jus cogens as defined in the Vienna Convention on the Law of
Treaties represented a progressive development of international law at the moment of its
inclusion in the Convention.256 Nevertheless, modern international law has at all its stages
recognized some norms which could not be contracted out or derogated from in any other
way. So at the least a principle was recognized that some norms protected the community
interest and could not be dispensed with in the relationship between individual members of
the community.257 Nonetheless, this does not entail that the individuation of this principle as
laid down in Article 53 Vienna Convention on the Law of Treaties is part of customary
international law. A principle is much richer than its particular individuations at certain points
in time and cannot be reduced to it;258 moreover, a principle can give rise to various different

255
§ 152 (2) Strafprozeßordnung (1877).
256
Supra, No. 1.
257
A. LAGERWALL, “Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2305; L.
HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 23; E.P. NICOLOUDIS, La nullité de jus cogens et le
développement contemporain du droit international public, Athens, Éditions Papazissis, 1974, 37. An example
cited by the International Law Commission is the abolition of the slave trade, which culminated in the adoption
of the General Act of the Brussels Conference (1890): “Commentary to Article 45”, Yearbook of the
International Law Commission 1963, Vol. II, § 1. Article 96 of the General Act provided for the invalidity of
earlier concluded conventions. See also: WALDOCK, 683rd Meeting of the International Law Commission,
Yearbook of the International Law Commission 1966, Vol. I, § 25; PAL, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 64 and 68; ROSENNE, 685th
Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, §
4; Nigeria, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 49 (“jus cogens was an evolutionary, not a revolutionary, juridical concept”);
Chile, 52nd Meeting of the Committee of the Whole, l.c., § 53; Chile, 66th Meeting of the Committee of the
Whole, l.c., § 3; Ghana, 53rd Meeting of the Committee of the Whole, l.c., § 15; Madagascar, 53rd Meeting of
the Committee of the Whole, l.c., § 22 and 25; Poland, 53rd Meeting of the Committee of the Whole, l.c., § 33;
Cyprus, 53rd Meeting of the Committee of the Whole, l.c., § 67; Sweden, 54th Meeting of the Committee of the
Whole, l.c., § 1; Bolivia, 54th Meeting of the Committee of the Whole, l.c., § 6; Ivory Coast, 55th Meeting of the
Committee of the Whole, l.c., § 49; Malaysia, 56th Meeting of the Committee of the Whole, l.c., § 50; Italy, 20th
Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 37
258
Infra, No. 88.

63
individuations. Hence, the task remains to establish whether jus cogens as laid down in
Article 53 Vienna Convention on the Law of Treaties has become customary international
law.

76. There is some practice before the adoption of the Vienna Convention on the Law of
Treaties making reference to peremptory norms, yet practice beyond the adoption is scarce at
best. Although national courts have recognized the existence of peremptory norms especially
in cases of state immunity or immunity of high-ranking State officials,259 the fact remains that
no treaty or for that matter any other international act has been declared void because of
conflict with jus cogens. Of course, it might well be that such treaties or other legal acts were
not adopted; in the end, treaties or other legal acts going against jus cogens norms will be
exceptional occurrences in the international community. Nevertheless, besides national case
law there is some support for the contention that jus cogens has been incorporated in
customary international law. First, nearly all States during the Vienna Conference were
favourable to include the concept in the law of treaties and issued statements in which they
recognized that international law does contain peremptory norms.260 Although some States

259
Infra, No. 170.
260
Belgium, 41st Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 61; Iraq, 52nd Meeting of the Committee of the Whole, l.c., § 21; Kenya, 52nd
Meeting of the Committee of the Whole, l.c., § 28; Cuba, 52nd Meeting of the Committee of the Whole, l.c., §
34; Lebanon, 52nd Meeting of the Committee of the Whole, l.c., § 42; Nigeria, 52nd Meeting of the Committee
of the Whole, l.c., § 48; United Arab Republic, 52nd Meeting of the Committee of the Whole, l.c., § 51; Chile,
52nd Meeting of the Committee of the Whole, l.c., § 54 and § 61; Sierra Leone, 53rd Meeting of the Committee
of the Whole, l.c., § 9; Columbia, 53rd Meeting of the Committee of the Whole, l.c., § 26; Poland, 53rd Meeting
of the Committee of the Whole, l.c., § 32; Uruguay, 53rd Meeting of the Committee of the Whole, l.c., § 48; The
United Kingdom, 53rd Meeting of the Committee of the Whole, l.c., § 53; Argentina, 54th Meeting of the
Committee of the Whole, l.c., § 22; Italy, 54th Meeting of the Committee of the Whole l.c., § 41; Hungary, 54th
Meeting of the Committee of the Whole, l.c., § 46; New Zealand, 54th Meeting of the Committee of the Whole,
l.c., § 50; Romania, 54th Meeting of the Committee of the Whole, l.c., § 55; Bulgaria, 54th Meeting of the
Committee of the Whole, l.c., §§ 65-67; Spain, 55th Meeting of the Committee of the Whole, l.c., § 1; Pakistan,
55th Meeting of the Committee of the Whole, l.c., § 9; Brazil, 55th Meeting of the Committee of the Whole, l.c.,
§ 20; Czechoslovakia, 55th Meeting of the Committee of the Whole, l.c., § 24; Japan, 55th Meeting of the
Committee of the Whole, l.c., § 28; Federal Republic of Germany, 55th Meeting of the Committee of the Whole,
l.c., § 31; Ceylon, 55th Meeting of the Committee of the Whole, l.c., § 37; Ecuador, 55th Meeting of the
Committee of the Whole, l.c., § 44; Ivory Coast, 55th Meeting of the Committee of the Whole, l.c., § 53; United
Republic of Tanzania, 56th Meeting of the Committee of the Whole, l.c., § 1; Ukraine, 56th Meeting of the
Committee of the Whole, l.c., § 6; Philippines, 56th Meeting of the Committee of the Whole, l.c., § 20; Canada,
56th Meeting of the Committee of the Whole, l.c., § 22; Norway, 56th Meeting of the Committee of the Whole,
l.c., § 38; Thailand, 56th Meeting of the Committee of the Whole, l.c., § 42; Malaysia, 56th Meeting of the
Committee of the Whole, l.c., § 51; Trinidad and Tobago, 56th Meeting of the Committee of the Whole, l.c., §
59; Mali, 56th Meeting of the Committee of the Whole, l.c., §§ 68-69; Central African Republic, 57th Meeting of
the Committee of the Whole, l.c., § 86; Ireland, 80th Meeting of the Committee of the Whole, l.c., § 10;
Australia, 19th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II,
1970, § 19; Philippines, 19th Plenary Meeting, l.c., § 23; Federal Republic of Germany, 19th Plenary Meeting,
l.c., § 25; Ecuador, 19th Plenary Meeting, l.c., §§ 31-32; Romania, 19th Plenary Meeting, l.c., §§ 49-50; United
Kingdom, 19th Plenary Meeting, l.c., § 53; Colombia, 19th Plenary Meeting, l.c., § 61; Poland, 19th Plenary
Meeting, l.c., § 67; Ukraine, 19th Plenary Meeting, l.c., § 75; United States of America, 20th Plenary Meeting,
l.c., § 20; Iraq, 20th Plenary Meeting l.c., § 32; Cyprus, 20th Plenary Meeting, l.c., § 34; Malaysia, 20th Plenary
Meeting, l.c., § 46; Netherlands, 20th Plenary Meeting, l.c., § 47; Byelorussia, 20th Plenary Meeting, § 48;
Libya, 20th Plenary Meeting, l.c., § 61; Ireland, 20th Plenary Meeting, l.c., § 66; Japan, 20th Plenary Meeting,
l.c., § 68; Argentina, 22nd Plenary Meeting, l.c., § 69

64
opposed Article 53 Vienna Convention on the Law of Treaties, this was merely because of its
vagueness and the lack of an independent dispute settlement procedure.261 In the end only
France and Turkey consistently denied the existence of jus cogens.262 Although Belgium
issued a reservation that Article 53 and 64 Vienna Convention on the Law of Treaties does
not apply between it and a State having made a reservation to the dispute settlement
procedure,263 the reservation is in fact more linked to the compulsory settlement of disputes
about jus cogens norms than with the existence of such norms as such.264 Moreover, the
validity of the reservation can be seriously doubted.265 Furthermore, States did not object to
the inclusion of Article 53 and 64 in the Vienna Convention on the Law of Treaties between
States and International Organizations (1986), although France and Turkey reiterated their
opposition.266 Besides the statements of government representatives at the Vienna Conference
mention should be made to the incorporation of jus cogens in the International Commission’s
Draft Articles on Responsibility of States for Internationally Wrongful Acts, which have been
taken note of by the United Nations General Assembly,267 and various decisions of national268

261
A. LAGERWALL, “Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2309-2310.
262
Turkey, 53rd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 8; Turkey, 80th Meeting of the Committee of the Whole, l.c., § 9; Turkey, 19th
Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 66; in
first instance, France seemed to have problems with the definition which lacked criteria for identification and
the absence of a dispute settlement mechanism, although it accepted the principle that States had no unlimited
treaty-making power: France, 54th Meeting of the Committee of the Whole, United Nations Conference on the
Law of Treaties, Official Records, Vol. I, 1969, §§ 26 et seq; France, 66th Meeting of the Committee of the
Whole, l.c., § 18. It later changed its position to an adversary to the introduction of jus cogens in international
law: France, 19th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II,
1970, §§7-18. Whether they could be considered persistent objectors is not clear. First, the doctrine of persistent
objector is strongly debated in international law. Second, even if the concept of persistent objector exists,
Article 53 Vienna Convention has introduced a specific rule in international law, namely a rule of recognition.
This rule of recognition is however not merely allowing States and other international actors to identify jus
cogens norms, but Article 53 has also amended the rule of recognition of treaties in international law: no treaty
can produce valid norms if these would be going against peremptory norms. Since an international legal system
can in the end have only one rule of recognition, France and Turkey are ultimately bound to recognize the
existence of jus cogens: Israel, 54th Meeting of the Committee of the Whole, United Nations Conference on the
Law of Treaties, Official Records, Vol. I, 1969, § 36. Australia, Belgium, France, Liechtenstein, Luxemburg,
Monaco, Switzerland and Turkey voted against. Australia, Belgium, Liechtenstein, Luxemburg and Switzerland
later became a party to the Vienna Convention:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&id=467&chapter=23&lang=en#14.
263
The reservation can be found at :
http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&chapter=23&Temp=mt
dsg3&lang=en.
264
According to the reservation Belgium is not bound by Article 53 and 64 in relation to States that have not
accepted the compulsory dispute settlement mechanism, towards other States it is.
265
J. VERHOEVEN, “Jus Cogens and Reservations or ‘Counterreservations’ to the Jurisdiction of the
International Court of Justice”, in K. WELLENS (ed.), International Law: Theory and Practice, Essays in
Honour of Eric Suy, Den Haag, Nijhoff, 1998, 205-206.
266
A. LAGERWALL, “Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2311.
267
UN General Assembly Resolution 56/83.
268
Infra, No. 88.

65
and international judicial organs,269 in particular by the International Court of Justice in
Armed Activities on the Territory of the Congo between the Democratic Republic of the
Congo and Rwanda.270 Of course, decisions of international judicial bodies are only
authoritative, but these courts in principle do not make law, but recognize and apply existing
law. As a result, their recognition of jus cogens implies that they consider it as part of general
international law.

B. General (multilateral) treaties

77. The question whether multilateral treaties can be qualified as general international law
is frequently answered in the negative.271 Treaties have not even been considered as a source
of law, but merely of obligations.272 The main reason is that treaties are consensual
instruments which only bind the States party to the conventions. Third States generally neither
derive obligations nor rights from treaties.273 It is this relativity of treaty obligations that
hinders the qualification of treaties as general international law: as it was established above,
general customary international law does not require the consent of all States, which
nonetheless can become obligated by the customary rule if it is accepted by the majority of
States, the only exception being if they can be regarded as persistent objector – a position
which is contested in theory and in any event is difficult to sustain in the reality of
international relations. As a result, if treaty provisions could become part of jus cogens, they
would also bind third States, which would go against the clearly established rule that treaties
do not create rights and obligations for these States. Furthermore, if the norm of jus cogens
would remain within the treaty boundaries, this would contradict the essential nature of jus
cogens as a universal norm.274 Moreover, unlike general customary international law,
multilateral treaties remain subject to reservations and denunciation or withdrawals by the
parties to it.

269
Détermination de la Frontière Maritime (Guinnée-Bissau v. Sénégal), Sentence arbitrale, 31 July 1989,
Revue Générale de Droit International Public, 1990, 234 (at that time Guinée-Bissau was not a party to the
Vienna Convention, but it nevertheless invoked jus cogens to void a treaty which was in its view contrary to jus
cogens, thereby accepting the customary nature of jus cogens); Prosecutor v. Furundžija, Case No. IT-95-17/1-
T, Trial Chamber, Judgment, 10 December 1998, § 153; Inter-American Court on Human Rights, Aloeboetoe et
al. v. Suriname, Reparation and Costs, Judgment, 10 September 1993, Series C, No. 15, § 57; European Court
of First Instance, Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T-306/01,
Judgment, 21 September 2005, European Court Reports 2005, II-3626-3627, §§ 279-281; Id., Kadi v. Council
and Commission, Case T-315/01, Judgment, 21 September 2005, European Court Reports 2005, II-3727-3725,
§§ 228-230.
270
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgement, ICJ Rep. 2006, § 64.
271
Supra, No. 27.
272
G.G. FITZMAURICE, “The Formal Sources of International Law”, in Baron F.M. VAN ASBECK, J. DONNER, et
al. (eds.), Symbolae Verzijl, The Hague, Nijhoff, 1958, 157 et seq.
273
Article 34 Vienna Convention on the Law of Treaties (1969); Articles 35 and 36 of the Convention provide
that third States can be bound by conventions, but they have to consent, consent which is presumed if the
convention establishes a right in favour of third States. Yet, these articles cannot be regarded as an exeption to
the general rule that treaties do not bind third States, since by giving consent the third States are in fact
concluding a treaty with the parties to he convention establishing the right or obligation.
274
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 111-
112.

66
78. The fact that treaties only establish rules for a limited community of the States party
and not for the international community thus entails according to part of the doctrine that they
cannot be regarded as general international law, which is only comprised of customary
international law.275 This finding corresponds with the case law of the International Court of
Justice examined before, where a sharp distinction was drawn between general international
law and treaties. However, this does not lead to the conclusion that treaties have no role to
play in the formation of general international law or norms of jus cogens. Multilateral treaties
which are widely accepted may force third States to change their conduct in conformity with
some treaty provisions while not becoming party to it. Furthermore, it has been recognized
that the wide participation in a treaty may prove that the parties to the treaty regard it as
customary international law, which subsequently becomes binding upon non-parties.276
Moreover, codification conventions in general lay down customary rules, but frequently also
contain rules which are a progressive development in international law, for instance to fill in
gaps in custom. Since the latter category is included in a convention which mostly contains
customary rules, they tend also to become customary international law,277 inter alia because
the whole convention provides for a regime regulating a topic of international law.
Concerning the role of treaties in the field of jus cogens, it has been argued that treaties,
although not the source of jus cogens, are evidence of there existence or that these treaties are
declaratory of peremptory norms.278

79. Despite these negative views on the role of treaties in general international law and jus
cogens, part of doctrine does recognize that treaties can give rise to general international law
and as a result could attain the status of peremptory norms,279 a position I support. First of all,
general international law is not necessarily universal law, but international law that binds the
(overall) majority of States. Whether a norm is part of general international law is in essence
determined ratione subjectorum, or the amount of States obligated by the rule. While in the
past general international law could be limited to customary international law, due to the
bilateralization of treaty relations, modern international law has witnessed the rise of
multilateral treaties aiming to regulate a certain domain of international law ranging from
diplomatic and consular relations to human rights and humanitarian law to economic and
environmental law. Second, many multilateral treaties have attracted wide participation,
sometimes even universal membership as is the case with the four Geneva Conventions and

275
Supra, note 115 and 117.
276
See: North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal Republic of
Germany v. the Netherlands), Judgment, ICJ Rep. 1969, § 73; G.P. BUZZINI, “La théorie des sources face au
droit international général, Réflexions sur l'émergence du droit objectif dans l'ordre juridique international”,
Revue Générale de Droit International Public 2002, 611-612. Although I am sceptical in regard to this
possibility, it might occur if the convention states that it is codificatory of customary international law or if the
State parties state that they consider the provisions of the convention customary international law.
277
Dissenting Opinion Judge SØRENSON, North Sea Continental Shelf Cases (Federal Republic of Germany v.
Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 245; H. TORRIONE,
L’influence des conventions de codification sur la coutume en droit international public, Fribourg, Éditions
universitaires, 1989, 86 et seq.; on the other hand the Court itself recognized that conventional norms could give
rise to customary norms, but that this is not lightly presumed to be attained: Ibid, § 71.
278
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 112-
113; U. SCHEUNER, “Conflict of Teaty Provisions with a Peremptory Norms of General International Law”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1969, 30.
279
See supra, note 116 ; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 184-185.

67
the Charter of the United Nations, and could be said to thrive as well as customary rules. One
could object that these multilateral treaties are a codification of customary international law or
have rapidly become customary international law. However, not all multilateral treaties can be
said to reflect customary international law, and even codifying multilateral treaties often
contain progressive developments of international law;280 furthermore, codification often
entails a specification of the customary rule, which implies a certain modification of the
customary rule.281 As a result, States will start to use the codification text as their starting
point for their practice and hence changing the previous more ambiguous customary rule.
Moreover, even if the preamble of a multilateral treaty would establish that the rules of the
treaty reflect customary international law, this in first instance merely binds the State parties.
In this respect, very widespread participation may evidence the existence of a rule of
customary international law. Nevertheless, most treaties are silent on the issue and it is quite
conceivable that States party to multilateral conventions do not regard the conventional
clauses as customary international law or as having become so: they may consider their
relations only regulated by the multilateral convention, in whose absence they would be free
to adopt whatever conduct they like. In this respect, even if the latter multilateral conventions
attract very widespread participation, this does not allow one to conclude that the rules of the
convention or the convention as a whole have become customary law. Subsequently, the
argument of BUZZINI that a very widespread participation in a convention might lead to the
conclusion that the convention in globo is part of general (or customary) international law, or
in any event the locus where these rules can be found,282 must be rejected, since such
participation merely expresses the intention to be bound by the multilateral treaty. This will
only be the case if the parties express their opinio juris in this regard. Nonetheless, the
argument neatly demonstrates the problems theorists defining general international law as
customary law have with multilateral treaties: in order to avoid the conclusion that
multilateral treaties belong to general international law, despite their importance in
contemporary international law, they need to have recourse to an overly flexible conception of
custom, which could already be generated by a widespread and representative participation in
the convention. Yet, even if a conventional norm becomes customary international law
outside the convention, this does not mean that the parties to the convention are besides the
conventional rule also bound by a customary norm. It is possible that third States start to act
in accordance with a treaty provision and create among themselves a rule of customary
international law. However, the parties to the treaty may not share this opinio juris sive
necessitatis and consider their relations to be solely governed by treaty law. The consequence
is the coming into existence of a mixed rule, a treaty rule for the parties to the convention and
a customary rule for third States with the same content.283 As a result, the whole international

280
R.R. BAXTER, “Treaties and Custom”, Recueil des Cours 1970-I, 40; M.E. VILLIGER, Customary
International Law and Treaties, Dordrecht, Nijhoff, 1985, 120-121.
281
Dissenting Opinion Judge SØRENSEN, North Sea Continental Shelf Cases (Federal Republic of Germany v.
Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 242-243; R.Y.
JENNINGS, “The Progressive Development of International Law and Its Codification”, British Yearbook of
International Law 1947, 302; M.E. VILLIGER, Customary International Law and Treaties, Dordrecht, Nijhoff,
1985, 123.
282
G.P. BUZZINI, “La théorie des sources face au droit international général, Réflexions sur l'émergence du droit
objectif dans l'ordre juridique international”, Revue Générale de Droit International Public, 2002, 612.
283
G.I. TUNKIN, “Is International Law Customary Law Only?”, European Journal of International Law 1993,
539. See also: G. ABI-SAAB, “Cours général de droit international public”, Recueil des Cours 1987-VII, 203,

68
community may be bound by a certain rule, although this flows from different sources, treaty
and custom. To deny such rules the predicate “general international law”, despite their
universal binding character, because the majority of States is merely bound by the treaty
provision, is endowing general international law with a very restricted and unrealistic
interpretation.

80. Secondly, it is true that treaty provisions can be subject to denunciation and withdrawal
or reservations and that this may hinder their qualification as general international law.
However, denunciation and withdrawal is not always explicitly or implicitly foreseen in
treaties and hence not possible.284 Furthermore, even if possible, this does not bar their
qualification as general international law, since general international law is in the first place
determined ratione subjectorum: if the overall majority of States is bound by the treaty and no
withdrawal or denunciation occurs, nothing would prevent the qualification of conventional
provisions as general international law. Moreover, it has to be reminded that general
international law is not static, but may evolve and become replaced by a new rule of general
international law, the former rule remaining a norm of particular international law. Hence,
even if withdrawals and denunciations occur so that the rule loses its general character, this
would not affect the previous qualification of the rule as part of general international law. The
issue of reservations also does not bar the qualification of treaty provisions as general
international law. The treaty itself might provide that reservations are not allowed or not
permitted for certain provisions. Furthermore, even if reservations are allowed, some
reservations might be prohibited if they do not respect the object and purpose of the
convention.285 Also, it might be that a provision does not suffer from reservations although
this is allowed, or that reservations concerning a certain provision are gradually retracted, so
that the provision comes to bind the overall majority of States. In this respect, the same
remark could be made as that in the field of denunciation and withdrawal: general
international law is not static, what in the end matters is whether the treaty provision actually
binds the overall majority of States and the possibility of future reservations does not hinder
the qualification of a treaty provision as general international law at a certain moment in time.
Again, there is no requirement that general international law has to be unchangeable, over
time it may be subject to changes ratione subjectorum. It might be true that general
international law on the basis of treaties can be more easily changed than general international
law based on custom, but this does not alter the fact that at a certain moment, a treaty may
bind the overall majority of States regulating their behaviour in the absence of any other
international rule.

where he describes that a certain rule of general international law can have different elements coming from
different sources building the rule of general international law, where in the end it does not matter anymore
from which particular source the elements came. KADELBACH is of the opinion that a norm of jus cogens will
typically have a mixed character: S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992,
186.
284
Article 56 Vienna Convention on the Law of Treaties (1969); it could be argued that treaties containing
peremptory norms are in fact treaties from which no implicit denunciation is allowed if not expressly
prohibited: R. KOLB, “The Formal Source of Ius Cogens in Public International Law”, Zeitschrift für
öffentliches Recht 1998, 86, note 110; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties,
Amsterdam, North Holland, 1976, 71.
285
Article 19 Vienna Convention on the Law of Treaties (1969); in fact it could be argued that if a treaty lays
down rules of jus cogens, it would be against the object and purpose of the treaty to make reservations against
the provisions contained therein.

69
81. As a result, conventional norms might constitute general international law, as much as
custom, since they can bind the overall majority of international subjects. However, this
conclusion does not entail that treaties are general international law which could give rise to
jus cogens norms. A possible objection remains the relativity of treaties: by accepting that
general (multilateral) treaties can lead to jus cogens norms, third States also become bound by
a treaty rule to which they have not consented. If parties to a treaty recognize provisions of
the treaties as jus cogens, this as such can only bind the parties to the treaty and not third
States, and if one tries to enforce this jus cogens norm to third States one is violating the
principle of the relativity of treaties. Consequently, the argument of pacta tertiis nec nocent
nec prosunt needs to be discarded. Firstly, it has to be remarked that the argument is in fact a
variation of the universality of general international law argument. General international law
limited to customary international law binds all States, even States which have not consented
because consent is a sufficient, but not a necessary requirement for the binding nature of a
particular custom. Treaties on the other hand are only applicable to a limited group of States
and hence “special law”. However, this begs the question why treaties can only be special
law. What is the case with treaties which are (almost) universally ratified? There might not be
that many treaties, but they do exist, and are moreover relevant for jus cogens norms; the four
Geneva Conventions, the Charter of the United Nations and the Convention on the Rights of
the Child are a case in point. Second, the relativity of treaties is not absolute. Besides
conventions which create rights and duties for third States, treaties can create binding effects
erga omnes because they establish objective regimes or create entities whose existence can be
opposed to third States. The most notable examples of the first category are border treaties:
these treaties are as such only binding between States but they create legal effects towards
other States; the established border can even survive the treaty.286 In the same category one
can mention demilitarization treaties and treaties regulating rivers or certain areas, for
instance Antarctica. An example of the second category could be the creation of States by
treaties or the creation of international organizations.287 The International Court of Justice has
in any event recognized that the United Nations possesses objective legal personality which is
thus opposable to third States.288 However, one could perfectly argue that these instances in
practice hardly give rise to norms of jus cogens. Therefore, as a last argument I submit that
the relativity of treaties is not as such concerned with whether multilateral treaties are part of
general international law, but with the requirement of acceptance and recognition by the
international community of States as a whole. Indeed, it is this element of the definition of jus
cogens which bestows a norm of general international law with its peremptory character.
Whether this requires consent by all the States in the international community will be
examined below, but for now it suffices to state that even if consent by all States is required, it
is theoretically conceivable that all States do ratify a convention in which they sum up the
norms of jus cogens. Nevertheless, this requirement is a different requirement than the
condition that the norm belongs to general international law. The requirement of “general
international law” only delimitates which norms ratione subjectorum could be retained and
which may subsequently become jus cogens by the acceptance or recognition of the

286
P. DAILLIER and A. PELLET, Droit international public, Paris, LGDJ, 2002, 250-251; for the enduring
validity of frontier conventions: Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, ICJ Rep.
1994, § 73.
287
P. DAILLIER and A. PELLET, Droit international public, Paris, LGDJ, 2002, 51.
288
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Rep. 1949, 185.

70
international community of States as a whole. As demonstrated before, there is no prima facie
reason why treaty provisions which are accepted by the overall majority of States could not
belong to general international law. Furthermore, once accepted and recognized by the
international community of States, it no longer matters what the precise source – treaty,
custom or both – was, since the norm will be binding upon all States because of its imperative
character and not because of its particular source.289

82. A last argument against treaties as a source of jus cogens is that due to the nature of jus
cogens treaties can only be declaratory, but not constitutive of norms of jus cogens.290 Since
jus cogens transcends the will of States and instead flows from predominant moral and social
values of the international community, treaties cannot create jus cogens since they depend on
the will of the parties; they can merely lay down pre-existing norms of jus cogens. As a result
treaties cannot be the immediate source of peremptory norms. This assertion is correct in so
far that neither treaty nor custom are the direct source of jus cogens: they are only capable of
creating norms of general international law, which subsequently through recognition or
acceptance by the international community of States receive the predicate of jus cogens.
Consequently, something additional is needed next to the law-creating processes of treaty and
custom, which only result in conventional or customary general international law. This having
been said, a rule of general international law, whether conventional or customary law, is a
necessary prerequisite for a rule of jus cogens and in this respect nothing would prevent a
completely new treaty provision from becoming a norm of jus cogens through the acceptance
and recognition of the State community even if it cannot be traced back to an existing socially
or morally important value, but instead changes existing law which reflects these values. In
this respect, the International Law Commission envisaged that multilateral treaties were
perfectly capable of modifying existing peremptory norms.291 This not only confirms that
treaties can create new peremptory norms and thus are not merely declaratory of pre-existing
customary norms, but also that norms of jus cogens must not necessarily flow from some
moral consensus on the importance of certain values in the international community since it is
rather awkward to argue that changing existing peremptory norms (by treaty or custom) flows
from pre-existing moral consensus on the importance of certain values. The moral consensus
in the international community may change, but then the jus cogens norms would flow from
this changed moral consensus directly and not from a new norm of customary or conventional
law. Consequently, requiring a treaty or custom changing the pre-existing rule of jus cogens
would be superfluous, which goes against the authoritative opinion of the International Law
Commission. This does not entail that social and moral values have no role to play in the
creation of jus cogens: if a certain society finds certain values of the utmost importance, it will
adopt them into law and attach certain consequences if they are not respected. But this does
not mean that social or moral values immediately have legal consequences in the absence of
their incorporation into the law, or in any event, it will require a rule of law establishing that

289
B. SIMMA, “From Bilateralism to Community Interest”, Recueil des Cours 1994-IV, 292; R. KOLB, “The
Formal Source of Ius Cogens in Public International Law”, Zeitschrift für öffentliches Recht 1998, 80.
290
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 112-
113; U. SCHEUNER, “Conflict of Teaty Provisions with a Peremptory Norms of General International Law”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1969, 30.
291
“Report of the International Law Commission on the Work of Its Eighteenth Session”, Yearbook of the
International Law Commission 1966, Vol. II, 248, § 4.

71
these social or moral values have some legal consequences.292 In the field of international law,
if social or moral values are changing, this will lead to new State practice and an opinio juris
sive necessitatis based on the importance of the social and moral values replacing the old
customary rules293 or to the adoption of a multilateral treaty reflecting the change in social and
moral values. It will be these customary and treaty rules which subsequently become jus
cogens.

83. Concluding, general multilateral treaties can be regarded as part of general international
law, leading eventually to peremptory norms. Since general international law is determined
ratione subjectorum, nothing prevents one to consider a treaty which has been ratified by the
overall majority or universality of States as general international law, especially if the treaties
do not establish rights and obligations between the parties, but objective or non-bilaterizable
treaty obligations, for instance in the case of human rights or humanitarian law. Furthermore,
the argument of the relativity of treaties does in the first place not concern their qualification
as general international law, but deals with the second element of Article 53 Vienna
Convention on the Law of Treaties, requiring an acceptance and recognition of the
international community of States as a whole. It is this aspect which will make a conventional
norm jus cogens or not and binding upon non-party States. Consequently, the question
whether multilateral treaties can be part of general international law does not involve the
pacta tertiis nec nocent, nec prosunt principle, which was the major argument against
multilateral treaties being part of general international law. Therefore, nothing prevents one
from regarding conventional norms as part of general international law, which if recognized
or accepted by the international community of States as a whole become jus cogens norms. In
this respect there is no difference with general customary international law, which equally has
to fulfil this requirement. As a result, both custom and treaties could be regarded as sources
which give rise to general international law.

C. General principles of law

1. Introduction

84. The Statute of the International Court of Justice recognizes in Article 38 (1)(c) general
principles of law recognized by civilized nations as one of the elements the Court may apply
in rendering its decision. Yet, despite its express inclusion in the Statute of the World Court
and its predecessor, the “general principles of law recognized by civilized nations” have
generated much doctrinal debate. First, it has been questioned whether the general principles
of law are a separate source of international law. Especially, but not exclusively, Soviet

292
J. RAZ, “Legal Principles and the Limits of Law”, Yale Law Journal 1971-1972, 848-849; W.J. WALUCHOW,
“Herculean Positivism”, Oxford Journal of Legal Studies 1985, 192-198.
293
As established before, supra, Nos. 65 et seq, opinio juris sive necessitatis implies a legal conviction that a
certain conduct is required by a rule of customary international law or should become customary international
law. However, there are various reasons why States adopt the position that certain conduct is required by
customary international law. It might well be that States regard a certain rule as customary international law
because of its moral or social importance.

72
writers tried to assimilate them with other sources of international law.294 More in general,
legal positivists have regarded this category with suspicion, because they are not necessarily
based on the consent of States. Yet, this point of view is mistaken since it would entail that
Article 38 (1)(c) is superfluous and without content, which runs counter to the normal
interpretation of treaty clauses requiring that a clause should be interpreted in such a way that
it is the most effective: ut res magis valeat quam pereat.295 If one wishes to retain the view
that general principles of law are to be reduced to conventional or customary principles, one
consequently needs to have strong arguments. Yet, authors refusing to grant the quality of
source of law to the general principles of law base their position on the dogmatic view that
international law flows from the will or consent of States.296 Nevertheless, as indicated above,
States can consent to a source of international law which is not based on consent at all. At the
very least, by accepting the Statute of the International Court of Justice, States have accepted
that the Court can rely on these general principles next to treaties and custom, even if the
basis of these general principles cannot be found in consent of States. This line of reasoning
has indeed been followed: some authors have argued that the International Court of Justice or
another dispute settling body can only apply these principles if they are entitled to do so by
their constitutive instrument.297 However, there exist many examples of arbitral panels which
had recourse to general principles of law without a specific authorisation in the compromis
and without any objections of the States parties to the dispute.298 Furthermore, the only

294
G.I. TUNKIN, General Theory of International Law, London, George Allen & Unwin, 1974, 199; but see also:
L. KOPELMANAS, “Quelques réflexions au sujet de l’article 38, 3°, du Statut de la Cour permanente de Justice
internationale”, Revue Générale de Droit International Public 1936, 293-295 and 303, who comes to the
conclusion that general principles of law are in fact an empty category; more recently: B. CONFORTI, “Cours
général de droit international public”, Recueil des Cours 1988-V, 77-80, considering general principles of law as
a sort of particular kind of custom.
295
J. BASDEVANT, “Règles générales du droit de la paix”, Recueil des Cours 1936-IV, 498; B. VITANYI, “Les
positions doctrinales concernant le sens de la notion de ‘principes généraux de droit reconnus par les nations
civilisées’”, Revue Générale de Droit International Public 1982, 70. For the principle of effective interpretation:
Acquisition of Polish Nationality, Advisory Opinion, PCIJ Publ., Series B, No. 7, 16-17; Exchange of Greek and
Turkish Populations, Advisory Opinion, PCIJ Publ., Series B, No. 10, 25; Free Zones of Upper Savoy and the
District of Gex (France v. Switzerland), Order, PCIJ Publ., Series A, No. 22, 13; Corfu Channel Case (The
United Kingdom v. Albania), Merits, Judgment, ICJ Rep. 1949, 24; Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania (Second Phase), Advisory Opinion, ICJ Rep. 1950, 229 (pointing out that the
principle of effective interpretation may not go against the letter and the spirit of the text); H. GUTTIÈREZ POSSE,
“La maxime ut res magis valeat quam pereat (interpretation en function de ‘l’effet utile’)”, österreichisches
Zeitschrift für öffentliches Recht 1972, 229-254; the International Law Commission considers this principle of
interpretation part of an interpretation in good faith: “Draft Articles on the Law of Treaties with Commentaries”,
Yearbook of the International Law Commission 1966, Vol. II, 219.
296
Historically, the denial of the existence of general principles of law by Soviet doctrine equally followed from
the postulate that general principles common to bourgeois and socialist States cannot exist, due to the different
economic and social system. Therefore, such general principles could only bind States if incorporated in treaties
or custom: G.I. TUNKIN, General Theory of International Law, London, George Allen & Unwin, 1974, 199-203.
297
H. KELSEN, Principles of International Law, London, Holt, Rinehart and Winston, 1967, 438-440; K. STRUPP,
“Le droit de juge international de statuer selon l’équité”, Recueil des Cours 1930-III, 451-454; L. KOPELMANAS,
“Quelques réflexions sur l’article 38, 3° du Statut de la Cour permanente de Justice”, Revue Générale de Droit
International Public 1936, 290; H. KELSEN, “Théorie de droit international public”, Recueil des Cours 1953-III,
121-122.
298
Russian Indemnity (Russia v. Turkey), Award of 11 November 1912, Reports of International Arbitral
Awards, Vol. XI, 438 et seq; Abu Dhabi Arbitration (1951), International and Comparative Law Quarterly
1952, 251; R. QUADRI, “Cours générale de droit international public”, Recueil des Cours 1964-III, 349-350; A.

73
change of Article 38 (1)(c), the introduction of the wording “whose function is to decide in
accordance with international law such disputes as are submitted to it”, reinforces the idea that
the general principles of law are a source of international law, for if the general principles of
law are merely considered as an authorization of the international judge to have recourse to
these general principles of law, which normally do not belong to international law, then the
judge is not applying international law, but something else, be it national law or natural law.
Another argument as to the separate existence of general principles of law can be drawn from
the preamble of the Charter of the United Nations which speaks of “… obligations arising
from treaties and other sources (emphasis added) of international law…”. Thus besides
treaties, there have to exist at least two other sources of international law, and these can only
be custom and general principles of law.299

85. Second, even among authors who accept the existence of general principles of law as a
separate category of norms, there are different conceptions as to the meaning and importance
of general principles of law. In the following sections it is not my purpose to discuss
extensively doctrinal writings in this regard, a study which has already been undertaken in an
excellent manner by VITANYI.300 Instead, I will highlight some of the main interrelated
questions in respect of the general principles of law recognized by civilized nations, namely
whether they are a separate source of international law, what their content is and what
constitutes their function. At this point I would already like to point out that the wording of
“recognized by civilized nations” is virtually unanimously accepted as a relic from the past,
unsuitable in an era where all States are member of the United Nations and thus “civilized”.
Yet, the notion of civilized nations did as such not refer to States, but to the legal systems of
peoples excluding primitive legal systems.301 Understood in this sense and solely in this
sense, the concept of civilized nations might be retained.
Considering the significant disagreement on the source of general principles of law the
inquiry will commence with a theoretical outline on the concept of legal principles. In legal
theory principles are deemed to have different characteristics and functions than rules. These
differences might explain to a certain extent the difficulties existing with this source of law.
The insights gained will then be used when discussing the different conceptions of general
principles of law.

VON VERDROSS, “Les principes généraux du droit applicables aux rapports internationaux”, Revue Générale de
Droit International Public 1938, 47.
299
See: A. VERDROSS, Die Quellen des universellen Völkerrechts, Eine Einführung, Freiburg, Rombach, 1973,
126.
300
B. VITANYI, “Les positions doctrinales concernant le sens de la notion de ‘principes généraux de droit
reconnus par les nations civilisées’”, Revue Générale de Droit International Public 1982, 49-116.
301
B. CHENG, “The Meaning and Scope of Article 38 (1) (c) of the Statute of the International Court of Justice”,
Transactions of the Grotius Society 1952, 131; H. WALDOCK, “General Course of International Law”, Recueil
des Cours 1962-II, 65; H.W.A. THIRLWAY, “The Sources of International Law”, in M.D. EVANS (ed.),
International Law, Oxford, Oxford University Press, 2006, 131. See also: the Abu Dhabi Arbitration (1951),
International and Comparative Law Quarterly 1952, 251, where the arbitrator was of the opinion that the
existing legal system of Abu Dhabi was inapt to apply to modern commercial agreements, such as oil
concessions. Instead, the arbitrator applied English law which was in his opinion firmly rooted in reason.

74
2. The concept of principles

86. Legal theory classically distinguishes “principles” from “rules”. The best-known theory
on principles is that of DWORKIN. DWORKIN uses a qualitative criterion to differentiate
between rules and principles: rules have an all-or-nothing character. If two rules conflict, both
cannot be valid. Principles on the other hand do not perish if they conflict with other
principles since when they conflict, the principle which is not applied continues to exists.
Principles have a certain weight: if in a particular case two principles conflict, the one with
the more weight will lead to the solution; however, this does not mean that the principle will
always outweigh the other principle, since if circumstances change so may be the weight of
the principles.302

87. DWORKIN’s theory has attracted some major criticism by legal scholars who consider
principles as relatively more general norms than rules since principles can be concretized –
thus becoming more rule-like – by individuation of laws, or the framing of complete laws.303
On this account principles should be regarded as an abstraction of some concrete rules which
can be reduced to a general principle. RAZ strongly criticizes DWORKIN for failing to take into
account the individuation of laws in his theory. He points out that some principles to which
DWORKIN is referring (e.g. freedom of speech, freedom of contract) are in fact abbreviations
of a set of rules or one complex rule.304 Furthermore, it is simply not correct to state that rules
need to have an all-or-nothing character because it is conceivable that in particular
circumstances a rule which would ordinarily govern the situation is superseded by another
rule without the invalidation of the first rule. In such a case the ordinary rule is amended with
an exception. Of course, one could claim that the rule which normally applies to the situation
is not accurately stated or individuated, but individuation does not entail that all the
exceptions to a rule – especially general exceptions – need to be stated.305 Concerning the
weight of principles RAZ points out that rules and principles do have weight, but they behave
differently in case of conflict: rules are only settled on the basis of their relative importance,
principles also involve the assessment of the consequences for their goals if a certain course
of action is followed. Nevertheless, this is neither a result of a logical difference between rules
and principles nor a result of a defining characteristic (i.e. qualitative criterion) of principles
for in most instances if rules and principles conflict with each other, they are either both
treated as principles or either both regarded as principles.306 Nonetheless, despite the criticism
of DWORKIN’s distinction between rules and principles RAZ is not challenging the distinction
between these two type of norms, but the criterion DWORKIN advances for making the
distinction, for according to him rules and principles are distinct because of the character of
the norm-act prescribed. Rules are rather specific, while principles are normatively more
unspecific and can thus be performed in various ways on different occasions without going
against the principle.307 This logical distinction can explain certain different features of rules
and principles, for instance, that because of this distinction, principles can be used to justify

302
R. DWORKIN, Taking Rights Seriously, Cambridge, Mass., Harvard University Press, 1978, 24-28.
303
J. RAZ, “Legal Principles and the Limits of Law”, Yale Law Journal 1971-1972, 827-828; G.C. CHRISTIE,
“The Model of Principles”, Duke Law Journal 1968, 649.
304
J. RAZ, “Legal Principles and the Limits of Law”, Yale Law Journal 1971-1972, 828-829.
305
Ibid., 831-832.
306
Ibid., 833-834.
307
Ibid., 838-839.

75
rules, but not the opposite. Yet, RAZ has to admit that the relative generality of principles
cannot alone explain certain important aspects of principles, such as the use of principles to
interpret laws, as grounds for changing laws, as grounds for particular exceptions to laws, as
grounds for making new laws and as the sole ground for action in particular cases.308
Although parts of the criticism of DWORKIN’s theory, especially concerning the importance of
individuation, is correct, in the end the relative generality of principles is insufficient to
explain the difference between principles and rules.

88. ALEXY offers a more subtle theory of principles than DWORKIN. For ALEXY the
distinction between principles and rules is qualitative in nature, which means that a norm is
either a principle or a rule. In his view principles are “optimization requirements”, or “norms
which require that something be realized to the greatest extent possible given the legal and
factual possibilities”.309 They can be fulfilled in various degrees, but the level of fulfilment
does not solely depend on factual possibilities, but also on other legal principles and rules
which interact with the principles putting it aside or qualifying it in certain contexts. In other
circumstances the principle might prevail. Rules on the other hand can only be complied with
or not: one either lives up to the norm contained in the rule or does not. Consequently, rules
make legally and factually fixed determinations.310 At first sight, this closely resembles
DWORKIN’s theory that rules have an all-or-nothing character and principles weight. Yet,
although ALEXY agrees with DWORKIN that one of the main distinctions between principles
and rules is the way collisions are solved, he is not of the opinion that rules necessarily have
an all-or-nothing character. He accepts that when two rules collide, it does not always lead to
the conclusion that one of them is invalid. Instead, one of the rules can be amended by an
exception that in certain situations another rule should prevail. Furthermore, it is also possible
to include exceptions in a rule based on principles. Since the inclusion of exceptions based on
principles cannot be limited, rules will lose their definitive character and thus, like principles,
prescribe merely prima facie how to comply with the rule, but unlike principles they are not
automatically set aside if the principle supporting the rule is outweighed by a more important
principle.311 Conflicts between principles which have no absolute priority over each other, are
solved through the formulation of a conflict-rule by the inclusion of a precedence clause
describing the circumstances in which a principle has precedence over another principle.312
The conflict between principles thus becomes individuated in separate rules, but it would be
wrong to hold that this entails the elimination of the quality of principles since the precedence
of principles seldom can be completely captured in precedence clauses. Principles thus remain
optimization requirements. This implies that principles need to be balanced since the first
principle will have precedence over the second principle in certain circumstances, while the
second principle will have precedence over the first principle in other circumstances.313
Finally, although for ALEXY principles are relatively more general than rules, this does not
mean that the distinction between rules and principles can be based on generality alone. First,

308
Ibid., 839-842.
309
R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010, 47.
310
Ibid., 48.
311
Ibid., 57-58.
312
Ibid., 50-52; in case there is a legal consequence attached to the precedence of one principle over another, for
instance the invalidity of a law in the field of constitutional law, the complete set of precedence clauses will
form the substance of a rule which lays down the legal consequence of the principle: Ibid. 53-54.
313
Ibid., 52-53.

76
there are rules which are very general, but cannot be regarded as principles because they are
not optimization requirements: their scope may be unclear but, when determined, they need to
be applied. Second, principles remain general as long as they have not been factually and
legally qualified, but if they have, the principle will be concretized in a differentiated system
of rules that derive from it and are supported by the principle.314 What in the end matters, is
that principles are too rich to be completely individuated since their application in a factual
case depends not only on facts but also on other legal norms, be they principles or rules. This
leads to an almost infinite possibility of situations in which they have to be individuated. In
ALEXY’s view principles are more than the sum of their known individuations and continue to
have an independent role to play in a legal system. His theory of principles as optimization
requirements duly takes into account the criticism of RAZ that the concept of principles is
often wrongly used as a generalization of some more specific rules. In ALEXY’s opinion such
generalizations would not be qualified as principles, since the generalization would be
comprised of different rules or a very complex rule. On the other hand, ALEXY offers an
explanation to RAZ’s problem that in the end generality does not explain the difference
between rules and principles. Since the scope and application of a principle rest on facts and
other legal norms, principles, although to a certain extent individuated, remain relevant
beyond their individuation to interpret laws, as grounds for changing laws, as grounds for
particular exceptions to laws, as grounds for making new laws and as the sole ground for
action in particular cases if a new factual and legal situation arises.

3. General principles of law as derived from municipal legal systems

89. A first group of scholars equates general principles of law with principles derived from
national legal systems. This point of view finds support in arbitral decisions315 and in the
preparatory works of the Statute of the Permanent Court of International Justice. During
debates in the Advisory Committee of Jurists, the issue of non liquet – the refusal to
pronounce because of non-existence of law, controversiality of the law or uncertainty in the
law316 – came to the fore. What should the future Court do when it stumbled upon the absence
of conventional or customary rules in settling a dispute? It was generally agreed that the Court
could not pronounce a non liquet, since this would be a negation of its essential task, namely
to settle disputes brought before it. The prohibition of non liquet does exist in domestic law,
but one could argue that in the international sphere it has even more significance since there is
no universal court with compulsory jurisdiction. Therefore, if States aim to settle their
disputes by way of judicial settlement, they need to consent to the jurisdiction of the Court or
create arbitral panels with the mission to settle certain disputes. However, if these instances
would declare a non liquet because of lacunae in conventional or customary law, they would
disregard the consent of the parties to the dispute to settle the issue by a binding decision of a

314
Ibid., 59-60.
315
Russian Indemnity (Russia v. Turkey), Award of 11 November 1912, Reports of International Arbitral
Awards, Vol. XI, 442; Abu Dhabi Arbitration (1951), International and Comparative Law Quarterly 1952, 251;
Lena Goldfields Ltd. v. U.S.S.R, Award of 3 September 1930, Cornell Law Quarterly 1950, 50-51.
316
H. LAUTERPACHT, “Some Observations on the Prohibition of ‘Non Liquet’ and the Completeness of the Law”,
in Baron F.M. VAN ASBECK, J. DONNER, et al. (eds.), Symbolae Verzijl, The Hague, Nijhoff, 1958, 199.

77
judicial organ.317 Therefore, in the case of lacunae in customary international law or
conventional law, judicial bodies need to resort to other means to settle the dispute. The
importance of the prohibition of non liquet might explain the acceptance by States of
decisions of arbitral panels based on general principles of law when this category was not
provided for in the compromis. Since they had agreed to settle their disputes in this way, they
expected a decision on the issue before the panel, even in the absence of customary or
conventional norms. Thus it is safe to conclude that the prohibition of non liquet was firmly
entrenched in international law.318

90. Despite the general acceptance of the prohibition of non liquet, this did not entail a
general recognition of a third source of international law, besides treaties and custom.319
Instead of national law one could have recourse to principles of justice and equity, as
evidenced by Article 7 of the Draft Convention relative to the Establishment of the
International Prize Court. Nevertheless, the need for a third source was felt and in the first
project of the Statute of the Permanent Court of International Justice Baron DESCAMPS
proposed to include next to treaties and custom, the category of “rules of international law as
recognized by the legal conscience of civilized nations”, a proposal which was combatted by
ROOT, supported by Lord PHILLIMORE and LODER, because it disregarded the freedom of
States to determine the content of international law and was too subjective in nature. In the
end, ROOT and Lord PHILLIMORE proposed the notion of “general principles of law
recognized by civilized nations”, adding that these principles are rules recognized by all
civilized nations in foro domestico.320 The formula was accepted by the Committee and, in
particular, by Baron DESCAMPS.321

91. From the foregoing it might be concluded that general principles of law at least include
legal principles derived from national legal systems, transposed to the international legal
system in order to fill in lacunae in international law. This point of view has certain
consequences. First, the source of general principles of law is a subsidiary source which only
comes in operation if a lacuna is determined. Second, its function, the avoidance of non liquet,
has been criticized because it implies that international law is not a complete legal system.
Indeed, one of the arguments against the prohibition of non liquet is that it presupposes that
the international legal system has lacunae, while the international legal system is hold to be de
jure complete: everything which is not obliged or prohibited, is permitted.322 Lacunae are thus
logically impossible. This point of view departs from a voluntarist conception of international
law. States are sovereign and this sovereignty can only be limited by rules which they accept.
The view finds some support in the case law of the Permanent Court of International Justice
and the International Court of Justice. In S.S. Lotus, the Court held that the rules of law
binding upon States emanated from their own free will and that restrictions upon the

317
P. WEIL, “The Court cannot conclude Definitely…. Non Liquet Revisited”, Columbia Journal of
Transnational Law 1998, 114-116.
318
H. LAUTERPACHT, “Some Observations on the Prohibition of ‘Non Liquet’ and the Completeness of the Law”,
in Baron F.M. VAN ASBECK, J. DONNER, et al. (eds.), Symbolae Verzijl, The Hague, Nijhoff, 1958, 205-206.
319
P. GUGGENHEIM, “Contribution à l’histoire des sources du droit des gens”, Recueil des Cours 1958-II, 74.
320
Ibid. 76-77.
321
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
138.
322
H. KELSEN, Principles of International Law, London, Holt, Rinehart and Winston, 1967, 438-440.

78
independence of States could not be presumed, adding that every State remained free to adopt
the principles which it regarded as best and most suitable.323 Similarly, in Haya de la Torre
the International Court of Justice found that the asylum convention did not provide a clear
answer to the issue of termination of a granted asylum, and therefore, it was up to the parties
in the dispute to settle the issue on the basis of considerations of convenience or political
expediency.324 Yet, this argument does not bar the existence of non liquet in international law.
First, it could be doubted that the said rule exists. In the advisory opinion on the Legality of
the Threat or Use of Nuclear Weapons the Court held that it could not conclude definitely
whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme
situation of self-defence.325 This is a non liquet, but the Court did not adopt the principle that
everything which is not prescribed, is permitted. Second, even if the rule “everything which is
not prescribed is permitted” did exist in international law, the dispute settling function of
international courts requires them to decide the issue if necessary. It could perfectly be that
the conduct in question, although permitted by international law, forms the core matter of the
dispute, and that a decision merely recognizing the permissibility of the conduct does not
settle the issue. Outside the framework of judicial dispute settlement, the general rule could
apply.326 Third, the prohibition of non liquet is not hostile to the concept of international law
as a complete legal system, since it entails that legal lacunae, if they arise, are filled in and
resolved in a legal matter, i.e. by law. Consequently, the prohibition of non liquet means that
from a judicial standpoint the law is complete. Outside this perspective a non liquet may be
pronounced as is evidenced by the above-mentioned advisory opinion on the Legality of the
Threat or Use of Nuclear Weapons: in the framework of an advisory opinion it could well be
desirable that the Court gives the current state of affairs in international law, instead of
pronouncing on the issue.327

92. Another issue to be addressed is the role of the judge. Is the International Court of
Justice creating new rules of international law or is it merely applying existing norms of
international law? Before going to the discussion on this question, I will first turn to the issue
how these general principles of law are identified. In short, it concerns principles which can
be found in the generality of national legal systems. This does not entail that each and every
domestic legal system is investigated, rather, the judges of the Court, which pursuant to
Article 9 Statute of the International Court of Justice represent the principal legal systems,

323
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 18-19.
324
Haya de la Torre Case (Columbia v. Peru), Judgment, ICJ Rep. 1951, 80-81.
325
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 105, 2E. Furthermore,
some amongst the judges doubted the applicability of the Lotus doctrine: Declaration Judge BEDJAOUI, Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, §§ 11-15; Dissenting Opinion
Judge WEERAMANTRY, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996,
494-496; contra: Separate Opinion Judge GUILLAUME, Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Rep. 1996, 291.
326
ANZILOTTI was of the opinion that before the Permanent Court of International Justice in case of absence of
conventional or customary law, the Court had to apply general principles of law, and only if they could not
provide for a solution the general rule of “whatever is not prohibited is permitted” would apply. Outside the
Court, the general of “whatever is not prohibited is permitted” is applicable: D. ANZILOTTI, Cours de droit
international, Vol. I, Paris, Sirey, 1929, 116-119.
327
Declaration Judge VERESHCHETIN, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ
Rep. 1996, 279-280; P. WEIL, “The Court cannot conclude Definitely…. Non Liquet Revisited”, Columbia
Journal of Transnational Law 1998, 117.

79
will examine their own legal system or legal family and if they find a similar general principle
in these systems, this would suffice to speak of a general principle of law.328 Of course, even
if one narrows down the examination in this way, no legal system will have identical rules,
but what is important is that one deduces from the specific national rules certain abstract legal
principles underlying these specific rules.329 If such a principle is recognized, then it is not
automatically transposed to the international system. To quote Lord MCNAIR:

“The way in which international law borrows from this source is not by means of
importing private law institutions ‘lock, stock and barrel’, ready made and fully
equipped with a set of rules… [T]he true view of the duty of international
tribunals in this matter is to regard any features of terminology which are
reminiscent of the rules and institutions of private law as an indication of policy
and principles than as directly importing these rules and institutions.”330

The judges will have to examine what the policy and underlying principles of the
domestic institutions are and from this infer whether the identified general principle could
equally be applied at the international level. From this it becomes clear that the International
Court of Justice has a huge impact in identifying the general principles of law. Some would
even attribute a legislative function to the Court in this regard.331 There is certainly an element
of truth in this point of view. For, it is the Court which first determines which principle it will
apply, the scope of the principle by looking at national legal systems, making abstractions of
the specific rules, examining the underlying policies and principles, the suitability of these
principles as to international legal system and in the end formulates a new rule of international
law which could be applied to the case at hand in order to avoid a non liquet. Consequently,
according to this representation of the identification of general principles of law, the concept
of general principles of law should be considered a true formal source of law, since they lead
to the establishing of rules by an international actor, in casu the International Court of Justice,
following a certain process.332 However, this view is strongly attacked by part of legal

328
H. WALDOCK, “General Course on Public International Law”, Recueil des Cours 1962-II, 67.
329
A. VON VERDROSS, “Les principes généraux du droit dans la jurisprudence internationale”, Recueil des Cours
1935-II, 205; A. VON VERDROSS, “Les principes généraux du droit applicables aux rapports internationaux”,
Revue Générale de Droit International Public 1938, 49; C. DE VISSCHER, Théories et réalités en droit
international public, Paris, Pedone, 1970, 419.
330
Separate Opinion Judge MCNAIR, International Status of South West Africa, Advisory Opinion, ICJ Rep.
1950, 148.
331
D. ANZILOTTI, Cours de droit international, Vol. I, Paris, Sirey, 1929, 116-119; H. KELSEN, Principles of
International Law, London, Holt, Rinehart and Winston, 1967, 438-440; K. STRUPP, “Le droit de juge
international de statuer selon l’équité”, Recueil des Cours 1930-III, 474-475; L. KOPELMANAS, “Quelques
réflexions sur l’article 38, 3° du Statut de la Cour permanente de Justice”, Revue Générale de Droit International
Public 1936, 285-308; G. MORELLI, “Cours général de droit international public”, Recueil des Cours 1956-I,
430; H. KELSEN, “Théorie du droit international public”, Recueil des Cours 1953-III, 121-122.
332
For the definition of formal source, see supra, No. 8; WEIL does not regard general principles of law as
having obtained the status of a formal source since in his view the Court has never applied the process of
transposition from the national order to the international order: P. WEIL, “Le droit international en quête de son
identité: cours général de droit international public”, Recueil des Cours 1992-VI, 14-149. I disagree since even if
the process is difficult and even if the Court has never applied general principles of law, the concept of formal
source does not depend on utilitarian considerations, but on its capability to produce legal norms by way of a
certain process. Since I am of the opinion that general principles of law entail a legislative process by the Court,

80
doctrine which is of the opinion that the Court should apply the law and not create the law.333
Proponents of this view point to the wording of Article 38 Statute of the International Court of
Justice that was added to the previous version of Article 38: it lays down that the function of
the Court is to decide in accordance with international law (emphasis added) such disputes as
are submitted to it. Yet, this is in our view not conclusive since it is perfectly possible to
ascribe to the Court a legislative function which it should perform in accordance with
international law.334 For instance, if the Court would apply a general principle of law which is
not recognized in the generality of legal systems, it is not deciding/legislating in accordance
with international law. To give the Court a legislative function, does not entail that it is free to
adopt whatever it pleases. The Court will have a certain degree of discretion, but discretion
does not necessarily mean that one can decide without any reference to standards at all.
DWORKIN in this regard distinguishes between three forms of discretion. The first form of
discretion concerns the use of judgment in applying standards since the standards cannot be
applied mechanically; the second form of discretion entails that an authority is endowed with
the power to take final decisions; the third strong sense of discretion means that no standards
are to be applied in reaching a decision.335 In the case of general principles of law, it is not
entirely clear which type of discretion international judicial bodies are using. On the one
hand, one could argue that they are applying the first form of discretion since they have to use
their judgment on the content of a standard, namely whether a certain standard is part of the
general principles of law. They are not free to take whatever decision they like. Rather, they
will have to find guidance in existing national law and only if there is a level of convergence
of the principles underlying the specific national rules, it may pronounce a rule at the
international level in order to solve the dispute. On the other hand, the identification of
general principles of law requires a significant amount of discretion not featuring in a typical
case of the exercise of “weak discretion”. Therefore, following RAZ, Article 38 (1)(c) Statute
of the International Court of Justice could best be considered as a law of discretion, referring
to principles which are not legally binding but containing a standard guiding the judges in
exercising their discretion.336 Indeed, principles underlying domestic legal systems are as such
not binding at the international level, for the adoption of national rules which have the same
fundamental principles and policies by the generality of States is by no means a process to
establish international rules. States when adopting national legislation generally do not
consider these rules to have any international impact. Against this one might object that
Article 38 (1)(c) establishes that these domestic rules could become applicable to the
international sphere whether States want it or not; but even then, these national principles are
not imported in the international level unchanged: judges still have to select the relevant
principle and make it suitable for the international level. So, there is still some judicial law-

following a certain procedure of distracting general principles from national legal systems, I consider general
principles of law as a formal source in its own right.
333
A. VON VERDROSS, “Les principes généraux du droit applicables aux rapports internationaux”, Revue
Générale de Droit International Public 1938, 48-49; H. WALDOCK, “General Course of Public International
Law”, Recueil des Cours 1962-II, 57; R. QUADRI, “Cours générale de droit international public”, Recueil des
Cours 1964-III, 348-349.
334
K. STREBEL, “Quellen des Völkerrechts als Rechtsordnung”, Zeitschrift für äuslandisches öffentliches Recht
und Völkerrecht 1976, 340.
335
R. DWORKIN, Taking Rights Seriously, Cambridge, Mass., Harvard University Press, 1978, 31-32.
336
J. RAZ, “Legal Principles and the Limits of Law”, Yale law Journal 1971-1972, 846-848.

81
creation.337 One might continue to stress that the Court is in those cases applying existing
international law, but then one has to accept the consequence that general principles of law
are not a formal source of international law, but a material source of international law.338 As a
result, if one stands by the position that general principles of law are part of international law
as such and not through judicial law-creation, one has to accept that general principles of law
are a material source, in the sense of containing legally relevant ideas, values and
arguments,339 from which the judges draw an international rule to best fit the case using a
certain jurisprudential technique or method. Since the identified general principles will often
be too general to infer a specific rule, the international judge therefore has to fit the general
principle to the case at hand and formulate out of the various alternatives the best rule to apply
using certain legal techniques. Yet, it remains the case that as such the international judge is
not applying a legal principle to the case. Rather, he or she will apply a specific rule to solve
the dispute, the creation for which he draws inspiration from national legal systems, but he
will not directly apply the legal principles of the domestic order since he has to ensure that the
outcome of his examination of national legal systems is suitable for the international legal
order. If the domestic principles would indicate a result which does not fit the international
legal order, the judge will have to amend the result in such a way that it can be applied such as
to solve the international dispute. Therefore, in the end it will be the legislative activity of the
judge and not the direct application of a general principle of law which will be decisive.

4. General principles of law as principles underlying each legal system

93. A second part of doctrine does not limit general principles of law to domestic
principles, but regards general principles of law as principles which are underlying each and
every legal order, whether national or international.340 It concerns principles which are

337
DWORKIN accepts as such that judges deciding hard cases necessarily have some discretion, but that they do
not have to decide these hard cases by applying their own convictions, but, as Hercules, on the conviction of the
soundness of a particular legal theory incorporating and balancing all principles operating and underlying the
legal system. R. DWORKIN, Taking Rights Seriously, Cambridge, Mass., Harvard University Press, 1978, 123-
130; in fact they are applying a large amount of weak form of discretion: W.J. WALUCHOW, “Herculean
Positivism”, Oxford Journal of Legal Studies 1985, 205. Unfortunately, human judges do not possess the same
skills as Hercules, so that they might be confronted with the situation that there might not be a single answer,
requiring the exercise of some discretion. Furthermore, even if the theory would provide for one right answer,
this might be considered controversial by other judges who advance their correct answer(s). In this respect,
legislators could be in the same position: legislators might themselves have legal-political theories about which
statutes a constitution requires them to adopt, a point which could give rise to controversy; yet nobody would
doubt that in such situation the legislator is legislating. Similarly, the International Court of Justice Court will
need to have some discretion to adopt a legal solution in case of absence of customary or conventional rules.
Although it must be guided by general principles of law, as a legislator guided by the constitution, they will
have to “legislate” the solution to the dispute.
338
Article 38 (1) Statute of the International Court of Justice, though hinting at the formal sources of
international law, is as such not an enumeration of the formal sources of international law, which is evidenced by
the enumeration of doctrine and judicial decisions in littera (d). It is therefore not problematic to consider
general principles of law as a material source.
339
Supra, No. 10.
340
A. FAVRE, “Les principes généraux de droit, fond commun du droit des gens”, in INSTITUT UNIVERSITAIRE DE
HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en hommage à Paul
Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 375-376; B. CHENG, “The Meaning and Scope of Article

82
inherent or necessary in order to qualify a system of norms as a legal system. They are
derived from “objective justice” characterizing each legal system. Therefore, these principles
are regarded as logically required for every legal system in order to receive the epithet
“legal”.341 This conception of general principles of law is to a certain extent puzzling. Which
legal principles can be said to be inherent to each and every system? How can they be
identified? It is submitted that they flow from the characteristics of law. The introduction of
law in a society is not a neutral enterprise: it is a normative enterprise. By introducing law, the
conduct of subjects of the law becomes regulated. All legal systems require a critical
minimum amount of norms prescribing or prohibiting certain conduct.342 It is not submitted
that each and every part of the legal system needs to be a norm, but a legal system which does
not contain norms is not a legal system. If subjects are obliged to adjust their conduct in
conformity with norms, then it is possible to speak of a “wrong” if they breach the norms. If
such a wrong is committed, typically a sanction must follow. This does not mean that every
breach should result in a legal sanction – there might be some discretion in whether or not to
apply sanctions – or that all rules should contain sanctions. However, any legal system in
order to be efficient needs to apply on some occasions sanctions. In any event, if subjects of a
legal system would always escape from their obligations, the purpose of a legal system to
induce people to live by certain norms would be futile. Furthermore, sanctions are needed as a
guarantee for subjects who respect the law, because otherwise they would suffer from the
actions of other subjects who do not respect the law and as a result gain some advantages over
others.343 From this line of thought one of the first general principles underlying each legal
system can be derived, namely that nobody should profit from his own wrong. If subjects
would always profit from their breach of legal norms, one can hardly speak of a legal system.

94. Related to the foregoing is the principle of good faith which is considered to underlie
each legal system.344 Good faith has different meanings, but the one we are concerned with
here is good faith as a general principle of law.345 The general principle of good faith consists
of three aspects, but each aspect points to the idea of social solidarity. The first element of
good faith refers to certain prohibitions of non-loyal behaviour, or put together in one maxim
nobody may profit from his own wrong, thereby relating good faith to the necessary
characteristic of law as a normative system. Good faith in the second meaning protects the
legitimate expectations of subjects created on the basis of the perceived conduct of other

38 (1) (c) of the Statute of the International Court of Justice”, Transactions of the Grotius Society 1952, 129; E.
HÄRLE, “Les principes généraux de droit et le droit des gens”, Revue de Droit International et de Législation
Comparée 1935, 680; A. VON VERDROSS, “Les principes généraux du droit dans la jurisprudence internationale”,
Recueil des Cours 1935-II, 203-205.
341
O. ELIAS and C. LIM, “‘General Principles of Law’, ‘Soft Law and the identification of International Law’”,
Netherlands Yearbook of International Law 1997, 31.
342
J. RAZ, The Concept of a Legal System, Oxford, Clarendon, 1980, 155; next to such laws, each legal system
must also contain laws stipulating sanctions: Ibid.
343
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 197-198.
344
P. MALANCZUK, Akehurst’s Modern Introduction to International Law, London, Routhledge, 1997, 49; P.
DAILLIER and A. PELLET, Droit international public, Paris, LGDJ, 2002, 352; P. REUTER, “Principes de droit
international public”, Recueil des Cours 1961-II, 442; A.-J. LEONETTI, “Interprétation des traités et règles
imperatives du droit international general (jus cogens)”, österreichisches Zeitschrift fur öffentliches Recht 1973,
96.
345
For the different notions of good faith, see: R. KOLB, “Principles as Sources of International Law (with
Special Reference to Good Faith)”, Netherlands International Law Review 2006, 13-20.

83
subjects. Here the focus is on legal certainty and stability, two essential characteristics of any
legal system since without them subjects would not know whether to follow legal norms or
not and would be subjected to discretion instead of norms. A third aspect of good faith is the
protection of common interests against excessive exercise of individual rights and the
protection against conduct depriving the object and purpose of acts.346 Law posits norms for
subjects living with each other in a society, which implies that if legal subjects interact with
each other in the framework of law, necessarily there must be subjects with legal rights. If a
subject would be allowed to pursue their legal rights to the extreme this may cause the
downfall of the legal system. If on the other hand law it would fully encroach upon the rights
of the subjects, there will be in the end no subjects left.347 As a result, law is always a balance
between rights of subjects and normative prescriptions regulating the conduct of subjects in
society. The principle of good faith which protects common interests against an excessive
exercise of individual right is thus the formulation of this balance.

95. Another principle necessarily inherent in each legal system is the principle of equity or
considerations of justice.348 A legal system is characterized by a promise about (a form) of
substantive justice, whether or not it actually lives up to this promise or whether or not all its
norms are actually just. This is partially explained by law’s claim for authority: if law claims
authority for itself than it must present itself as serving some extra-legal value.349 And since
many people are of the opinion that law should promote a form of substantive justice, law
must promise a form of substantive justice. As a result, if a legal lacuna emerges in the law
and the lacuna cannot be filled by rules derived from domestic legal systems, an international
court may have recourse to equity praeter legem, a situation which in fact occurred for the
delimitation of the continental shelf, which was based on general precepts of justice and good
faith.350 However, the promise of law about substantive justice often strands on its
commitment to formal justice, since in a society members may not agree on what substantive
justice entails. Therefore, in such cases law can only promise justice by ensuring formal
justice in the form of consistency (treating like cases alike), ensuring that certain procedures
are followed, by giving reasons why a certain conception of substantive justice was chosen,
and to provide for coordination in the pursuit of justice.351 Nevertheless, even in that case,

346
Ibid., 17-18.
347
P. SCHOLTEN, “Rechtsbeginselen”, in X., Mededeelingen der Koninklijke Akademie van Wetenschappen,
Afdeeling Letterkunde, Deel 80, Serie B, Amsterdam, Noord-Hollandsche Uitgevers-Maatschappij, 1935, 273 et
seq.
348
H. LAUTERPACHT, The Development of International Law by the International Court, London, Stevens,
1958, 213. The International Court of Justice held that: “equity as a legal concept is a direct emanation of the
idea of justice”: Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, ICJ Rep. 1982, § 71;
reiterated in: Frontier Dispute (Burkina Faso v. Mali), Judgment, ICJ Rep. 1986, § 149; the relation with
general principles of law as derived from “objective justice” is obvious.
349
J. WALDRON, “Does Law Promise Justice?”, Georgia State University Law Review 2000-2001, 768-769.
350
In the North Sea Continental Shelf Cases the International Court of Justice found that the delimitation of the
continental shelf was governed by a rule of customary international law establishing that the determination of
continental shelves should respect equitable principles: North Sea Continental Shelf Cases (Federal Republic of
Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, § 85. Yet,
such a customary rule gives much freedom to the Court to develop the law on the delimitation of the continental
shelf. Furthermore, since every situation is different new or more complex rules will have to be proclaimed to
fill in the lacuna.
351
J. WALDRON, “Does Law Promise Justice?”, Georgia State University Law Review 2000-2001, 781-787.

84
substantive justice plays a limited role for it might well be that rules which respect formal
justice, lead in particular circumstances, if they would be applied consistently, to unjust
results. As a result, the judge may apply equity infra legem or equity contained within the law
to mitigate the strict and unjust application of a rule. It has to be noted that this does not mean
the abolishing of the rule for reasons of justice, or equity contra legem, but rather a specific
application of the rule in such a way that the end-result comes closest to the normal results the
rule envisaged, thus enhancing the consistency of the rule.

96. This point of view leads to entirely different conclusions than the first theory on general
principles of law. First, it is not necessary to have recourse to domestic law since these
principles are pre-existing law: they necessarily permeate any legal system. Therefore, no
confirmation needs to be searched for in domestic law.352 The general occurrence of a certain
principle in national law is proof that the principle is inherent to any legal system, but unlike
the first theory, domestic law does not serve as a guidance to derive general principles of law
in order to solve a dispute in case of lacunae. Rather, its existence is independent of any
specific rule in the national sphere, but the principles underlying the technical rules might hint
to the inherent and necessary nature of the principle for any legal order.353 Thus, if such a
principle is identified, it can be immediately applied to the international sphere. On the other
hand, if the principle underlying the specific national rules is only applicable to the national
level, it is clear that it cannot qualify as a general principle of law since it is not inherent to the
generality of the legal systems. A second consequence is that general principles of law are not
a formal source in the meaning of law creating process. Since these principles are inherent to
a legal system they do not have to result from a process: they are there and will always be
there so long one deals with a legal system. They are thus a material source of law since they
include legally relevant ideas, values and arguments which are necessarily underlying a legal
system. From this, the step to natural law is easily made.354 Yet, this is not necessarily so: by
emphasizing the inherent nature of these principles for law, one remains within the legal
framework.355 Thirdly, the main attractiveness of this theory of general principles of law is
that it releases them from their bond of subsidiarity since they can play a role outside the
situation of lacunae in customary international law or conventional law and the issue of non
liquet. In fact, according to this conception of general principles of law the possibility of non
liquet is non-existent, since if there is no treaty or customary rule, the judge can always apply

352
B. VITANYI, “Les positions doctrinales concernant le sens de la notion de ‘principes généraux de droit
reconnus par les nations civilisées’”, Revue Générale de Droit International Public 1982, 85-86; F. CASTBERG,
“La Méthodologie du droit international public”, Recueil des Cours 1933-I, 357; R. QUADRI, “Cours général de
droit international public”; Recueil des Cours 1964-III, 351.
353
A. VON VERDROSS, “Les principes généraux du droit dans la jurisprudence internationale”, Recueil des Cours
1935-II, 204-205.
354
See: A. FAVRE, “Les principes généraux de droit, fond commun du droit des gens”, in INSTITUT
UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en
hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 375-376; FITZMAURICE considered
general principles of law as reflecting natural law: G.G. FITZMAURICE, “The Formal Sources of International
Law”, in Baron F.M. VAN ASBECK, J. DONNER, et al. (eds.), Symbolae Verzijl, The Hague, Nijhoff, 1958, 174;
FITZMAURICE considers natural law as a formal source of international law, a qualification which follows from
his definition of formal source: a formal source consists of acts or facts whereby the material source is clothed
with legal validity and obligatory force: Ibid., 154.
355
P. SCHOLTEN, “Rechtsbeginselen”, in X., Mededeelingen der Koninklijke Akademie van Wetenschappen,
Afdeeling Letterkunde, Deel 80, Serie B, Amsterdam, Noord-Hollandsche Uitgevers-Maatschappij, 1935, 273.

85
the general principles of law which form an autonomous and integral source of international
law. Furthermore, general principles of law are not only employed when no treaty or
customary rule exists, but also have an interpretative function, help to develop customary and
conventional law and according to some even modify conventional or customary law if it is in
conflict with these general principles of law, which because of their nature occupy a higher
normative position in international law.356 From the foregoing it equally follows that
international actors, in particular States, should respect and apply these general principles in
their international relations since they are inherent in the legal order and have an impact on
conventional and customary law.357

97. The question is however whether this granting of an extending scope of general
principles of law is justified. First, it could be argued that this view goes against the intention
of the drafters of the Statute of the Permanent Court of International Justice.358 Second, the
problem with this theory is that it considers general principles of law as influencing concrete
rules of international law, while in fact these principles might be merely rules themselves
about how to apply other rules. This theory indeed seems to a certain extent to suffer from the
above-mentioned problem of individuation, or the question what is a complete law.359
Accordingly, principles are merely used as abbreviations to denote more complex, but
complete particular rules or set of rules.360 For instance, the principle of good faith is very
likely to be a principle which underlies each legal system. However, this principle could be
understood as referring to a number of specific rules. For example, the rule that treaties have
to be interpreted in good faith is to be considered a rule of customary international law, since
SCHWARZENBERGER has pointed out that in the past treaty clauses had to be literally
interpreted. Generally, a practice emerged of including clauses in treaties that the treaty had to
be interpreted taking into account the will of the parties, i.e. good faith.361 Furthermore, the
International Court of Justice has held that good faith as a concept is not in itself a source of
obligation where none would otherwise exist.362 So, the principle as such may not have a
developing function, rather, there seems to exist a rule operating in the background that the

356
M. CHERIF BASSIOUNI, “A Functional Approach to ‘General Principles of International Law’”, Michigan
Journal of International Law 1989-1990, 775-781; for adherents to the theory that general principles of law are
hierarchically higher norms: A. VON VERDROSS, “Les principes généraux du droit dans la jurisprudence
internationale”, Recueil des Cours 1935-II, 223-224; A. VON VERDROSS, “Les principes généraux du droit
applicables aux rapports internationaux”, Revue Générale de Droit International Public 1938, 51; R. QUADRI,
“Cours général de droit international public”, Recueil des Cours 1964-III, 350; E. HÄRLE, “Les principes
généraux de droit et le droit des gens”, Revue de droit international et de législation comparée 1935, 680;
VERDROSS and HÄRLE consider general principles of law as part of jus cogens; the opinion of QUADRI, though
not explicit, seems to concur. Equally, SIMMA and ALSTON are sympathetic to the idea that general principles of
law are the source of jus cogens norms: B. SIMMA and P. ALSTON, “The Sources of Human Rights Law: Custom,
Jus Cogens, General Principles”, Australian Yearbook of International Law 1988-1989, 102 et seq.
357
A. VON VERDROSS, “Les principes généraux du droit dans la jurisprudence internationale”, Recueil des
Cours 1935-II, 203.
358
See: P. GUGGENHEIM, “Contribution à l’histoire des sources du droit des gens”, Recueil des Cours 1958-II,
78-79.
359
See: J. RAZ, “The Identity of Legal Systems”, California Law Review 1971, 797; J. RAZ, “Legal Principles
and the Limits of Law”, Yale Law Journal 1971-1972, 825 et seq.
360
J. RAZ, “Legal Principles and the Limits of Law”, Yale Law Journal 1971-1972, 828.
361
G. SCHWARZENBERGER, The Inductive Approach to International Law, London, Stevens & Sons, 1965, 111.
362
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,
ICJ Rep. 1988, § 94.

86
observance and application of existing international rules should be performed in good
faith.363 Equally, legal institutions which are said to be grounded on good faith, such as the
principle of estoppel, could be regarded as rules which are derived from national law instead
of principles inherent to every legal order. Furthermore, the idea that these principles are
logically necessary in each legal system does not prevent them from being individuated, since
what precisely is logically required is not written in stone. For instance, it would be fair to
argue that the principle of “no one may benefit from his own wrong” is a general principle of
law inherent to every legal system and hence part of legal logic. Yet, there are instances
where law allows one to benefit from one’s own wrong, for instance in the case of acquisitive
prescription of territory which does not require that the occupier acted in good faith.364
Another example is the principle of good faith which inter alia protects the legitimate
expectations of law-subjects.365 But which interests are legitimate is matter for debate;
equally, the principle of estoppel, grounded on good faith, has been interpreted as barring a
State to change its representation to which other States were entitled to rely if that would lead
to damage to those States. As a result, not all legitimate expectations will be protected by the
principle of estoppel: if the change in representation does not result in damage, then estoppel
will not apply. Consequently, logically necessary principles of law are by no means clear, not
in their scope nor in their application to a specific case. Much depends on the social purpose
they serve, the values they protect, and the interaction between different social purposes and
values. Hence, what is legally logically required will in the end depend on experience and on
common sense, both of which might change over time,366 and thus requires individuation in
order to be applied. Moreover, as a third critique, it has been argued that the view on general
principles of law as necessary principles of each legal system makes referral to them in
Article 38 Statute of the International Court of Justice redundant, for why would the Statute
point to them as a category the Court may apply, if they are inherent to any legal system? If so
conceived, the Court could always apply them, even would be obliged to apply them, since
they are part and parcel of the legal system which would not exist without them.367

98. Despite these criticisms, this theory on general principles of law has some merit.
Concerning the first remark, it might indeed not have been the intention of the drafters of the
Statute to convey this meaning to “general principles of law”, yet the wording of Article 38,
which has preference above the preliminary works, does allow for such an interpretation,
since it speaks of general principles of law in general, not general principles of national law.

363
M.N. SHAW, International Law, Cambridge, Cambridge University Press, 2003, 98.
364
Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, ICJ Rep. 1999, § 94: acquisitive prescription
should be peaceful and uninterrupted, but this does not imply good faith: one can peacefully, but in bad faith
occupy part of another State’s territory.
365
R. KOLB, “Principles as Sources of International Law (with Special Reference to Good Faith)”, Netherlands
International Law Review 2006, 20-24.
366
O. SCHACHTER, “International Law in Theory and Practice: General Course of International Law”, Recueil
des Cours 1982-V, 81; O. ELIAS and C. LIM, “‘General Principles of Law’, ‘Soft Law and the identification of
International Law’”, Netherlands Yearbook of International Law 1997, 32-35; for the use of logic in law see: J.
DEWEY, “Logical Method and Law”, Cornell Law Quarterly 1924, 17-27.
367
P. DE VISSCHER, “Cours international de droit international public”, Recueil des Cours 1972-II, 115; A.
BLONDEL, “Les principes généraux de droit devant la Cour permanente de Justice internationale et la Cour
internnationale de Justice”, in INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil
d’études de droit international en hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 211
et seq.

87
Moreover, general principles of law in this sense fit the description of Article 38 (1)(c)
because conceptually they are principles as retained above in the meaning of optimization
requirements. Whereas general principles of law in the first meaning indicated a formal
source which will lead to a specific solution of a dispute by the formulation of a rule, general
principles in the second meaning concern principles that are directly applicable and prescribe
certain conduct, but their application and scope will depend on the facts of the case and of
other legally relevant rules and principles. Thus they could be considered principles in the
sense of optimization requirements. They also play a role in the application, the development
of law and the creation of new law.368
The answer to the first critique hints at the answer to the second remark. Principles are
indeed relatively more general than rules, but, as ALEXY has argued, they become more
concrete by their application resulting in a different system of rules, without however being
captured completely by these rules. In other words, general principles of law can be
individuated, but never completely and thus retain a separate existence. Therefore, the
criticism that the precise content of these general principles is not inherent or logically
necessary is correct to a certain extent: the individuations are not logically necessary or
inherent in a legal system, but the principle as such is. In new situations one would need a
new concretization of the principles which was before not necessary, but one would apply the
same principle. For instance, the principle of good faith or that nobody may profit from his
own wrong can be differently applied, if applied at all, in different contexts, but a legal system
without the principle of good faith or a legal system were everyone always benefits from his
own wrong is not conceivable.369 So at least the core idea of the principle is required in every
legal system. Of course, it is maybe theoretically conceivable that one can adopt a theory of
individuation which completely describes the content of general principles, but the purpose of
any theory of individuation is to find manageable rules out of a legal system and hence avoid
repetition and the construction of burdensome rules containing each and every qualification; it
should also not deviate from the common conception of law.370 A theory of individuation
spelling out the whole content of each and every legal principle would make rules very
burdensome and would defy the common viewpoint that general principles of law are richer
and more flexible than conventional and customary rules. Hence, the conception of general
principles of law as principles necessarily underlying each legal system does not make the
mentioning of these principles in Article 38 entirely redundant since the Court has to apply
something which is neither conventional nor customary, but influences its application of
conventional or customary international law leading to particular decisions.
The last criticism that this conception of general principles of law makes reference to
them in Article 38(1)(c) pointless, remains valid, but is not insurmountable. For, these
principles operate next to treaty and customary rules, and influence them, but despite
individuation cannot be reduced to treaty law or customary international law as such. This is

368
R. KOLB, “Principles as Sources of International Law (with Special Reference to Good faith)”, Netherlands
International Law Review 2006, 9. For the functions of general principles of law in the international system:
Ibid., 25-36.
369
RAZ himself, although sceptical to general principles and a champion of individuation, referring to HART,
endorses the view that necessarily a legal system should to a certain extent protect human life and property,
which implies that the principle “no one may benefit from his own wrong” is logically required: J. RAZ, “About
Morality and the Nature of Law”, American Journal of Jurisprudence 2003, 3.
370
J. RAZ, “Legal Principles and the Limits of Law”, Yale Law Journal 1971-1972, 831-832.

88
in any event the case for the principle of good faith as evidenced by the International Court of
Justice in the Nuclear Test Cases:

“One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and
confidence are inherent in international co-operation, in particular in an age when
this co-operation in many fields is becoming increasingly essential.”371

The principle of good faith hence underlies each creation and performance of
international law, and is therefore presupposed, not created by a rule of international law
itself, though specific interpretations or individuations of it might be created by conventional
or customary rules as was the case with the rule of good faith interpretation of treaty clauses.
The same could be said of equity infra legem or equitable considerations which are included
in international law itself in order to mitigate the rigidity of conventional or customary
international law. Equity in this sense is a method of interpretation of the law in force and an
attribute to the existing law. What matters is to find an equitable solution derived from
existing law.372 This form of equity is not the result of a customary process or laid down in
conventional rules, rather it is implicit in the law itself.

5. General principles of law as general principles of international law

99. A third group of scholars does not only conceive general principles of law as principles
derived from national legal systems or principles inherent to every legal system, but also as
general principles of international law. The latter category comprises principles which are
well-settled and fundamental to the international legal order, for instance sovereign equality
of States, the principle of non-use of force in international relations, the principle of the
freedom of the High Seas, etc.373 However, the major problem with this thesis is that it does
not respect the theory of individuation. Indeed, general principles of international law
typically have a conventional or customary basis, making it difficult or even impossible to
distinguish them from customary or conventional international law.374 For instance, the
principle of the prohibition of the use of force is in fact a summary of the customary rule that
the use of force between States is prohibited except in case of authorization by the Security
Council or in case of self-defence. Furthermore, from a conceptual angle, some of these
general principles of international law are not principles at all. The prohibition on the use of
force in international relations operates as a rule and not as a principle in the sense of an
optimization requirement. Others however could be regarded as principles, but the fact

371
Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, § 46; Nuclear Tests (New Zealand v. France),
Judgment, ICJ Rep. 1974, § 49.
372
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Rep. 1974, § 33.
373
C. ROUSSEAU, Droit international public, Tome I, Introduction et sources, Paris, Sirey, 1970, 389 et seq;
J.G. LAMMERS, “General principles of Law Recognized by Civilized Nations”, in F. KALSHOVEN, P.J. KUYPER
and J.G. LAMMERS (eds.), Essays on the Development of the International Legal Order in Memory of Haro F.
Van Panhuys, Alphen aan den Rijn, Sijthoff & Noordhoff, 1980, 66-69.
374
P. DAILLIER and A. PELLET, Droit international public, Paris, LGDJ 2002, 350; H. WALDOCK, “General
Course on Public International Law”, Recueil des Cours 1962-II, 69; P. WEIL, “Le droit international en quête de
son identité: cours général de droit international public”, Recueil des Cours 1992-VI, 149-151.

89
remains that these principles have been introduced in international law by the way of custom
or treaty and hence there is no reason to include them into the notion of general principles of
law. Otherwise, if one would include general principles of international law into general
principles of law, this source becomes very heterogeneous. For, it would include principles
which could be derived from national legislation which are discovered by a comparative
analysis of national legal systems and transformed to be applied at the international level,
principles inherent in every legal system, and rules of great importance to the international
legal system, which are often abstractions of concrete rules applied to a myriad of situations.
In fact, some cardinal rules of international law are denoted as principles because of the
importance of their content.375 But the other principles are of a different category since they
do not necessarily have such an importance: they are either derived from national legal
systems, or are inherent to every legal system. Granted, the latter category could include
principles which are important because of their substance, but even then since these principles
are viewed upon as necessary for any legal system, they are not subject to change, while the
general principles of international law can be changed. Furthermore, general principles of law
in the more strict sense are a separate source of international law, while general principles of
international law are enshrined in custom or treaties,376 and are rather a judicial method of
using existing sources.377

100. For these reasons, it would be better to separate the notion of general principles of
international law from general principles of law, which could consist of principles derived
from the national legal system or principles inherent to every legal system. Yet, it has to be
admitted that the dividing line between customary international law and general principles of
law is not always entirely clear. For instance, in the Factory at Chorzow the Permanent Court
of International Justice held that “[I]t is a principle of international law, and even a general
conception of law, that any breach of an engagement involves the obligation to make
reparation.”378 Thus, the obligation to make reparation for a breach of international law is part
of customary international law, but also a general principle of law. Similarly, a significant
number of provisions and concepts in the Vienna Convention on the Law of Treaties,
including the notion of jus cogens, could, with due caution, be said to be derived from
national legal systems.379 So, general principles of law could perfectly constitute the material
source of customary international law or treaty law, but once they have been incorporated in

375
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
148.
376
P. DAILLIER and A. PELLET, Droit international public, Paris, LGDJ, 2002, 350; M. VIRALLY, “The Sources
of International Law”, in M. SØRENSEN (ed.), Manual of Public International Law, London, McMillan, 1968,
144-145; H. WALDOCK, “General Course of International Law”, Recueil des Cours 1962-II, 68.
377
P. MALANCZUK, Akehurst’s Modern Introduction to International Law, London, Routhledge, 1997, 48.
378
Factory at Chorzów (Germany v. Poland), Merits, Judgment, PCIJ Publ., Series A, No. 17, 29.
379
B.A. WORTHLEY, “The Interaction of Public and Private International Law Today”, Recueil des Cours 1954-
I, 321-326 (interpretation rules); K. MAREK, “Contribution à l’étude du jus cogens en droit international”, in
INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en
hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 426 (pointing to the problems of
transposing the general principle of jus cogens from the internal level to the international level); M. BARTOŠ,
“Transformation des principes généraux en règles positives du droit international”, in V. IBLER (ed.), Mélanges
offerts à Jury Andrassy, The Hague, Nijhoff, 1968, 1-12.

90
treaty law or customary law, these rules will apply instead of the general principles of law.380
However, it has been stated that the general principles of international law are basic
assumptions of the international legal system and could therefore not be regarded as
customary international law since there is no State practice or an opinio juris required.381
Examples are the notion of statehood, state autonomy, territorial integrity and inviolability.
Yet, this is in my view not convincing. First, as demonstrated above, State practice might
exist out of declarations. Furthermore, what is important is the density of the practice: one
declaration by all the States might be sufficient to establish a rule of customary international
law. As a result, most of these basic assumptions could well be part of customary
international law. Furthermore, if one regards the general principles of international law as
basic assumptions of the international legal system, one makes an abstraction of the historical
evolution of international law. Each assumption will in fact be the result of an historical
process. For instance, in the Middle Ages the concept of the modern State was non-existent in
the feudal system, but international law was a relationship between various polities consisting
of estates with dominial rights and duties attached to them, cities, Hanseatic leagues etc.382
Furthermore, territory and territorial jurisdiction played a less central role than in the modern
State: princes could exercise their law abroad, the church had important jurisdictional powers
within the various polities and some religious groups, like the Jews, lived under their own
laws. Personal allegiances were more important than territory as such. It was only later, when
the monarchs managed to centralize power that one could speak of the State as the primary
and only subject of international law with exclusive jurisdiction over its territory. So, it was
only gradually that the legal conviction arose that only the State, symbolized by the absolute
monarch, could create law, and not other polities.383

6. Conclusion as to the scope of the source of general principles of law

101. General principles of law are comprised of two categories. The first group consists of
general principles of law derived from national legal systems, adapted to the international
level in order to fill lacunae in international law. This is a true formal source of international
law since they are the results of a law-creating procedure by an international judicial body,
which has some discretion in this regard. Since their purpose is to avoid a non liquet, they are
subsidiary in nature and will only be resorted to if no other rule of international law can be
found. A second category of general principles of law are general principles which are
inherent to every legal order. They are retained as general principles of law because, first,
conceptually they are principles and second, because they cannot be reduced to custom or

380
M. BARTOŠ, “Transformation des principes généraux en règles positives du droit international”, in V. IBLER
(ed.), Mélanges offerts à Jury Andrassy, The Hague, Nijhoff, 1968, 2-3; A. VON VERDROSS, “Les principes
généraux de droit dans le système des sources du droit international public”, in INSTITUT UNIVERSITAIRE DE
HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en hommage à Paul
Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 530.
381
L. HENKIN, International Law: Politics and Values, Dordrecht, Nijhoff, 1995, 30-31.
382
For a general overview of the subjects of the international legal community in the Middle Ages: W.G.
GREWE, The Epochs of International Law, Berlin, De Gruyter, 2000, 61-74.
383
GREWE is of the opinion that only in the mid-seventeenth century States became regarded as the exclusive
subjects of international law. For instance, the city of La Rochelle was still capable of concluding a treaty of
alliance with England: W.G. GREWE, The Epochs of International Law, Berlin, De Gruyter, 2000, 172.

91
treaty since they derive from legal logic and from the characteristics of law and are thus not
the result of any legal procedure. They are therefore not a formal source of international law,
rather they underlie each legal system. As a result, the difference between the first and the
second category will not always be clear since the principles of the second category will
necessarily form part of each domestic legal system. Its presence in every national legal
system, or the majority of national legal systems might prove that it is logically required, but
national law will not be the material source of these principles. However, it is possible to
make the distinction between the two categories. For instance, in the Barcelona Traction
Case, the International Court of Justice recognized the principle of the limited liability of the
company.384 This principle belongs to the first category, since it cannot be said that it is an
inherent element of each and every legal system. Furthermore, since the principles inherent to
every legal system belong to the international legal order, they can be applied by the Court
and should be respected by the subjects of international law in their relations; their content
may be vague and subject to different interpretations, but its core meaning remains unchanged
and in fact cannot be changed since it would lead to the demise of the legal system as such.

7. General principles of law and jus cogens

102. After an elaboration on the main theories on general principles of law, the question
arises whether they are a source of jus cogens such as treaties and custom. It is submitted they
are not for the following reasons. Generally, general principles of law are only of limited
importance as well in their application as in their content. It has been noted that overall the
International Court of Justice did not have much recourse to this source of law.385
Furthermore, the general principles of law which were identified were rather principles
dealing with procedural aspects of international adjudication.386 Other more substantial
general principles of law have been incorporated in treaties or have become part of customary
international law.387 However, it is not because general principles of law have played a minor
role in the past and present, that this will necessarily be so in the future.

384
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 38.
385
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
145; J.G. LAMMERS, “General Principles of Law Recognized by Civilized Nations”, in F. KALSHOVEN, P.J.
KUYPER and J.G. LAMMERS (eds.), Essays on the Development of the International Legal Order in Memory of
Haro F. van Panhuys, Alphen aan den Rijn, Sijthoff & Noordhoff, 1980, 71; O. SCHACHTER, International Law
in Theory and Practice, Dordrecht, Nijhoff, 1991, 51; H. WALDOCK, General Course on Public International
Law”, Recueil des Cours 1962-II, 58.
386
Examples are: the use of circumstantial evidence in the Corfu Channel Case (United Kingdom v. Albania),
Merits, Judgment, ICJ Rep. 1949, 18; the principle of res judicata in Effects of Awards of Compensation Made
by the United Nations Administrative Tribunal, Advisory Opinion, ICJ Rep. 1954, 61 and in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Merits, Judgment, ICJ Rep. 2007, §§ 114-116; the principle of equality of the parties in Judgments
of the Administrative Tribunal of the I.L.O. upon Complaints Made against the Unesco, Advisory Opinion, ICJ
Rep. 1956, 85; and the principle of nemo judex in suam causam in Article 3, paragraph 2 of the Treaty of
Lausanne, Advisory Opinion, PCIJ Publ., Series B, No. 12, 32.
387
For instance, as indicated above, the law of treaties as laid down in the Vienna Convention on the Law of
Treaties has been influenced by general principles of law which existed in domestic legal systems; another
example is the law on State responsibility which is part of customary international law, though influenced by
domestic legal systems.

92
103. There are however more significant reasons for not qualifying general principles of law
as a source of law giving rise to jus cogens norms. The first view on general principles of law
draws them from national legal systems and transforms them so that they can be applied at the
international level. However, this procedure in establishing general principles of law requires
an impartial independent body which is able to check whether principles are generally
recognized and if so can adapt them to the international legal order.388 Thus, general
principles of law are typically determined by international judicial and arbitral bodies to fill in
lacunae in international law. But the perspective of courts is a rather unusual one at the
international level where States are in a position of auto-determination of the law. If there
exists lacunae States will adopt treaties or create customary international law to fill in the
lacunae instead of looking at the generality of national legislation in order to deduce general
principles of law which could be applied at the international level. But even if they would
adopt the latter course and make legal claims after an examination of national law, this would
coincide with and in the end lead to a rule of customary international law, for national law
could be considered State practice and the statement that an aspect of international relations
should be regulated by a certain rule derived from a principle of domestic law will be reacted
upon by other States, thus setting in motion the formation of a new rule of customary
international law. Some States might accept the contention, while others could disagree with
the concretisation of the principle, or propose that the situation should not be regulated on the
basis of a general principle of law, but another rule. Furthermore, a determination by the
International Court of Justice of the specific content of a general principle of law does not
necessarily make this finding generally binding upon States. States might accept the rule
based upon the principle of domestic law but are not obliged to do; they could equally reject
the principle and find other ways to fill in the lacuna. But if they accept the decision of the
Court and base their practice upon it, this will in the end again result in a rule of customary
international law. In conclusion, general principles of law conceived as principles of domestic
law only have relevance in the framework of an international judicial body which is capable
to identify them.

104. The second qualification of general principles of law, principles inherent to all legal
systems or principles flowing from objective justice, seems to be a better candidate for a
source of jus cogens norms. For, since these principles are inherent to every legal system they
cannot be derogated from. Furthermore, since they are flowing from objective justice they
could perfectly contain important substantial norms, which could trump existing treaty and
customary rules. Therefore, they could be considered norms of jus cogens.389 However,
Article 53 Vienna Convention on the Law of Treaties, which is in this respect a rule of
recognition, establishes that norms of jus cogens can be derogated from, but that this is
impermissible. First, a general principle understood in this sense cannot as such be derogated
from, since this is logically impossible.390 Second, general principles of law considered as
necessary legal principles are optimization requirements: the principle must as much as
possible be respected and applied depending on facts and other legal norms. Therefore, the
principles will have to be individuated, which implies the formulation of a precedence clause

388
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
146-148.
389
See supra, No. 93.
390
Infra, No. 132 et seq.

93
or the balancing of different principles. However, if the factual and legal circumstances are
different a new precedence clause has to be formulated or a new balance performed.
Consequently, much of the derogations will in fact constitute new precedence clauses and
balances. Nevertheless, it is possible that certain individuations may obtain jus cogens status.
The question then is who is individuating the principle. The principle can be individuated by a
judicial body, for instance the International Court of Justice. However, it will only become
part of general international law if accepted or consented to by States.391 The latter can also
individuate a general principle, but then the individuation of the general principle will have a
customary or conventional status. Moreover, peremptory norms can be modified by a later
norm of the same character. Principles inherent to any legal order cannot be subject to change,
otherwise they would not be inherent. They can be differently filled in and applied differently
in a variety of situations, but the principle itself cannot be eliminated. Norms of jus cogens
can be changed and abandoned, without the legal system losing its predicate of “legal”. So
equally, the second conception of general principles of law cannot give rise to norms of jus
cogens.

105. There remains the third point of view which also regards general principles of
international law as belonging to the notion of general principles of law. It is accepted that
this viewpoint entails that general principles of law could give rise to norms of jus cogens for
unlike the second theory on general principles of law these principles are not immutable and
can be changed. However, these principles have a conventional or customary basis and
therefore it would be better to consider them as conventional or customary rules which have a
higher importance and therefore carry the label of “general principle of international law”.

§4. The need for an autonomous source of jus cogens

106. In doctrine it has been suggested that norms of jus cogens require an autonomous
source of international law since the regular sources of international law are inept to create
norms of jus cogens.392 First, some publicists argue that since norms of jus cogens are
hierarchically superior to other rules of international law, they require a separate source of
international law.393 For, how could the traditional sources give rise to peremptory norms
which are hierarchically higher than the rules flowing from the traditional sources? In other
words, hierarchical superior rules require another source of international law than the rules
which are subordinated to the peremptory norms. However, this view denies the possibility

391
The principle itself is part of general international law, but its individuations, especially newly formulated
ones need not be. If an international court would formulate a new individuation, for instance by the
introduction of a new set of conditions to a previous conflict-rule, this will settle the conflict between the parties
to the dispute, but the formulated individuation may be rejected by States afterwards, and will thus not become
part of general international law.
392
M.W. JANIS, “The Nature of Jus Cogens”, Connecticut Journal of International Law 1988, 359 et seq; N.G.
ONUF and R.K. BIRNEY, “Peremptory Norms of International Law: Their Source, Function and Future”, Denver
Journal of International Law and Policy 1974, 187 et seq.
393
M.W. JANIS, “The Nature of Jus Cogens”, Connecticut Journal of International Law 1988, 360.
HANNIKAINEN reasons similarly but since he does not find any higher source or organ in international law he
rejects that jus cogens establishes a hierarchy in international law: L. HANNIKAINEN, Peremptory Norms (Jus
Cogens) in International Law: Historical Development, Criteria, Present Status, Helsinki, Lakimiesliiton
Kustannus, 1988, 11-12.

94
that some rules are considered hierarchically superior because of their content. Some rules of
international law are considered more important not because of their source, but because of
the interest they aim to protect.394 Second, some authors regard the traditional sources of
international law as insufficient because they are based on consent and peremptory norms
bind States even without their consent.395 However, this is not entirely convincing. First of all,
as demonstrated above, customary international law is not based on consent. Furthermore,
even if States have consented to the sources of international law, this does not entail that the
express or implied consent of each and every State is required in order to create rules binding
on all States, since States could agree that the overall majority could in limited instances bind
other non-consenting States. Second, even if each and every State had to expressly or
impliedly consent, this does not mean that a State can withdraw this consent ad nutuum, and
hence deny the peremptory character of a norm, which it initially accepted. This is not even
the case for conventions, the consensual source of international law par excellence. Treaties
are only binding upon States because they consented to them, yet, because of the stability of
treaty relations, possibilities to withdraw consent are curtailed. Hence, it is perfectly possible
that the whole international community of States agrees as to which norms have a jus cogens
nature, and consequently cannot be derogated from, without meaning that States can, as they
please, come back to their initial consent.
Another advanced argument for a separate source of jus cogens norms is the contention
that customary international law of which general international law is comprised, is not
capable of creating non-derogable rules superseding conventions, thus requiring a “stronger”
source of international law.396 Nonetheless, this is questionable since treaties can be changed
by a subsequent norm of customary international law, a rather normal event in international
law. Hence, if customary rules, derived from a “weaker” source may trump conventional law
and put it out of operation, why should custom not be capable of creating rules from which no
derogation is possible? Another argument against customary international law as being able to
create norms of jus cogens is based on the assumption that existing norms of jus cogens
cannot be modified by a new customary rule since the emergence of a new customary rule
requires cogency which cannot be present in the initial stages of the emergence of the new
rule of customary international law. Hence, the initial practice will and cannot have any
effect.397 Nevertheless, it has to be remarked that this contention makes the theoretical
mistake of deriving a conclusion from a rule of change and applying this to the rule of
recognition, while the two are theoretically distinct. It might well be that a particular kind of
rule can only be changed in a different way as in the way it was created. Hence, it might well
be that a rule of customary international law becomes a norm of jus cogens and that it

394
The International Law Commission was of the opinion that one of the main criteria to identify norms of jus
cogens is their content: “Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the
International Law Commission 1966, Vol. II, 248; see also: R. KOLB, “The Formal Source of Ius Cogens in
Public International Law”, Zeitschrift für öffentliches Recht 1998, 76.
395
A. OREKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 110;
OREKHELASHVILI does accept that custom and general principles of law can give rise to jus cogens norms, but
according to him this requires some modifications in the customary formation process.
396
M.W. JANIS, “The Nature of Jus Cogens”, Connecticut Journal of International Law 1988, 360.
397
N.G. ONUF and R.K. BIRNEY, “Peremptory Norms of International Law: Their Source, Function and
Future”, Denver Journal of International Law and Policy 1974, 192; V. PAUL, “The Legal Consequences of
Conflict between a Treaty and an Imperative Norm of General International Law (jus cogens)”, österreichische
Zeitschrift fur öffentliches Recht 1971, 42.

95
subsequently can only be changed by a specific procedure, in which customary international
law plays no role at all. Yet, this will not bar the emergence of new norms of jus cogens based
on customary international law and which do not go against the old peremptory norms.
Moreover, new peremptory rules may modify existing peremptory norms and still be based on
custom or treaties. For example, if it is assumed that “everyone has the right to life with
exception to the possibility of the dead penalty” is a peremptory norm. This peremptory norm
may be modified by an emerging custom or the adoption of a treaty prohibiting the death
penalty. Subsequently, the existing peremptory norm has been changed by a rule of customary
international law or conventional law having the character of jus cogens.

107. While the previous arguments focused on the inability of the classical sources to create
norms of jus cogens, another argument for an autonomous source for jus cogens norms is
based on the nature and function of these norms. First, peremptory norms are peculiar since
they cannot be derogated from by subsequent treaties and customary rules, unlike “ordinary”
norms of international law. From this it is inferred that peremptory norms belong to a higher
natural order.398 Therefore these norms do not require a particular formal source in order to
exist, rather the law-making procedures of international law are only ways to articulate and
identify pre-existing norms of jus cogens.399 The problem with this view is that peremptory
norms are subject to change pursuant to Article 53 Vienna Convention on the Law of Treaties.
But if these rules are pre-existing, then it is a mystery how to change them. The articulation of
these norms might be defective, but this concerns their articulation and not the norms as such.
Furthermore, Article 53 establishes that these rules have to be accepted and recognized by the
international community of States as a whole. However, it would be pointless to accept and
recognize norms which are pre-existing. Furthermore, these words were inserted during the
Vienna Conference in order to avoid natural law inferences from the draft article of the

398
Such language can be found in case law of the Inter-American Commission on Human Rights: Pinkerton and
Roach v. United States of America, Resolution 3/87, Case No. 9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), §
54; Survivors of the Tugboat ‘13 de Marzo’ v. Cuba, Case 11.436, Report No. 47/96, OEA/Ser.L/V/II.95 Doc. 7
rev. (1996), § 79.
399
N.G. ONUF and R.K. BIRNEY, “Peremptory Norms of International Law: Their Source, Function and
Future”, Denver Journal of International Law and Policy 1974, 188. For a natural law approach of jus cogens:
M.W. JANIS, “The Nature of Jus Cogens”, Connecticut Journal of International Law 1988, 361-362. See also:
Special Rapporteur LAUTERPACHT, “Report on the Law of Treaties”, Yearbook of the International Law
Commission 1953, Vol. II, 155: “These principles [of international public policy] need not necessarily have
crystallized in a clearly accepted rule of law”. However, Draft Article 15 of the Law of Treaties of 1953 which
could justify such a statement, was very different than the one of 1963 and 1969. It 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.”: Ibid., 154. Interestingly, the provision did not speak of jus
cogens, but the International Court of Justice had a role similar to municipal judges dealing with ordre public.
The idea of LAUTERPACHT was taken over by Special Rapporteur FITZMAURICE; Article 16 stated: “1. The
object of a treaty must be lawful […] 2. It is essential to the validity of a treaty that it should be in conformity
with or not contravene, or that its execution should not involve an infraction of those principles and rules of
international law which are of the nature of jus cogens.” In 1963, article 13 (1) provided: “A treaty is contrary
to international law and void if its object or execution involves the infringement of a general rule or principle of
international law having the character of jus cogens”: Special Rapporteur WALDOCK, “Second Report on the
Law of Treaties”, Yearbook of the International Law Commission 1963, Vol. II, 52; this served as the basis of
Article 50 of the 1966 draft laying down: “A treaty is void if its 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.”: “Draft Articles on the Law of Treaties with
Commentaries”, Yearbook of the International Law Commission 1966, Vol. II, 183.

96
International Law Commission.400 Second, the function of jus cogens, namely to operate as an
international ordre public, would justify the requirement of a separate source not based on the
consent of the legal actors in the international community. For could one speak of ordre
public if all the subjects of the legal system have to agree as to the scope and content of that
ordre public? However, the problem might precisely lay in the analogy between jus coges and
ordre public as operating in the national legal sphere. As MAREK has demonstrated, the
analogy with ordre public of the national level might not be opportune since the
circumstances for applying ordre public are markedly different at the national level than at the
international level.401 As a result, it may be doubted that the function of jus cogens at the
international level is a sort of ordre public, or that, if it fulfils this function, it needs to have
the same form as the notion at the national level.402 In any event, while the previous drafts of
Article 53 could be easily construed as an international ordre public,403 the inclusion of the
words “accepted and recognized by the international community of States as a whole”, gave
the concept of jus cogens a certain consensual connotation. One might find this regrettable,
but this element of the definition of jus cogens cannot be wished away.

108. From the foregoing, it is clear that it is unlikely that an autonomous source is required
for norms of jus cogens. The International Law Commission during the preparation of the law
of treaties and States at the Vienna Conference at least did not intend to create an entirely new
source of international law, but referred instead to the traditional sources of international law
when discussing the concept general international law.404 Furthermore, during the Vienna
Conference States were of the opinion that the traditional sources of international law could
give rise to norms of jus cogens.405 Moreover, there is no proof that a new source of
international law has emerged in relation to peremptory norms.
The rejection of arguments against the theory that traditional sources of international
law cannot give rise to norms of jus cogens, does not entail that an autonomous source in fact
does exist. I have not disproved that an autonomous source is not required, only that
arguments against the traditional sources of international law do not hold. However, applying
Occam’s razor, I conclude that since the traditional sources of international law can give rise
to norms of jus cogens, the need for a separate source is redundant and hence not required.
Rather, norms of jus cogens flow from existing treaty or customary norms which get their
specific characteristic, the impermissibility of derogation, by acceptance and recognition of
the international community of States. The creation of conventional or customary norms and
their acceptance and recognition as jus cogens norm, might occur at the same time, but not

400
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 75.
401
K. MAREK, “Contribution à l’étude du jus cogens en droit international”, in INSTITUT UNIVERSITAIRE DE
HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en hommage à Paul
Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 427-438. See also for similar criticism: A.M.
WEISBURD, “The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bosnia-Herzegovina”,
Michigan Journal of International Law 1995-1996, 25-27.
402
M. BARTOŠ, “Transformation des principes généraux en règles positives du droit international”, in V. IBLER
(ed.), Mélanges offerts à Jury Andrassy, The Hague, Nijhoff, 1968, 9-10.
403
The drafts of 1963 and 1966 did refer to general international law, but did not determine how these rules
obtained their status of peremptory norms, but the Commission was of the opinion that the peremptory character
of the norm was in the first place determined by its content: “Draft Articles on the Law of Treaties with
Commentaries”, Yearbook of the International Law Commission 1966, Vol. II, 248.
404
Supra, No. 15-17 and No. 18.
405
Supra, No. 18.

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necessarily so, and should in any event be distinguished in theory: the first element creates a
norm of international law, the second element endows this created norm with a specific
characteristic. It is to this second constituent element of the definition of jus cogens to which
I now turn.

SECTION.3. A NORM ACCEPTED AND RECOGNIZED BY THE INTERNATIONAL COMMUNITY

OF STATES AS A WHOLE OF WHICH NO DEROGATION IS PERMITTED

109. After having examined the notion of general international law and the sources of
peremptory norms, I will now turn to the second part of the definition, namely that a
peremptory norm has to be accepted and recognized by the international community of States
as a whole as a norm which does not allow derogation. This part contains two elements
requiring closer scrutiny. First, the element of acceptance and recognition of the international
community of States invites the question what the impact is of that element on the conception
of peremptory norms as as having a basis in and reflecting natural law. The second element,
the impermissibility of derogation, requires an inquiry into the concept of derogation in
Article 53 Vienna Convention on the Law of Treaties. Furthermore, I will examine whether
all forms of derogation would fall under Article 53 and which acts can lead to derogation
from a peremptory norm.

§1. The requirement of accepted and recognized by the international community of

States as a whole

110. The condition of “accepted and recognized by the international community of States as
a whole”, does not feature in draft article 50 of the International Law Commission, which
read: “A treaty is void if its 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.”406 It is the result of an amendment
introduced by Greece, Spain and Finland at the Vienna Conference on the Law of Treaties of
1968.407 The amendment had the purpose to highlight the role of States in the creation of a
rule of jus cogens,408 but at the same time marks a departure from the classical, or
“Verdrossian”, conception of jus cogens which was not only based on some rules of general
international law, but also on moral precepts. Furthermore, it invites the question how do
States accept and recognize peremptory norms? Moreover, concerning “the international
community of States as a whole”, what is the meaning of the existence of a community at the
international level? Can this international community be limited to States or should other

406
“Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the International Law Commission
1966, Vol. II, 183.
407
Amendment of Greece, Finland and Spain (A/CONF.39/C.1/L.306 and Add. 1 and 2), Reports of the
Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Documents of
the Conference, 1970, 174.
408
See: “Draft Articles on the Law of Treaties between States and International Organizations or between
International Organizations with Commentaries”, Yearbook of the International Law Commission 1982, Vol. II,
Part 2, 56.

98
actors be taken into account, and if so what is the relationship between this wider international
community and the international community of States as a whole?

A. Accepted and recognized

111. The doctrine and concept of jus cogens was already discussed before the adoption of
Article 53 Vienna Convention on the Law of Treaties. Although there are some predecessors
in doctrine, it can be said that it was the merit of VERDROSS to ensure the breakthrough of the
concept of jus cogens at the international level, where it should function as the ordre public of
the international legal order, a view which is still widely shared today. VERDROSS considered
jus cogens as an extension of the traditional doctrine of natural law, which was cast out of
international law due to positivism.409 According to VERDROSS States could not conclude
treaties with whatever object they liked; some treaties would go against morality and would
therefore be void. Like natural law, norms of jus cogens thus prevent States to depart by
consent from certain commonly held important norms or principles by the conclusion of
agreements. These norms flowed from two categories, the first being compulsory norms of
customary international law, the second consisting of the general principle prohibiting States
from concluding treaties contra bonos mores.410 This latter category entailed that international
law could not allow the conclusion of treaties that would go against the ethics of the
international community.411 Also, with regard to the last category the will of States was not
relevant for norms of jus cogens; States did not need to consent to specific norms of jus
cogens since they flowed from moral precepts. VERDROSS was not alone in his views.
Previously, Judge SCHÜCKING in The Oscar Chinn Case had declared that the Permanent
Court of International Justice would never apply a treaty which would go against international
morality.412 In line with VERDROSS, some other courts have held that treaties going against
morality or against certain rules would be void. In 1948 the United States military tribunal in
re U.S. v. Alfred Krupp et al. stated that a treaty which would employ prisoners of war in
violation of the Geneva Convention of 1929 would be contra bonos mores and void under the
law of nations.413 In Re Koch the Voivodship Court for the Voivodship of Warsaw held that
Section III of the Regulations attached to the Convention of The Hague (IV) concerning the
Laws and Customs of War on Land (1907) constituted jus cogens or “rules the application of
which does not depend on the free discretion of any State.”414 Furthermore, the International
Law Commission used a similar conception of jus cogens when starting its codification of the

409
A. VERDROSS, “Jus Dispositivum and Jus Cogens in International Law”, American Journal of International
Law 1966, 56; B. SIMMA, “The Contribution of Alfred Verdross to the Theory of International Law”, European
Journal of International Law 1995, 51; see also: F.A. VON DER HEYDTE, Völkerrecht, Vol. I, Cologne, Verlag
für Politik und Wirtschaft, 1958, 23.
410
A. VERDROSS, “Forbidden Treaties in International Law”, American Journal of International Law 1937, 572.
411
Ibid.
412
Seperate Opinion Judge SCHÜCKING, The Oscar Chinn Case (United Kingdom v. Belgium), Judgment, PCIJ
Publ., Series A/B, No. 63, 149-150.
413
Re United States v. Alfred Krupp et al., Trials of War Criminals before the Nuremberg Military Tribunals
under Control Council Law No. 10, Vol. IX, 1950, 1395.
414
Voivodship Court of Warsaw, Re Koch, 9 March 1959, 30 International Law Reports 1966, 503. The District
Court of Tokyo did however hold that Article 46, (2) of the same convention did not constitute jus cogens:
District Court of Tokyo, Shuikōsha case, 28 February 1966, Japanese Annual of International Law 1969, 113
et seq.

99
law of treaties. In 1953 it proposed Draft Article 15 stating that 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.415 Special Rapporteur
LAUTERPACHT added that the principles of international public policy needed not necessarily
have been crystallized in a clearly accepted rule of law, entailing that the acceptance of the
norm as a rule of positive international law was not required.416 He added though that these
norms may be laid down in a specific rule of international law and that they could result from
general principles of law recognized by civilized nations. However, since general principles
of law are generally not considered to be a formal source of law, or in other words are not a
result of a law-making procedure and thus not posited, the link with natural law remains alive.
This is also corroborated by the fact that his thought and those of VERDROSS are similar
because both point to ordre public not necessarily crystallized in rules of law and general
principles of law as the origin of jus cogens norms.417 Yet, the introduction of ordre public
also met with scepticism in part of the doctrine and even outright hostility. Some did not
accept the position that the object of a treaty could be limited, so that States had a complete
freedom of action.418 SCHWARZENBERGER was more nuanced. While he was of the opinion
that the concept of jus cogens was not accepted in international law, he left the possibility
open that States would introduce a conventional jus cogens. As a result, States could agree
among themselves not to derogate from agreed norms in a particular convention, but jus
cogens did not exist in customary international law, outside these conventions.419
Interestingly, the possibility of a conventional jus cogens was also recognized by Judge
SCHÜCKING in The Oscar Chinn Case.420

112. Although reference to ordre public lingered on during the debates within the
International Law Commission and during the Vienna Conference,421 gradually the

415
Special Rapporteur LAUTERPACHT, “Report on the Law of Treaties”, Yearbook of the International Law
Commission 1953, Vol. II, 154.
416
Ibid., 155.
417
A.M. WEISBURD, “The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in Bonsia-
Herzegovina”, Michigan Journal of International Law 1995-1996, 14.
418
J. NISOT, “Le concept de jus cogens envisage par rapport au droit international”, Revue Belge de Droit
International 1968, 1; F. VON LISZT and M. FLEISCHMANN, Das Völkerrecht systematisch dargestellt, Berlin,
Springer, 1925, 12; A. CAVAGLIERI, “Règles générales du droit de la paix”, Recueil des Cours 1929-I, 320-323
and 330; C.W. JENKS, The Prospects of International Adjudication, London, Stevens & Sons, 1964, 504. Even
today there is still some opposition to the concept of jus cogens: A.M. WEISBURD, “The Emptiness of the
Concept of Jus Cogens, as Illustrated by the War in Bonsia-Herzegovina”, Michigan Journal of International
Law 1995-1996, 24 et seq; M.J. GLENNON, “De l’absurdité du droit imperative (jus cogens)”, Revue Générale
de Droit International Public 2006, 529 et seq.
419
G. SCHWARZENBERGER, The Inductive Approach to International Law, London, Stevens & Sons, 1965, 100;
G. SCHWARZENBERGER, “International Jus Cogens?”, Texas Law Review 1964-1965, 476; G.
SCHWARZENBERGER, “The Problem of International Public Policy”, Current Legal Problems 1965, 194. See
also: D. ANZILOTTI, Cours de droit international, Vol. I, Paris, Sirey, 1929, 98.
420
Seperate Opinion Judge SCHÜCKING, The Oscar Chinn Case (United Kingdom v. Belgium), Judgment, PCIJ
Publ., Series A/B, No. 63, 148-149.
421
See: YASSEEN, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 37 and § 41; TABIBI, 683rd Meeting of the International Law Commission, l.c., §§
44-45; PAL, 683rd Meeting of the International Law Commission, l.c., § 64; BARTOŠ, 683rd Meeting of the
International Law Commission, l.c., § 81; AMADO, 684th Meeting of the International Law Commission, l.c., §
14; TUNKIN, 684th Meeting of the International Law Commission, l.c., § 24; DE LUNA, 684th Meeting of the
International Law Commission, l.c., § 61; PESSOU, 705th Meeting of the International Law Commission,

100
relationship between jus cogens and natural law was eroded and in the end severed. First, the
requirement that a norm of jus cogens should be found in a principle or rule of international
law was introduced,422 followed by the introduction of a definition that norms of jus cogens
were norms of general international law from which no derogation is permitted.423
Furthermore, the International Law Commission made it clear that States could change the
content of jus cogens norms by concluding a multilateral treaty, the consensual instrument par
excellence.424 Thus, in 1963, ten years later, Draft Article 13 (1) provided that a treaty is
contrary to international law and void if its object or execution involves the infringement of a
general rule or principle of international law having the character of jus cogens, defined as a
norm of general international law from which no derogation was permitted, in the end
culminating in Draft Article 50 establishing that a treaty is void if its 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.425 From this it becomes clear that a rule of jus cogens needs to belong to
general international law, although it could be said that its function remained the ordre public
of the international legal order and that therefore an important role is reserved for
international courts. In any event, what was left unclear by the International Law Commission
was how and by whom norms of jus cogens were to be identified. Indeed, Draft Article 50 did
not allow identifying which norms of general international law did not permit derogation.426 It
was therefore no surprise that within the International Law Commission and amongst States
there was support to provide for a dispute settlement mechanism, for instance arbitration or
establishing jurisdiction of the International Court of Justice, for claims brought to invalidate
a treaty on the basis of jus cogens.427 Consequently, it would be up to the international courts

Yearbook of the International Law Commission 1966, Vol. I, § 60; ROSENNE, 828th Meeting of the International
Law Commission, l.c., § 21.
The view of jus cogens as an international ordre public was also present at the Vienna Conference: Mexico,
52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties, Official
Records, Vol. I, 1969, § 7; Kenya, 52nd Meeting of the Committee of the Whole, l.c., § 29; Nigeria, 52nd
Meeting of the Committee of the Whole, l.c., § 48; United Kingdom, 53th Meeting of the Committee of the
Whole, l.c., § 60; Cyprus, 53rd Meeting of the Committee of the Whole, l.c., 1969, § 68; India, 54th Meeting of
the Committee of the Whole, l.c., § 18; Czechoslovakia, 55th Meeting of the Committee of the Whole, l.c., § 25;
Federal Republic of Germany, 55th Meeting of the Committee of the Whole, l.c., § 30; Switzerland, 56th
Meeting of the Committee of the Whole, l.c., § 26; Monaco, 56th Meeting of the Committee of the Whole, l.c., §
33; Malaysia, 56th Meeting of the Committee of the Whole, l.c., § 50; Turkey, 19th Plenary Meeting, United
Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 64; Costa Rica, 20th Plenary
Meeting, l.c., § 52; Belgium, 20th Plenary Meeting, l.c., 1970, § 57; Libya, 20th Plenary Meeting, l.c., § 62.
422
Special Rapporteur FITZMAURICE, “Third Report on the Law of Treaties”, Yearbook of the International Law
Commission 1958, Vol. II, 26; concerning unethical treaties, they were considered to be valid, but a tribunal
could refuse to take cognizance of them or to apply them according to Draft Article 20: Ibid., 28.
423
Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the International Law
Commission 1963, Vol. II, 39.
424
“Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the International Law Commission
1966, Vol. II, 248.
425
Ibid., 183.
426
E. SCHWELB, “Some Aspects of International Jus Cogens as Formulated by the International Law
Commission”, American Journal of International Law 1967, 948-949 and 963; K. ZEMANEK, “How to Identify
Peremptory Norms of International Law”, in P.-M. DUPUY et al. (eds), Völkerrecht as Wertordnung, Festschrift
für Christian Tomuschat, Kehl, Engel, 2006, 1104.
427
See discussions in 699th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, 170 et seq; 700th Meeting of the International Law Commission, l.c., 176 et seq;

101
and arbitrations to clarify which rules of general international law belong to jus cogens,428 a
function which is in line with the powers of national courts in cases of invalidity of contracts
for infringement of the ordre public. However, during the Vienna Conference an amendment
of Greece, supported by Spain and Finland, was presented to introduce after the words general
international law the words “recognized by the international community as a norm”, which in
the end led up to the final wording of Article 53 that a norm needs to be accepted and
recognized by the international community of States as a whole.429 Special Rapporteur
WALDOCK did approve of the amendment since in his view the general acceptance by States
was already included in Draft Article 50 and the amendment would make the wording of the
provision more clear.430 Due to the amendment at the Vienna Conference a new element of
identification, albeit rather formal, was introduced. It is the international community of States
as a whole which will have the authority to identify and change norms of jus cogens and not,
as could previously be argued an international court, in particular the International Court of
Justice. It might therefore seem at first glance that the Commission has adopted the solution
of SCHWARZENBERGER that jus cogens comes into existence if recognized by States. Yet, it
has to be pointed out that VERDROSS did accept as a first group of jus cogens norms several

Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the International Law
Commission 1963, Vol. II, 87 et seq; “Draft Articles on the Law of Treaties, with Commentaries”, Yearbook of
the International Law Commission 1966, Vol. II, 248; Commentary of Turkey, Yearbook of the International
Law Commission 1966, Vol. II, 341; Commentary of the United Kingdom, Yearbook of the International Law
Commission 1966, Vol. II, 344; United States of America, 784th Meeting of the Sixth Committee, General
Assembly Official Records 1963, § 39; Pakistan, 791st Meeting of the Sixth Committee, General Assembly
Official Records 1963, § 30; Italy, 793rd Meeting of the Sixth Committee, General Assembly Official Records
1963, § 12 (It has to be noted that these comments concern Draft Article 51 which provided for peaceful
settlement of disputes in accordance with Article 33 Charter of the United Nations for all cases of nullity,
termination, withdrawal and suspension: Draft Article 51, “Report of the International Law Commission
Covering the Work of Its Fifteenth Session”, Yearbook of the International Law Commission 1963, Vol. II,
214); Finland, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 12; Lebanon, 52nd Meeting of the Committee of the Whole, l.c., §§ 45-47;
Turkey, 53rd Meeting of the Committee of the Whole, l.c., §§ 7-8; Colombia, 53rd Meeting of the Committee of
the Whole, l.c., § 27; France, 54th Meeting of the Committee of the Whole, l.c., § 29; Australia, 55th Meeting of
the Committee of the Whole, l.c., § 14; Japan, 55th Meeting of the Committee of the Whole, l.c., § 30; Federal
Republic of Germany, 55th Meeting of the Committee of the Whole, l.c., § 35; Belgium, 55th Meeting of the
Committee of the Whole, l.c., § 47; Canada, 56th Meeting of the Committee of the Whole, l.c., § 23; Norway,
56th Meeting of the Committee of the Whole, l.c., § 40. Discussion in the 80th Meeting of the Committee of the
Whole, l.c., §§ 17-28; Turkey, 19th Plenary Meeting, United Nations Conference on the Law of Treaties,
Official Records, Vol. II, 1970, § 66; Italy, 20th Plenary Meeting, l.c., § 40; Netherlands, 20th Plenary Meeting,
l.c., § 47; Senegal, 20th Plenary Meeting, l.c., § 59; Austria, 20th Plenary Meeting, l.c., § 64; Ireland, 20th
Plenary Meeting, l.c., § 67; Japan, 20th Plenary Meeting, l.c., § 68; In the end, the Vienna Conference under
pressure of Western States adopted a dispute settlement mechanism for disputes over jus cogens norms
providing for adjudication before the International Court of Justice, unless the parties to the dispute opt for
arbitration Article 66 (a) Vienna Convention on the Law of Treaties (1969): I. M. SINCLAIR, “Vienna
Conference on the Law of Treaties”, International and Comparative Law Quarterly 1970, 68-69.
428
W. LEVI, “The International Ordre Public”, Revue de Droit International, de Sciences Diplomatiques et
Politiques 1994, 71.
429
Reports of the Committee of the Whole, United Nations Conference on the Law of Treaties, Official
Records, Documents of the Conference, 1970, 174; the amendment was sent to the Drafting Committee which
slightly modified it: Summary Records of the Plenary Meeting and of the Meetings of the Committee as a
Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, 333 and 471.
430
WALDOCK (Expert-Consultant), 56th Meeting of the Committee of the Whole, United Nations Conference on
the Law of Treaties, Official Records, Vol. I, 1969, § 81.

102
norms of customary international law, which were compulsory.431 Also, the possibility of an
international ordre public, binding the whole international community is retained, since for
VERDROSS ordre public consisted of imperative rules of customary international law and
moral precepts; only the latter have become excluded. Moreover, there is some difference
between Article 53 and the position of SCHWARZENBERGER. First, Article 53 accepts the
possibility of general jus cogens norms, it even presumes that jus cogens norms are in the first
place norms which are binding on the overall majority of States or are even universal in
nature,432 where SCHWARZENBERGER has in the first place specific jus cogens in mind.433
Second, the vehicle to establish jus cogens norms for SCHWARZENBERGER is the treaty, or the
express recognition of States that a certain norm is peremptory.434 Yet, Article 53 does not
merely speak of recognition, but also of acceptance which refers to the way in which
customary norms are established, namely by a shared belief or conviction. So, jus cogens can
also be established by a common conviction among States that a norm is peremptory and this
common conviction might well flow from shared moral understandings.435 As a result, it can
be said that Article 53 is a mixture of “Verdrossian” jus cogens and “positivistic” jus
cogens.436

113. In conclusion, the insertion of acceptance and recognition by States has sounded the
death knell of the natural law approach and has hence entrenched the concept of jus cogens in
positive international law. Therefore, despite some voices to the contrary,437 it cannot be
regarded anymore as reflecting norms of natural law. The concept of jus cogens as laid down
in Article 53 at first sight may seem to be intrinsically linked to the classical doctrine of
natural law international law, which held that States could not depart by treaties or custom of
certain norms. This is due to the perception that peremptory norms are hierarchically superior
to ordinary norms of international law because derogation of them is not permitted and leads
to the nullity of the legal act going against the peremptory norm. This process is indeed very
reminiscent of the relationship between natural law and positive law in which positive law

431
A. VERDROSS, “Forbidden Treaties in International Law”, American Journal of International Law 1937, 572.
432
BARTOŠ, 705th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, 214, § 72; A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature,
ses functions”, Recueil des Cours 1981-III, 93; A. ORAKHELASHVILI, Peremptory Norms in International Law,
Oxford, Oxford University Press, 2006, 39.
433
G. SCHWARZENBERGER, “International Jus Cogens?”, Texas Law Review 1964-1965, 476; G.
SCHWARZENBERGER, “The Problem of International Public Policy”, Current Legal Problems 1965, 194.
434
Ibid.
435
In this respect the judgment of the Bundesverfassungsgericht is instrumental: in 1965, before the inclusion of
the amendment in the Draft Article it held: “The quality of such peremptory norms may be attributed only to
such legal rules as are firmly rooted in the legal conviction (emphasis added) of the community of nations and
are indispensable to the existence of the law of nations as an international legal order and the observance of
which can be required by all members of the international community”: S.A. RIESENFELD, “Jus Dispositivum
and Jus Cogens in the Light of a Recent Decision of the German Supreme Constitutional Court”, American
Journal of International Law 1966, 513 (trans.).
436
I therefore do not subscribe to the sharp distinction made by WEISBURD between “Verdrossian” and
positivistic jus cogens: A.M. WEISBURD, “The Emptiness of the Concept of Jus Cogens, as Illustrated by the
War in Bonsia-Herzegovina”, Michigan Journal of International Law 1995-1996, 32-40.
437
K. PARKER and L.B. NEYLON, “Jus Cogens: Compelling the Law of Human Rigths”, Hastings International
and Comparative Law Review 1988-1989, 419-422; M.W. JANIS, “The Nature of Jus Cogens”, Connecticut
Journal of International Law 1988, 361-362.

103
going against the norms of natural law is void.438 Furthermore, classical natural law fulfilled
the function which jus cogens fulfils in the current international legal order.439 Consequently,
it is not far-fetched to state that the concept of jus cogens reintroduces the tradition of natural
law in the international legal order after its exclusion by positivism. Therefore, it could be
argued that jus cogens norms do not need the consent of States since they reflect prior
existing, higher norms of natural law. The acceptance by States of such norms in positive
international law merely serves as a more precise articulation of these natural law
prescriptions. However, despite the resemblance between natural law and jus cogens, they are
different concepts since it is not because both seem to have an identical trait, the impossibility
of individual State consent to change the norm, that both concepts are completely the same.
For traditionally natural law is pre-existing and cannot be changed. It addresses the
collectivity of States and imposes limits on them. Peremptory norms however lay down limits
for individual States.440 Moreover, peremptory norms are created by the international
community of States by recognizing or accepting that a norm is jus cogens. The effect of this
acceptance or recognition is that the law-making capacity of the individual States has become
limited; a limited group of States cannot derogate from the peremptory norm. Furthermore,
unlike the classical conception of natural law, peremptory norms might be changed if the
international community of States as a whole adopts a new norm of jus cogens (partially)
contradicting the older.441 As a result, jus cogens norms depend on the acceptance or
recognition of the international State community, which holds the key to transform an
“ordinary” rule, which is subject to derogation, into a peremptory norm. Therefore, I now turn
to this international community of States as a whole in order to further our understanding of
the concept of jus cogens.

B. International community of States as a whole

114. In this section I will examine the notion of international community of States as a
whole. For a better understanding of this element of Article 53 Vienna Convention on the
Law of Treaties, I will first examine the issue of international community. First, the definition
of community will be looked into, followed by an assessment whether in the international
sphere such a community does exist and of which members it is composed of. Second,
departing from the foregoing, the role and place of the international community of States as a
whole will be examined.

438
A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours
1981-III, 24. In this respect, attention should be drawn to the position of DE VITORIA, who did made a
distinction between jus naturale and the possibility of the world community to adopt rules which were in the
interest of all its members and can only be changed by the totality of the world community, and not by
individual States: F. DE VITORIA, De potestate civili, 21. Accordingly, natural law and a sort of jus cogens were
distinct in the view of DE VITORIA.
439
Ibid., 23.
440
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 67; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003, 19.
441
A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours
1981-III, 24.

104
1. Existence of an international community

115. The German sociologist TÖNNIES is famed for his distinction between society on the
one hand and community on the other hand, 442 a distinction which is taken up by international
lawyers. According to TÖNNIES a society merely denotes factual interconnections and
interrelations between individuals. Furthermore, relations in a society are characterized by a
necessity of social exchanges and a defence of particular individual or group interests.443 A
society is also created, consciously willed by its members. In opposition, a community is a
group of individuals held together by common values, culture, traditions etc. It comes
spontaneously into existence by a natural and organic will, flowing from feelings of
solidarity.444 Furthermore, it has been held that a society must have a community at its basis,
while a community is not necessarily organized in a society. From this perspective,
historically a community precedes a society, which is an individualistic, rationalised
organized order coming into existence by a social contract defining the legal order.445
However, it has been remarked that in the international sphere, a society (of States) has
preceded a community (of States), or in other words that there was no international
community at the basis of the international society. From a philosophical point of view, States
were living in a state of nature before they concluded a social contract establishing how their
legal relations would take form. Not surprisingly it was held that consent between States was
necessary in order for a State to be bound internationally. It was consensus between States on
the basis of rational self-interest which led to the establishing of international rights and
obligations, not common values. As a result, if no such consensus could be demonstrated,
States were free to behave as they pleased without having to take into account common
values. The dictum of the S.S. Lotus provides a good illustration of this train of thought:
international law emanates from the free will of States in order to regulate relations between
co-existing independent communities or with the view to the achievement of common
aims.446 States are considered as communities living next to each other and common interests
merely exist if States have agreed to them.

116. The question now arises whether at the international level one can nowadays speak of
the existence of an international community or of a mere international society. A community
entails that the international actors, in particular States, are held together by or subscribe to
common values and have common interests.447 Some have denied the existence of such

442
F. TÖNNIES, Gemeinschaft und Gesellschaft, Darmstadt, wissenschaftliche Buchgesellschaft, 1979,
xlvii+224p.
443
P. KLEIN, “Les problèmes soulevés par la référence à la ‘communauté internationale’ comme facteur de
legitimité”, in O. CORTEN (ed.), Droit, legitimité et politique extérieure, Brussels, Bruylant, 2001, 282.
444
R.-J. DUPUY, L’humanité dans l’imaginaire des nations, Conférences et essais du Collège de France, Paris,
Julliard, 1991, 98-99; R.-J. DUPUY, “Communauté internationale et disparités de développement”, Recueil des
Cours 1979-IV, 25.
445
R.-J. DUPUY, L’humanité dans l’imaginaire des nations, Conférences et essais du Collège de France, Paris,
Julliard, 1991, 98-99.
446
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 18; see also: C. TOMUSCHAT,
“International Law: Ensuring the Survival of Mankind on the Eve of a New Century”, 281 Recueil des Cours
1999, 73.
447
E. KWAKWA, “The International Community, International Law, and the United States : Three in One, Two
against One, or One and the Same?”, in M. BYERS and G. NOLLTE (eds.), United States Hegemony and the
Foundations of International Law, Cambridge, Cambridge University Press, 2003, 33; A.L. PAULUS, “The

105
commonality between actors in the international sphere coming to the conclusion that there
merely exists an international society. Besides political realists like MORGENTHAU, focusing
on power in international relations, legal scholars basing the binding character of international
law on rational self-interest equally necessarily refute the existence of an international
community based on common overarching values and interests.448 DE VISSCHER is also
sceptical whether an international community exists taking into account the individualistic
division of power in the international society. Although there does exist a certain level of
solidarity, the more vital the interests of States, for instance in the field of war and peace, the
lesser the solidarity between them since human beings tend to follow the national interest in
such instances, a situation which is not easily overcome since it flows from the attitude of
human groups and the structure of the international order. Furthermore, while the exercise of
power in the national order is institutionalized and hence impersonal, the exercise of power at
the international level follows from the historic division of power. The exercise of power at
the international level in name of an international community is thus always suspect of
enhancing the power of several States to the detriment of others. It is therefore up to the States
to defend their vital interests, leaving little room for the existence of an international
community with common values and interests.449 Even moral convictions might not help
since morality is in the first place linked to a group organized in a State and not to extra-
national morality.450
KLEIN is equally rather doubtful about the existence of an international community. He
notes that during the Kosovo-conflict the term international community was used more than
seventy times, but that there is complete inconsistency in what exactly is meant by
“international community”.451 Yet, more seriously than rhetorical (ab)use of the “international
community”, is that at the international level there is no tangible international community, but
relations between States are still in essence relations in an international society, although there
is a certain community trend.452 According to KLEIN, a community can be recognized by three
essential characteristics. First, solidarity based on common values and the pursuit of a
common goal. Although there are some common values in the international order, they are
few and their exact content is not clear at all. In any event, in the international order subjects
are more willing to enter into relations with other subjects on basis of furtherance of
individual interest, than for the pursuit of common goals and values.453 A second element is
that in a community the violation of legal rules impacts upon the whole community, which

Influence of the United States on the Concept of the ‘International Community’”, in M. BYERS and G. NOLLTE
(eds.), United States Hegemony and the Foundations of International Law, Cambridge, Cambridge University
Press, 2003, 59-60; B. SIMMA and A.L. PAULUS, “The ‘International Community’: Facing the Challenge of
Globalization”, European Journal of International Law 1998, 268; T.M. FRANCK, Fairness in International
Law and Institutions, Oxford, Clarendon Press, 1995, 10; B. SIMMA, “From Bilateralism to Community
Interest”, Recueil des Cours 1994-IV, 233 and 245; C. TOMUSCHAT, “Obligations arising for States without or
against Their Will”, Recueil des Cours 1993-IV, 211 and 227; J.A. CARRILLO SALCEDO, “Reflections on the
Hierarchy of Norms in International Law”, European Journal of International Law 1997, 588-589.
448
See: supra, No. 35.
449
C. DE VISSCHER, Théories et réalités en droit international public, Paris, Éditions Pedone, 1970, 111-116.
450
Ibid., 119.
451
P. KLEIN, “Les problèmes soulevés par la référence à la ‘communauté internationale’ comme facteur de
legitimité”, in O. CORTEN (ed.), Droit, legitimité et politique extérieure, Brussels, Bruylant, 2001, 263 and 275
et seq.
452
Ibid., 282.
453
Ibid., 283-288.

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can be considered to be affected by the breach, while in a society it is only the member which
suffers the wrongful conduct that can take action to restore his right. Despite the emergence of
the concept of obligations erga omnes, or obligations owed to the international community as
a whole and in which each State has an interest in the upholding of these obligations,454 the
international legal order remains focused on the societal model in which each member only
has an individual interest in violations of obligations owed to him. Furthermore, States have
proven to be rather reluctant to invoke violations of obligations erga omnes.455 A third aspect
of a community is that sanctions have a certain symbolic function, while in a society sanctions
are aimed at restitution and restoration of the previously existing situation. However, in the
field of State responsibility, the sanction of violations of international law is merely reparation
of the victim for the suffered damage; although the individual criminal responsibility for
certain breaches of international law is indicative of a community at the international level, it
remains however too limited.456

117. These remarks on the existence of an international community do have certain merits. It
is indeed correct to point out that States often are more concerned with their self-interests than
with common values and goals, as DE VISSCHER points out. I also subscribe to KLEIN’s
position that the concept of international community is (ab)used to give a certain legitimacy to
conduct where none would otherwise have existed. Both are also correct to state that the
concept is unclear.457 Yet, despite these valid remarks, I submit that in the international order
common values and goals, although limited, do exist and that it is therefore correct to speak of
the existence of an international community. Firstly, as DE VISSCHER himself pointed out, the
idea of an international community, although not a legal entity or a political reality, can be
very much alive as a sort of idée civilisatrice transforming society and political reality.458 But
then, this idée civilisatrice, the vision of an international community as a legal and political
reality is a common value or goal to be achieved. Thus, there is a common interest in the
international society after all so that from a sociological point of view one could speak of a
(limited) community. There is not merely a society of juxtaposed entities striving for the
satisfaction of their individual interest, but also aspiring for a common ideal so that the
sociological community becomes a political and legal reality. The mere fact that this is not
realized has no impact on the sociological community; it could well be that a community has
certain values which are not taken into account on the political level because the political elite
is merely concerned with its own interests so that the values of the community are not laid
down in law, but that does not impair the existence of community values in the society that is
governed. Furthermore, even if States for their vital interests can only rely on their own, that
does not necessarily mean that there are no common values. It could be perfectly conceivable
that States do have common values, but that because of the characteristics of the international
order, in particular its decentralized nature, they can only individually realize that common

454
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, §§ 33-34.
455
P. KLEIN, “Les problèmes soulevés par la référence à la ‘communauté internationale’ comme facteur de
legitimité”, in O. CORTEN (ed.), Droit, legitimité et politique extérieure, Brussels, Bruylant, 2001, 288-291.
456
Ibid., 291-294.
457
C. DE VISSCHER, Théories et réalités en droit international public, Paris, Éditions Pedone, 1970, 110 ; P.
KLEIN, “Les problèmes soulevés par la référence à la ‘communauté internationale’ comme facteur de
legitimité”, in O. CORTEN (ed.), Droit, legitimité et politique extérieure, Brussels, Bruylant, 2001, 263-264.
458
C. DE VISSCHER, Théories et réalités en droit international public, Paris, Éditions Pedone, 1970, 123-124.

107
value, because there are no centralized implementation mechanisms. For instance, it is
perfectly possible that a community considers that violence goes against community values,
but that because of the absence of centralized authorities, the members of the community have
to rely on themselves to protect themselves and their relatives from violence.459 By analogy,
States can consider the use of force or aggression as going against the values of the
international community, but realize that in order to achieve those values they need to be able
to self-defend and therefore have a deterrent standing army or try to create mechanisms to
counter the use of force. The history of international law in the twentieth century was exactly
the striving for the outlawing of the use of force and the creation of institutions which could
provide remedies for breaches of the violation, culminating in the establishing of the United
Nations.460 Despite the ineffectiveness of the United Nations during the Cold War, it can be
said that the prohibition of force has become one of the cornerstones of contemporary
international law. In any event, this ineffectiveness has resulted in regional security
organizations, so at least the submission of DE VISSCHER – the more vital the interests the
lesser the solidarity – was and is not entirely correct since regionally solidarity does exist for
the vital interest of self-defence. Moreover, besides the decentralization of the international
legal order, it has to be noted that the international legal order needs the national legal order to
have full effect.461 The values of the international community may sometimes mainly be
realized by the individual implementation of these values by individual States. For instance,
States can be said to have a common interest to prevent and prosecute genocide. However, the
Convention on the Prevention and Punishment of the Crime of Genocide establishes that the
prevention and punishment of genocide is a duty of each State individually, which requires
national implementation mechanisms.462 This remains the case after the creation of the
International Criminal Court, which provides for the complementarity principle: the Court
will only act when States are unable or unwilling to prosecute themselves.463 The main duty
of prosecution continues to rest on the State parties, which therefore need to adopt adequate
legislation. Consequently, what at first sight appears individual self-interest, may have a
community value at its basis.

118. Concerning the remarks of KLEIN, it might be true that at the international level the
amount of solidarity on the basis of common values and goals is rather limited because there
are not that many values. On the other hand, all States have become members of the United
Nations and hence subscribe to the main principles and goals of its Charter, such as the
prohibition of the use of force, the peaceful settlement of disputes, sovereign equality, non-
interference in internal affairs, furtherance of human rights, etc. Furthermore, the common

459
H. KELSEN, Pure Theory of Law, Union, New Jersey, The Lawbook Exchange, 2002, 286-287.
460
A. CASSESE, International Law in a Divided World, Oxford, Clarendon, 1986, 56.
461
Ibid., 14-15.
462
Articles V-VI Convention on the Prevention and Punishment of the Crime of Genocide (1948). The
International Court of Justice has ruled that the prevention of genocide is a separate obligation resting on each
and every (contracting) State: States have to take all necessary measures to prevent genocide from occuring not
only in their own territory, but also from happening in other States; the obligation to prevent is thus not limited
to Article VIII of the Convention, which establishes that States have to notify the relevant United Nations
organs in order to prevent genocide: Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, §§
425-431.
463
Article 17 Rome Statute of the International Criminal Court (1998).

108
values may be few, but are of the utmost importance for the international order. In any event,
even if the legally recognized values and goals might be limited, this does not entail that there
is a limited international community from a sociological point of view. For instance, although
there is no legal duty to provide development aid or other aid in case of natural disasters,
within the international community the conviction could exist that one is morally obliged to
provide assistance to developing countries or countries in need.464 Democratic governance is
also a commonly advanced value or goal, but it is doubtful that at this moment it has become
a legal obligation.465 The right to self-determination was already a common value and a goal
to be achieved before it became a legally enforceable right.466 Also, the fact that one does not
agree on the precise content of the common values of the community does not entail that there
is no community at all. One can perfectly ascribe to human dignity and the belief that human
beings have certain inalienable rights, while disagreeing about the exact content of these
rights. Furthermore, common values may conflict: should one take actions to protect the
environment from industrial waste or should one encourage industrial production to help
developing nations to escape from poverty? Or, could one use force against a State that
systematically infringes human rights?467 Whatever the answers, it is perfectly conceivable
that within the community both the protection of the environment and the eradication of
poverty, or the prohibition to use force and the protection of human rights, are accepted as
common values. Secondly, the mere fact that the international system is still decentralized
does not mean that there is no international community. First of all, the United Nations and
other international organizations, whether regional or global, bring a certain level of
centralization to the international system. Furthermore, even if the international order is still
largely decentralized in nature, it merely impacts on the effective implementation of the
community values, not on the existence of an international community as such. Primitive
societies can have, and often do have, strong community values, although they lack

464
United Nations General Assembly resolutions frequently urge or invite to provide for aid, for example: UN
General Assembly Resolution 63/147, § 4; UN General Assembly Resolution 61/229, § 19; UN General
Assembly Resolution 61/218, §§ 4-5; UN General Assembly Resolution 61/217, §§ 2-3; UN General Assembly
Resolution 61/200, § 2; UN General Assembly Resolution 61/169, § 20; UN General Assembly Resolution
60/220; UN General Assembly Resolution 60/219, §§ 4-5; UN General Assembly Resolution 60/196, § 3; UN
General Assembly Resolution 59/279, § 2; UN General Assembly Resolution 59/244, § 2 and § 8; UN General
Assembly Resolution 59/233, § 2; UN General Assembly Resolution 59/185, § 17.
465
B. SIMMA and A.L. PAULUS, “The ‘International Community’: Facing the Challenge of Globalization”,
European Journal of International Law 1998, 274; O. SCHACHTER, “The Decline of the Nation-State and Its
Implications for International Law”, Columbia Journal of Transnational Law 1997, 19; but see: T.M. FRANCK,
Fairness in International Law and Institutions, Oxford, Clarendon, 1995, 138; T.M. FRANCK, “The Emerging
Right of Democratic Governance”, American Journal of International Law 1992, 46; F.R. TESÓN, “Collective
Humanitarian Intervention”, Michigan Journal of International Law 1995-1996, 331 et seq.
466
A. CASSESE, International Law in a Divided World, Oxford, Clarendon, 1986, 131 et seq; A. CASSESE, Self-
Determination of Peoples, A Legal Reappraisal, Cambridge, Cambridge University Press, 1995, 11-33; S.
PRAKASH SINHA, “Is Self-Determination passé”, Columbia Journal of Transnational Law 1973, 206 et seq;
M.B. KIRBY, “Peoples’ Rights and Self-Determination”, Bulletin of the Australian Society of Legal Philosophy
1993, 27-30; see also: Decision of the Council of the League of Nations on the Åland Islands, League of
Nations Official Journal, September 1921, 697, in which self-determination of the Swedish minority was not
retained, but instead the Council opted for autonomy within Finland for the Swedish population of the islands.
467
For instance Belgium argued that the NATO strikes on the Federal Republic of Yugoslavia were in fact not a
prohibited exercise of the use of force, but a humanitarian intervention to protect values of a jus cogens nature:
Legality of the Use of Force (Yugoslavia v. Belgium), Request for the Indication of Provisional Measures, Oral
Statement of Belgium, CR 99/15, 10 May 1999, 16, at http://www.icj-cij.org/docket/files/105/4513.pdf.

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centralized authorities to enforce these values.468 Hence, it might be up to each and every
member of the community to ensure respect for the values of the community. Finally, the lack
of the symbolic aspect of the sanction at the international level again does not mean that there
is no community. First of all, the nature of the international community which is still largely
made up of States, makes it very difficult to apply symbolic sanctions as existing in national
jurisdictions. States being abstract legal entities cannot be put in jail. Of course, they can be
subjected to criminal fines, a possibility which does not exist in international law. However, it
is not because a legal system does not provide for legal symbolic sanctions, that there would
not be a community since the community might apply non-legal symbolic sanctions. For
instance, at the international level, States can break off international relations with other
States which grossly violate community values, thus isolating the perpetrating State or even
effectively ostracizing it from the international community. Since there is no legal obligation
to have diplomatic relations with another State, this sanction is not a legal one, but can still be
regarded as a community sanction. In any event, some legal symbolic sanctions exist, for
instance, the suspension or ejection of member States of the United Nations,469 a possibility
that also exists in regional organizations.470 Furthermore, the Security Council may take
sanctions against certain States because they do not live up to the goals and principles of the
Charter. Added to this, is the “naming and shaming” of States that do not live up to their
human rights obligations by international organizations and non-governmental organizations,
thus creating a stigma which these States try to avoid. Moreover, after the entry into operation
of the International Criminal Court, whose jurisdiction is accepted by the majority of States, it
cannot be said that individual criminal prosecution for international crimes is in an embryonic
stage or too limited to speak of an international community.

119. From the foregoing, it is clear that the nature or characteristics of the international
system do not impair the existence of an international community in the sociological meaning.
Indeed, one can identify various common values at the international level, such as the
preservation of the natural environment, respect for human rights, bringing to justice
perpetrators of international crimes, respect for the law in international relations, peace, etc.
Consequently, the actors in the international society live under commonly shared values and
strive for common goals. This is not merely the result of ethical convictions, but also results
from reality; States, which over time have more and more come to interact with each other
and have developed stable relationships in a growing number of fields need to continue these
contacts in order to ensure the continued existence of the system of coexistence and to
promote certain common interests.471 Furthermore, globalization has led to interdependence at
the international level, requiring global solutions for problems affecting all members of the
community. Actors are thus partially forced to converge on certain goals and solutions. As a
result, there is a shift from coexistence of actors, in particular States, at the international level

468
See: C. TOMUSCHAT, “Obligations arising for States without or against Their Will”, Recueil des Cours 1993-
IV, 218; H. KELSEN, Pure Theory of Law, Union, New Jersey, The Lawbook Exchange, 2002, 286-287.
469
Articles 5-6 Charter of the United Nations (1945).
470
Article 7 Consolidated Version of the Treaty on European Union (2007); Article 8 Statute of the Council of
Europe (1949); Article 9 Charter of the Organization of American States (1948); Article 30 Constitutive Act of
the African Union (2000).
471
R. AGO, “Communauté internationale et organisation internationale”, in R.-J. DUPUY (ed.), A Handbook on
International Organizations, Dordrecht, Nijhoff, 1988, 4; R.-J. DUPUY, Dialectiques du droit international,
Souverainité des États, communauté internationale et droits de l’humanité, Paris, Pedone, 1999, 19-20.

110
(or an international society) to cooperation, which implies a set of shared values and goals (or
an international community), without however necessarily leading to the abolition of
coexistence. This was already recognized by FRIEDMANN in the 1960’s, who noted that in the
legal field, international law was moving from a law of coexistence to a law of cooperation.472

2. Members of the international community

120. After having established that an international community does exist, the issue now
arises what the exact definition of the international community is, an issue which is
intrinsically linked with the question who the actors of the international community are. The
concept of international community is not novel since it appeared already before the twentieth
century in international discourse. In essence it meant the international legal order ruling the
relations between (European) States. Other States could enter into this community if they
proved not only to be politically independent, but also to have met a certain standard of
civilization. When it was allowed to enter the community the relations between it and the
other members became continuously governed by law establishing rules flowing from treaty
and custom on the basis of juridical equality.473 According to this conception, what made the
international society an international community was precisely the existence of a legal order
between its only actors, States. So not only “ubi societas, ibi jus”, but also and in the first
place, “ubi jus, ibi societas (or communitas)”. This point of view is not antiquated and finds
support in contemporary doctrine. For FRANCK only the existence of international law was
able to turn the international society in an international community, resembling a ‘rulebook
community’ in Dworkinian terms.474 Or, more specifically, according to him the international
community means the recognition by States of the existence of an ultimate rule or set of rules
of recognition or process by which the legitimacy of all other rules and procedures can be
tested.475 This conception of international community as a community based on law is also

472
W. FRIEDMANN, The Changing Structure of International Law, London, Steven & Sons, 1964, xvi + 410p.
473
E. MYLES, “L’ ‘Humanité, la ‘Civilization’ et la ‘Communauté internationale’ dans la perspective de la fin
du régime impérial russe: Trois concepts ‘si pertinent de nos jours’”, Annuaire Français de Droit International
2004, 35; M. LACHS, “Quelques réflexions sur la communauté internationale”, in M. VIRALLY (ed.), Le droit
international au service de la paix, de la justice et du développement: Mélanges Michel Virally, Paris, Pedone,
1991, 350-351; M. LACHS, “Legal Framework of an International Community”, Emory International Law
Review 1992, 329-330.
474
T.M. FRANCK, The Power of Legitimacy among Nations, Oxford, Oxford University Press, 1990, 202; in a
later work FRANCK considered the international community not merely grounded on formal legitimacy, but also
on material fairness, finally leading to an international community of principles: T.M. FRANCK, Fairness in
International Law and Institutions, Oxford, Clarendon, 1995, 203. According to DWORKIN a rulebook
community is a community whose members accept a general commitment to obey rules established pursuant to
a certain process special to that community. The members accept their obligations laid down in rules, but do not
go beyond the obligations established in the rules of the community; a community of principles has in common
with the rulebook community that a political community requires a shared understanding, but goes further in the
view of what this shared understanding entails: members accept that they are tied together by common
principles, not merely rules established by political compromise. See: R. DWORKIN, Law’s Empire, London,
Fontana Press, 1986, 209-211.
475
T.M. FRANCK, “Legitimacy in the International System”, American Journal of International Law 1988, 754.
See also DANILENKO, who considers consensus on the procedural aspects of decision making in the community
as the basic constitutional element of the international community: G.M. DANILENKO, “The Changing Structure
of the International Community”, Harvard International Law Journal 1991, 355.

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present with MOSLER since he considers the international society as a legal community. For
such international legal community two elements are needed, namely the existence side-by-
side of a certain number of independent societies organized on a territorial basis, and a
psychological element in the form of a general shared conviction that these societies are
mutually bound by rules laying down rights and obligations.476 Furthermore, he adds that
what is needed to turn any society, including the international society of coexisting States,
into a legal community is the presence of a constitution. This could open the possibility of a
community which is not only defined by the presence of a legal order, but also by common
values enshrined in the constitution. Although he does not address the issue in his lecture for
the Academy of International Law, in another contribution he has expressed the view that the
constitution also provides for common values.477 In any event, MOSLER accepts that in any
community there must be a minimum of uniformity called the common ordre public which
contains the legal values considered to be the goal of the community, legal principles which
every member of the community has to respect and legal rules which are binding within the
community.478 Finally, this point of view on the international community is not entirely
absent in the ideas of TOMUSCHAT since he defines the international community as a society
of States, international organizations and non-governmental organizations, governed by law,
which are responsible for security and the conditions of existence of humankind.479 Although
he includes not only States in his society, one of the elements which turn this society in a
community is precisely because the society is governed by law.480

476
H. MOSLER, “The International Society as a Legal Community”, Recueil des Cours, 1974-IV, 18; H.
MOSLER, “International Legal Community”, in R. BERNHARDT and R.L. BINDSCHEDLER (eds.), Encyclopedia of
Public International Law, Vol. II, Amsterdam North-Holland, 1995, 1252: “The international legal community
is the legal aspect of the international society. If any society, however unorganized, is to be a community rather
than simply a collection of individuals, the one constitutional rule that is essential is that law be created and
developed. However rudimentary the rule as to the formation of and evolution of law may be, it must
necessarily exist.” Concerning membership of the international society MOSLER is more nuanced in
“Völkerrecht als Rechtsordung”, in which he states that States form the backbone of the international society,
but also adds international organizations as the new organizational element of the international society; the
human peron as a subject of international does however not impact the structure of the international society: H.
MOSLER, “Völkerrecht als Rechtsordnung”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
1976, 26-31. Nevertheless, States remain the subjects for which the international legal community exists: Ibid.,
35.
477
H. MOSLER, “Völkerrecht als Rechtsordnung”, Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht 1976, 36-37.
478
H. MOSLER, “The International Society as a Legal Community”, Recueil des Cours 1974-IV, 33.
479
C. TOMUSCHAT, “Die internationale Gemeinschaft”, Archiv für Völkerrecht 1995, 6-7. He however notes that
the international community needs more than mere rules, but also that these rules are put into effect: Ibid., 19.
Furthermore, he has stated that the origin of the contemporary international community cannot be explained by
legal rules since legal rules derive their authority from an already existing community: C. TOMUSCHAT,
“Obligations arising for States without or against Their Will”, Recueil des Cours 1993-IV, 221. Later on he
reaffirmed his earlier position that a community at the international level presupposes that States live under a
constitution which they are bound to respect: C. TOMUSCHAT, “International Law: Ensuring the Survival of
Mankind on the Eve of a New Century”, 281 Recueil des Cours 1999, 73.
480
TOMUSCHAT has also noted that there exists an interdependence between the two concepts of international
community and constitution: any legal community should be governed by law, while it is exactly the function of
the constitution to make sure that the relations between members of a community are governed by law: C.
TOMUSCHAT, “Obligations arising for States without or against Their Will”, Recueil des Cours 1993-IV, 219-
220.

112
121. The main problem with these points of view is that it presupposes that law can form a
community, which is a rather naïve thought. First, a community does not need a legal order to
be labelled a community since it is created spontaneously and is based upon a feeling of
solidarity flowing from common values. A family or a religious group can be considered a
community, without having a legal order regulating their relations. Furthermore, a society can
have a legal order and still not be a community: a society based on the law of coexistence, as
was the case with the international society, does not presume shared common values and
goals.481 Moreover, the reasoning that the international society is a community because of the
existence of international law is circular, since international law is at the same time the
normative structure of the international community, as the confirmation of the existence of the
international community. It also overestimates the capacity of law to hold together a
society/community by legal norms alone and underestimates the importance of consensus on
common values as a condition for a legal order.482 On the other hand, law can strengthen an
existing community or help a nascent community to consolidate.483

122. Another part of doctrine does not consider the international community as an
international legal community, but fills the concept in in a more descriptive way. Some
scholars still focus heavily on States as the sole or most important actor of this international
community. According to AGO the international community is a human collectivity which in
the first place distinguishes itself from other communities by having as primary members,
political and sovereign entities, or States.484 International organizations have equally become
members of this community, but they are not necessary members, but entities artificially
created by the primary members of the community, States.485 The conception of an
international community as (primarily) comprised of States can also be found with DUPUY,486
REUTER,487 GUGGENHEIM,488 ABI-SAAB,489, DANILENKO490 and FASSBENDER491. It finds

481
Unless one considers the system of coexistence as a negative form of an international community: R.-J.
DUPUY, La Communauté internationale entre mythe et histoire, Paris, Economica, 1986, 147; G. ARANGIO-
RUIZ, “The Normative Role of the General Assembly Resolutions and the Declaration of Principles of Friendly
Relations”, Recueil des Cours 1972-III, 655; G. ABI SAAB, “Whither the International Community”, European
Journal of International Law 1998, 251.
482
B. SIMMA and A.L. PAULUS, “The ‘International Community’: Facing the Challenge of Globalization”,
European Journal of International Law 1998, 227; B. SIMMA, “From Bilateralism to Community Interest”,
Recueil des Cours 1994-IV, 245-246.
483
B. FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia
Journal of Transnational Law 1998, 566.
484
R. AGO, “Communauté internationale et organisation internationale”, in R.-J. DUPUY (ed.), A Handbook of
International Organizations, Dordrecht, Nijhoff, 1988, 3.
485
Ibid., 11-12.
486
P.-M. DUPUY, “Humanité, communauté et efficacité de droit”, in R. AGO et al. (eds.), Humanité et droit
international, Mélanges René-Jean Dupuy, Paris, Pedone, 1991, 138.
487
P. REUTER, “Principes de droit international public”, Recueil des Cours 1961-II, 431. REUTER recognizes
other societies next to the interstate society, but it is only the latter that constitutes the international community:
Ibid., 433. Furthermore, the international community has become more heterogenous by the creation of
international organizations, which figure as members of the international community next to States non-member
of these organizations: Ibid., 456.
488
P. GUGGENHEIM, “Les principes de droit international public”, Recueil des Cours 1952-I, 32-33.
489
G. ABI-SAAB, “Whither the International Community?”, European Journal of International Law 1998, 249.
490
G.M. DANILENKO, “The Changing Structure of the International Community”, Harvard International Law
Journal 1991, 355.

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furthermore support in international documents and case law. First of all, the Vienna
Convention on the Law of Treaties establishes in Article 53 that the international community
is made out of States as a whole. Second, the Declaration on Principles of International Law
concerning Friendly Relations and Co-Operation among States in accordance with the Charter
of the United Nations equally refers to an international community comprised of States.492
Also, the Draft Declaration on Rights and Duties of States lays down that the States of the
world form a community governed by law.493 Third, the Permanent Court of International
Justice ruled in S.S. Lotus that nations belong to a community of States.494 Furthermore, the
International Court of Justice has on numerous occasions used the concept of international
community in the sense of international community of States. In its advisory opinion
concerning Reparations for Injuries Suffered in the Service of the United Nations it found that
the great majority of the members of the international community could establish the United
Nations and accord it with an objective personality.495 Since the United Nations was erected
by States, “members of the international community” could only refer to States. Similarly, in
the Barcelona Traction, Light and Power Company, Limited the Court held that States have
obligations towards the international community as a whole, or obligations erga omnes, in
which all States have a legal interest in the upholding of these obligations.496 This was
reaffirmed in the Court’s advisory opinion on the Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territories.497 However, in its advisory opinion on the
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), the Court seemed to
include other entities than States by declaring that all States should take into account that the
continued occupation of Namibia by South Africa prejudices the Namibian people, which
should rely on the international community to bring the mandate to a good end.498 From this it
is clear that States are part of the international community, but it could also include
international organizations and in particular the United Nations, which had a responsibility for
the territories under mandate and whose action led in the end to a final agreement on the
independence of Namibia.499 In the case of United States Diplomatic and Consular Staff in
Tehran, the Court once again referred to the international community in the meaning of

491
FASSBENDER considers the United Nations as the representative of the international community which as a
result has to consist of States, since it is the latter which have created the United Nations: B. FASSBENDER, “The
United Nations Charter as Constitution of the International Community”, Columbia Journal of Transnational
Law 1998, 567-568.
492
Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among
States in accordance with the Charter of the United Nations, Annex to UN General Assembly Resolution 2625
(XXV) (principle of sovereign equality). See also: UN General Assembly Resolution 61/218, § 2 and § 7, where
the international community is equated with States.
493
Preamble § 1 Draft Declaration on Rights and Duties of States, Annex to UN General Assembly Resolution
375 (IV).
494
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 16-17 (french version).
495
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Rep. 1949,
185.
496
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, §§ 33-34.
497
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories. Advisory
Opinion, ICJ Rep. 2004, §§ 155-159.
498
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 Rep. 1971, § 127.
499
M. LACHS, “Legal Framework of an International Community”, Emory International Law Review 1992, 336.

114
community of States: it drew the attention of the entire international community, of which
Iran is a member, to the irreparable harm violations of diplomatic immunities may lead.500
Furthermore, in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,
the concept of international community abounds and refers again solely to States.501
Concluding, according to the view that States are the primary members of the international
community, it will be their commonly shared values that will make them a community. Since
all States are a member of the United Nations, this will create common links because all
States have accepted the goals and principles of the United Nations.502

123. Other scholars have a wider view on the international community. DE WET considers
the various national, regional and functional constitutional regimes as the building blocks of
the international community, or in other words, States and international organizations are the
most important members of the international community; individuals can only be considered
part of the international community to the extent that international law recognizes them as a
legal subject. Furthermore, this “international polity” is underpinned by common values and
embedded in a number of legal enforcement mechanisms.503 For KWAKWA the notion
“international community” means “the whole array of actors whose actions influence the
development of international legal rules”.504 A similar definition can be found in the later
work of FRANCK, in which he defines a community as “a social system of continuing
interaction and transaction” and “an ongoing, structured relationship between a set of
actors”.505 At the international level these actors are not merely States, but include
individuals, corporations, churches, regional and global organizations, bureaucrats and
courts.506 SCELLE and BULL consider individuals as the true components of an international
community.507 According to TOMUSCHAT and DUPUY the international community is not
limited to States, but in the last instance encompasses mankind.508 A conception of

500
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ
Rep. 1980, § 92.
501
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 62, §67, § 73, § 82, §
96, § 100, § 103.
502
M. LACHS, “Legal Framework of an International Community”, Emory International Law Review 1992, 332;
FASSBENDER and DE WET are also of the opinion that the creation of the United Nations was the key moment in
the emergence of the international community: B. FASSBENDER, “The United Nations Charter as Constitution of
the International Community”, Columbia Journal of Transnational Law 1998, 573; E. DE WET, “The
International Constitutional Order”, International and Comparative Law Quarterly 2006, 54.
503
E. DE WET, “The International Constitutional Order”, International and Comparative Law Quarterly 2006,
53 and 55.
504
E. KWAKWA, “The International Community, International Law, and the United States : Three in One, Two
against One, or One and the Same?”, in M. BYERS and G. NOLLTE (eds.), United States Hegemony and the
Foundations of International Law, Cambridge, Cambridge University Press, 2003, 27.
505
T.M. FRANCK, Fairness in International Law and Institutions, Oxford, Clarendon Press, 1995, 10.
506
Ibid., 477.
507
G. SCELLE, Droit international public, Paris, Éditions Domat-Montchrestien, 1944, 19-20 ; H. BULL, The
Anarchical Society: A Study of Order in World Politics, London, Macmillan, 1977, 22.
508
R.-J. DUPUY, La Communauté internationale entre le mythe et l’histoire, Paris, Economica, 1986, 180;
TOMUSCHAT defines the international community as an “overarching system which embodies a common
interest of all States and, indirectly, of mankind”: C. TOMUSCHAT, “Obligations arising for States against or
without Their Will”, Recueil des Cours 1993-IV, 227. On another occasion he has stated that members of the
international community are States, international organizations and to a certain extent non-governmental
organizations: C. TOMUSCHAT, “Die internationale Gemeinschaft”, Archiv für Völkerrecht 1995, 6-7. Both
statements are however not in contradiction: mankind is in his view a factual description, while “international

115
international community with a wider membership than merely States can as well be found in
international documents. The Rome Statute of the International Criminal Court refers in
Article 5 to the international community as a whole without the epithet of States, although it
is not clear whether the notion is more inclusive. In any event, the Special Rapporteur of the
International Law Commission CRAWFORD rejected the proposal of States to change the
terminology of “international community as a whole” in the Draft Articles on State
Responsibility for Internationally Wrongful Acts in “international community of States as a
whole”, since he was of the opinion that the international community is not solely comprised
of States, but also included for instance the United Nations, the European Union, and the
International Committee of the Red Cross.509 Furthermore, General Assembly resolutions
have used “international community” in a broader sense than a community of States. For
instance, General Assembly Resolution 2997 (XXVII), inspired by Principle 23 of the
Stockholm Declaration speaks of governments and the international community,510 indicating
that the international community is larger than States. In the Declaration on the Occasion of
the Fiftieth Anniversary of the United Nations the General Assembly even used a broader
notion of international community, including non-governmental organizations, multilateral
financial institutions, regional organizations and all actors of civil society.511 The concept of
international community is less clear in the World Summit Outcome Document in which the
international community includes international financial institutions and the United
Nations.512 On the other hand, in the same resolution the international community is limited to
States: the international community, through the United Nations, has the responsibility to use
diplomatic, humanitarian and other peaceful means to protect populations against
international crimes.513 On other occasions in the resolution, it is not clear what is meant by
“the international community”.514

124. Having examined the notion of international community it still remains rather unclear
what the exact definition of the term is and who its members are. Part of doctrine, supported
by Article 53 Vienna Convention on the Law of Treaties and case law, considers the
international community as a community of States. Other legal scholars have a wider view on
the members of the international community and find support in international documents such
as General Assembly resolutions. However, in our view the discrepancy between these two
opinions can be bridged. The starting position is that the international community should not
be limited to States. The essential element of any community is the existence of common
values and goals. At the international level the values and goals advanced by States, or more

community” has a juridical connotation, meaning a set of actors or an organizational structure which articulates
the concerns of mankind: C. TOMUSCHAT, “Obligations arising for States against or without Their Will”,
Recueil des Cours 1993-IV, 225-226. This is confirmed by a later definition of the international community as
“an ensemble of rules, procedures and mechanisms designed to protect collective interests of humankind, based
on a perception of commonly shared values”: C. TOMUSCHAT, “International law: Ensuring the Survival of
Mankind on the Eve of a New Century”, 281 Recueil des Cours 1999, 88.
509
Special Rapporteur CRAWFORD, “Fourth Report on State Responsibility”, Yearbook of the International Law
Commission 2001, Vol. II, Part 1, 10.
510
UN General Assembly Resolution 2997 (XXVII), Preamble, § 1; similar language can be found in UN
General Assembly Resolution 61/229, § 23
511
UN General Assembly Resolution 50/6, § 17; see also UN General Assembly Resolution 59/279, § 4.
512
UN General Assembly Resolution 60/1, World Summit Outcome Document, § 40 and § 88.
513
Ibid., § 139.
514
Ibid., § 3, § 38, § 39, § 57, § 98, § 157, § 138.

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precisely the governments, have weight on the formulation of common values and goals. It
has to be noted that the values and goals proposed by governments can be the values and
goals of a certain elite, but also of the population of a State in case of a democracy, or a
mixture of both. However, other international actors are equally able to influence the adoption
of common values and goals. International organizations, although created by States,
frequently have legal personality and hence cannot be reduced to the totality of States. There
is no doubt that they can influence the articulation of common values and goals by statements
of their secretariat and unilateral acts. Furthermore, it is often through the mechanisms of
international organizations that community values are enforced and goals reached, thus
strengthening these values and goals. Non-governmental organizations also have an important
role to play in the formulation of common values and goals. The role of non-governmental
organizations in the environmental field, human rights law, the adoption of the Convention on
the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and
on Their Destruction and the Rome Statute of the International Criminal Court was
considerable and one could even say that non-governmental organizations were instrumental
in the coming into existence of the latter two conventions.515 Furthermore, they continue to
put pressure on governments to respect their commitments under human rights and
environmental law. Moreover, they have frequently observer status within international
organizations. However, the international community should not be limited to these entities.
Individuals and multinational corporations might as well impact on the shared values of the
international community. In the end the international community encompasses the values and
goals of mankind, whether formulated individually or through different forms of organization
like States, non-governmental organizations, international organizations, etc. The values and
goals of mankind reflect the common interests and aspirations of the whole of humanity. As a
result, the international community can be regarded as the total of all values and goals based
on the common interest and aims of mankind. Yet, in order to put these values into effect or
achieve the goals, mankind needs an organizational structure to transform the factual
international community into an international polity. Since from a historical perspective
mankind lives in different communities in a certain territory, the State has become the prime,
but certainly not the only, organizational mechanism to transform the values and goals of the
national communities to the international level and confront them with the values and goals of
other national communities in order to achieve overarching values and goals and to constitute
an international community. In essence, the various national interests are confronted with
each other and from these different interests one tries to mould a common interest reflecting
the values and goals of the different communities. It might be possible that in a certain period
of time the various national values and goals cannot be reconciled so that there is no
international community, but merely an international society. However, the denser the
interaction between these national communities, the more chance commonly held values and
goals can surface. In the first instance these common interests may be few, but gradually
deeper interdependence between States can increase these common values and goals. In the
end, in order to better ensure commonly held values and goals States can decide to create
special entities, international organizations, with the specific task of protecting certain values
common to the members or achieve common aims. Furthermore, the denser the contacts
between States, the more likely that individual citizens will organize transborderly and form

515
A. PETERS, “Global Constitutionalism Revisited”, International Legal Theory 2005, 53-54.

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national or international non-governmental organizations to further certain values and goals or
monitor the respect for the existing common values. In the economic sphere companies may
bond in transnational organizations to advance the interests of their members, but also to
influence common interests, for instance the advancement of free trade. Of course, all these
organizational structures do not impair the ability of single individuals or companies to
influence common values and goals.

125. Mankind is thus organized in various structures in order to achieve community values
and goals. One of its tools to advance values and goals of the community is by law, which not
only implements the values and goals of the community but may also create an organizational
structure which is responsible for the adoption of legal rules reflecting the values of the
community and laying down mechanism to ensure respect for the adopted rules. Yet, each
legal system requires an authority which will be responsible for the transformation of
common values in legal rules and to implement them. This authority may be simple and
decentralized in primitive communities: authority could be centralized in one person or an
elite or each member of the community may have law-making and law-applying powers, but
in more complex societies, the legal order will designate special authorities which are
responsible for the creation and application of law and provide for procedures on how law is
created and implemented, thus creating a distance between persons who are entitled to create
law and to apply the law, and the governed. If mechanism to check and balance these
authorities are limited or flawed, this might lead to usurpation of the authority by the holders
which only advance their interests thus creating a gap between the values of the community
and the values enshrined in the legal system.

126. At the international level the authority to create law and apply international law is
primarily entrusted to States and to international organizations having a separate legal
personality, which are frequently created by States to implement a common interest or
achieve a common goal. It is thus up to this community of States and international
organizations to transform the values of the international community into international law
and to ensure respect for them. It is in this sense that the international community is primarily
limited to States: the international community conceived as the authority to create and to
implement international law, reflecting the common values of mankind, can indeed be said to
be State-centred. It is therefore no surprise that Article 53 Vienna Convention on the Law of
Treaties focuses on the “international community of States as a whole”, since in the
international legal order States still play a cardinal legislative role. Article 53 thus establishes
that it is the totality of the prime legislators in international law, States, that will determine
which legal rules, and which values enshrined therein, will have the characteristic of the
impermissibility of derogation, or of a peremptory norm. Consequently, only the totality of
States has the authority under international law to establish norms of jus cogens and only the
common values held by these authorities can become a rule of jus cogens.516 Article 53 thus

516
For a rule of jus cogens to emerge it is not required that all States should support the rule, but only that the
overwhelming majority of States support the rule: a very limited number of States does not prevent a rule of jus
cogens to emerge: YASSEEN, 80th Meeting of the Committee of the Whole, United Nations Conference on the
Law of Treaties, Official Records, Vol. I, 1969, § 12. The epithet “as a whole” indicates that in order for a rule
of jus cogens to come into existence all States with various backgrounds should support the proposed rule of jus
cogens. The reason for its insertion was the division of the international community in three blocs at the

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excludes international organizations as authorities to formulate jus cogens rules, although they
are authorities under international law. This is evidenced by the literal repetition of Article 53
in the Vienna Convention on the Law of Treaties between States and International
Organizations or between Organizations, while one could expect that in the framework of that
convention international organizations would be entrusted with authority to formulate
peremptory norms.517 Needless to say, given the absence of checks whether the authorities
under international law effectively transform the community values into international law,
discrepancies might arise between the values of the international community and the values of
the international legal community, or the values which by established procedures and
mechanisms the authorities have laid down in international law. Instead of the values of the
international community, international law might reflect only the values of the community of
States, whether formulated by a governmental elite or public opinion, although typical State
values like sovereign equality, non-use of force and non-intervention to a certain extent also
reflect the values of the international community. Mankind who lives in States benefits from
sovereign equality because it ensures that each national community is equal at the
international level and cannot be excluded on the basis of race, religion or other criteria not
recognized by international law. Furthermore, the non-use of force spares humanity from the
scourge of war and the non-intervention in essentially internal affairs of a State protect that
community against the unlawful interference by other States in legal policy choices.
Nevertheless, by placing authority to create and apply international law in the hands of States
without adequate checks for the international community the risk of cleavages between this
community and the international legal community remains, affecting the legitimacy of the
latter community. Non-governmental organizations, public opinion, and scholars, although no
authorities of the international legal order, might however wield enough pressure on States to
advance the values of the international community instead of merely inter-State values. Yet,
in the end the problem will continue to be present, because there is no real alternative to the
State as the best suited actor at the international level yet and because humanity is still
primarily organized in States.

§2. The impermissibility of derogation

127. The final element of the definition of jus cogens in Article 53 is the prohibition or
impermissibility of derogation from the rule of general international law. In a first part the
concept of derogation will be elucidated. In a second part I will investigate whether norms of
which one cannot logically derogate from could fall within the scope of Article 53.

moment the Convention was adopted, so that two blocs could not create a norm of jus cogens which was not
accepted by the third bloc.
517
The International Law Commission did consider the issue whether to include international organizations as
authorities which could establish norms of jus cogens, but refrained since in its view it would add nothing to the
wording of Article 53 because international organizations are made up of States and because the establishing of
the most cardinal rules in the international legal system is the primary authority of States: “Draft Articles on the
Law of Treaties between States and International Organizations or between International Organizations with
Commentaries”, Yearbook of the International Law Commission 1982, Vol. II, Part 2, 56.

119
A. The concept of derogation

128. Norms of jus cogens are peremptory norms, which refers to the impermissibility to
derogate from them.518 Norms of jus cogens are not more obligatory than other norms of
international law. Both norms of jus cogens as well as norms of jus dispositivum are equally
binding upon subjects of the international community. Yet, although the two categories do not
distinguish themselves on the basis of their obligatory character, norms of jus cogens put a
limit to the law making capacity of subjects of international law. They cannot create particular
norms which undermine the norms of jus cogens. Derogation in this regard thus entails the
deviation by a limited group of subjects of international law of a general rule of international
law by means of particular agreements or particular customary international law.519 The law-
making power of a limited group of States is hence restricted and the general rule will
continue to apply in the relation between the derogating subjects of international law, despite
the principle of lex specialis derogat legi generali. Furthermore, derogation occurs outside the
scope of the peremptory norm by a subsequent agreement or other conduct undermining the
jus cogens norm. Consequently, exceptions to a peremptory norm should not be considered as
derogation, but as an integral part of the peremptory norm.520 For instance, in Military and
Paramilitary Activities in and against Nicaragua, the International Court of Justice seemed
on the one hand to agree with the jus cogens qualification of the prohibition of the use of
force by the parties to the dispute, but on the other hand considered the right to self-defence as
an exception to the rule.521 As a result the more exact scope of the peremptory norm is the
prohibition on the use of force, except in cases of self-defence; it is from this rule that no
derogation is permitted. Similarly, if the right to life is part of jus cogens, then it contains at
the international level an exception for the death penalty for the most serious crimes.522

129. The impermissibility of derogation however does not mean that norms of jus cogens are
immutable. Rather, they can only be modified by the legislative action of all the subjects

518
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 40; J.A. BARBERIS, “La liberté de traiter des Etats et le jus cogens”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1970, 23; M. KREĆA, “Some General
Reflections on Main Features of Ius Cogens as Notion of International Public Law”, in G. GUTTIÉRREZ
GIRARDOT et al. (eds.), New Directions in International Law, Essays in Honour of Wolfgang Abendroth,
Frankfurt, Campus Verlag, 1982, 31-32.
519
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 73;
R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003, 16; R. KOLB, Théorie
du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de France, 2001, 96; R.
KOLB, “Jus cogens, intangibilité, intransgressibilité, derogation ‘positive’ et ‘négative’”, Revue Générale de
Droit International Public 2005, 322.
520
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 72.
521
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 190 and § 193. The prohibition on the use of force has been recognized as
part of jus cogens in various opinions of the judges: Separate Opinion Judge NAGENDRA SINGH, Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
ICJ Rep. 1986, 153; Separate Opinion Judge SETTE-CAMARA, l.c., 199; Separate Opinion Judge SIMMA, Oil
Platforms (Iran v. United States of America), Merits, Judgment, ICJ Rep. 2003, § 9; Separate Opinion Judge
KOOIMANS, l.c., § 46; Dissenting Opinion Judge ELARABY, l.c., § 1.1.; Separate Opinion Judge ELARABY, Legal
Consequences of the Construction of A Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep.
2004, § 3.1.
522
Article 6 International Covenant on Civil and Political Rights (1966).

120
bound by the rule of jus cogens, i.e. the international community of States as a whole. As a
result, derogation has to be distinguished from modification or abrogation meaning
respectively that a rule is changed or extinguished by all legal subjects.523

130. Derogation in the context of peremptory norms does not necessarily mean that any
derogatory agreement or customary rule is not permitted Rather, only negative derogation is
not permissible or derogation which undermines or limits the jus cogens norm; positive
derogation is often possible and permitted. Positive derogation does not undermine or limit
the scope of peremptory norms; rather it extends the scope of peremptory norms beyond what
is strictly required by the norm of jus cogens. Furthermore, positive derogation may in itself
constitute a new regional peremptory norm – if this concept is retained – or could just be a
rule of jus dispositivum.524 For instance, the prohibition of genocide has been recognized to
constitute a norm of jus cogens,525 but genocide can only be committed against racial, ethnic,
national or religious groups. Nothing would however preclude that States conclude a treaty in
which they establish that between themselves they extend the crime of genocide to other
groups, such as political groups, or persons with disabilities. Also, the right to life, if found to
be jus cogens, allows for the death penalty on the international level for adults, yet regional
human rights instruments may prohibit the death penalty.526

131. In some instances neither negative nor positive derogation seems to be allowed.
According to KOLB these norms are said to be “intangible”.527 He gives the example of Article
34 (1) Statute of the International Court of Justice which establishes that only States may
appear before the International Court of Justice. Consequently, agreements allowing for the
submission of disputes between a State on the hand and individuals on the other hand, will not
have any effect before the Court. Whether the Statute of the International Court of Justice
should be regarded as part of jus cogens, will be discussed later, but the point made is a valid
one. It might occur that a norm cannot negatively or positively be derogated from because the
international community of States as a whole considers this norm as the sole norm which
should be applied and may not be derogated from. It may be hard to conceive such a
peremptory norm in the traditional conception of jus cogens norms, but the prohibition of the

523
The term “modification” means in treaty law equally the changing of treaty norms or their execution by a
limited group of parties to the treaties between themselves: Article 41 Vienna Convention on the Law of Treaties
(1969), but this is a form of derogation, which is confirmed by the wording of the said article: 41 (b)(ii): “does
not relate to a provision, derogation from which is incompatible with the effective execution of the object and
purpose of the treaty as a whole.” On the modification of a peremptory norm, see infra Chapter 3, Section 3, § 2.
524
R. KOLB, “Jus cogens, intangibilité, intransgressibilité, derogation ‘positive’ et ‘négative’”, Revue Générale
de Droit International Public 2005, 324.
525
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 64; Prosecutor v. Kupreškić et al., Case
No. IT-95-16, Trial Chamber, Judgment, 14 January 2000, § 520; J. WOUTERS and S. VERHOEVEN, “The
Prohibition of Genocide as a Norm of Ius Cogens and Its Implications for the Enforcement of the Law of
Genocide”, International Criminal Law Review 2005, 410 et seq.
526
Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning
the Abolition of the Death Penalty (1983), European Treaty Series No. 114 (the death penalty is only
completely abolished in peacetime: Article 2 Protocol No. 6); Protocol No. 13 to the Convention for the
Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty in All
Circumstances (2002), European Treaty Series No. 183
527
R. KOLB, “Jus cogens, intangibilité, intransgressibilité, derogation ‘positive’ et ‘négative’”, Revue Générale
de Droit International Public 2005, 326.

121
use of force in interstate relations is probably such an intangible jus cogens norm. As
demonstrated above, the prohibition on the use of force has already one exception, namely the
right of self-defence, an inherent right owed by every State. Furthermore, the Security
Council may under Chapter VII of the Charter authorize the use of force against a Member
State in order to remove a threat to the international peace and security. So the complete
peremptory norm on the use of force is the following: the use of force is prohibited, unless in
case of self-defence or authorization of the Security Council.528 From this rule no derogation,
whether negative or positive would be permitted. A negative derogation would be to adopt
new exceptions to the general prohibitions by particular agreement or custom and would be
void. Moreover, positive derogation, i.e. derogation which extends the scope of the
prohibition would equally not be permitted since each State has an inherent right to self-
defence and the Security Council is the primary actor responsible for the maintenance of
international peace and security. A treaty between Member States limiting the powers of the
Security Council might then not only be applicable pursuant to Article 103 Charter of the
United Nations, but equally invalid.

B. The problem of logical impossibility of derogation

132. Some norms of international law cannot be derogated from because such derogation
would be logically impossible. The question thus arises whether these norms equally belong
to the category of jus cogens. Typical norms of jus cogens can be derogated from, however,
the derogation is not allowed. For instance, States can conclude a treaty purporting to
organize genocide against an ethnic group living within their respective territories, but such
treaty will be void because of normative reasons. With respect to norms which cannot
logically derogated from this element of normativity is missing: it is not possible to derogate
from them, not because this would be prohibited, but because it would be logically
inconsistent. Yet, some authors who focus on the aspect on non-derogability in the definition
of jus cogens have no problem considering such norms as part of jus cogens since the reason
for non-derogation is in their view not relevant.529

133. Which norms would belong to this category of logical jus cogens? First of all, the
principle of pacta sunt servanda. Indeed, it would be illogical to include in a particular treaty
the rule that treaties should not be respected since the application of that treaty would involve

528
Consent to the use of force by another State is not really an exception since that use of force will not be
directed at the State giving its consent, but at a third party (rebel group, etc.). Such a situation is thus rather a
permission by the consenting State for extraterritorial armed enforcement jurisdiction and not the use of force in
interstate relations. For consent and the presence of foreign troops in a State see: Armed Activities on the
Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits, Judgment, ICJ Rep. 2005, § 42 et
seq; the concept of “responsibility to protect” can equally not be considered as an exception on the use of force
since it requires that the Security Council takes action: General Assembly Resolution 60/1, Outcome Document
World Summit 2005, §§ 138-139. The responsibility to protect was confirmed in Security Council Resolution
1674 (2006) (which was reaffirmed in Resolution 1894 (2009)) and applied in respect to Darfur (Security
Council Resolution 1706 (2006)) and Libya (Security Council Resolution 1973 (2011)). See also: “Report of the
Secretary General, Implementing the Responsibility to Protect”, UN Doc. A/63/677.
529
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 118-119; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International
2003, 20-21.

122
the application of the principle pacta sunt servanda.530 Furthermore, the question could be
asked whether these future instruments would be treaties or “pacta”: if they are not legally
binding on the parties, could they be labelled treaties? Secondly, principles of law that are
inherent in every legal system cannot logically be derogated from, otherwise they would not
be necessary for all legal systems.531 As demonstrated before, the principle of good faith is a
principle which necessarily underlies each legal system and is hence logically non-derogable.
Of course, the principle of good faith might have different manifestations which could be
derogated from, but the principle itself not:532 a system of law cannot be based on bad faith.
For instance, a treaty establishing that it should be performed in bad faith, would be logically
impossible. Performance in good faith is closely linked to the principle of pacta sunt servanda
and entails that it is the intention of the parties and not the literal application of the treaty
which prevails.533 However, applying the conventional clause that the treaty should be
performed in bad faith implies that one performs the treaty in good faith since it is performed
in accordance with the intention of the parties. It has to be pointed out that a treaty clause
establishing that the treaty should be literally interpreted, i.e. not in good faith, is however
possible and has been the standard practice in the past.534 Parties may limit the interpretation
methods of the judges or establish that the scope of their obligations is determined by a literal
interpretation of the concluded treaty. In any event, this does not infringe on the good faith
performance of the treaty: it has namely been the intention of the parties that the scope of
their legal obligations which have to be performed, are to be determined by a literal
interpretation of the treaty. By literally interpreting the treaty, they are performing it in good
faith. BARBERIS also lists the principle of lex posterior derogat legi priori as a norm of which
no derogation is possible. A treaty which would derogate from this principle would apply the
principle it is derogating from.535 Yet, his reasoning is mistaken since the principle only
applies if there is no treaty provision establishing the priority of successive treaties on the
same subject.536 In other words, the principle of lex posterior derogat legi priori is a general

530
J.A. BARBERIS, “La liberté de traiter des Etats et le jus cogens”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1970, 26-27; M. VIRALLY, “Réflexions sur le jus cogens”, Annuaire Français de Droit
International 1966, 10; L. GROSSE, “Racines historiques et fondements contemporains des normes impératives
(Jus cogens) dans la théorie et la pratique du droit international”, Revue de Droit International, de Sciences
Diplomatiques et Politiques 1995, 233; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humlot,
1992, 107-108; R. KOLB, “Conflict entre normes de jus cogens”, in X, Droit du pouvoir, pouvoir du droit:
Mélanges offerts à Jean Salmon, Brussels, Bruylant, 2007, 487; A. ORAKHELASHVILI, Peremptory Norms in
International Law, Oxford, Oxford University Press, 2006, 45.
531
Supra, No. 93.
532
M. VIRALLY, “Réflexions sur le jus cogens”, Annuaire Français de Droit International 1966, 10; L. GROSSE,
“Racines historiques et fondements contemporains des normes impératives (Jus cogens) dans la théorie et la
pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et Politiques 1995,
233; A.-J. LEONETTI, “Interprétation des traités et règles imperatives du droit international general (jus
cogens)”, österreichisches Zeitschrift fur öffentliches Recht 1973, 96-97; R. KOLB, “Conflict entre normes de
jus cogens”, in X, Droit du pouvoir, pouvoir du droi : Mélanges offerts à Jean Salmon, Brussels, Bruylant,
2007, 487.
533
Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Rep. 1997, § 142.
534
G. SCHWARZENBERGER, The Inductive Approach to International Law, London, Stevens & Sons, 1965, 111.
535
J.A. BARBERIS, “La liberté de traiter des Etats et le jus cogens”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1970, 27.
536
Article 30 (2) Vienna Convention on the Law of Treaties (1969). Article 30 (1) refers to Article 103 Charter
of the United Nations (1945) which is not set aside by the later rules of the Vienna Convention on the Law of
Treaties.

123
rule, which can be derogated from by a special rule contained in a treaty: lex specialis derogat
legi generali.

SECTION.4. THE SANCTION OF NULLITY

134. According to KOLB jus cogens cannot be limited to ordre public or to the most
fundamental values of the international community. Rather, jus cogens is broader and is
encompassing all norms protecting a certain public interest laid down in a legal regime from
derogation. Therefore he defines jus cogens as a legal technique which aims at protecting the
unity and integrity of a legal regime by not permitting the fragmentation of this regime in
various more specific legal regimes, which would otherwise be applicable in furtherance of
the principle of lex specialis derogat legi generale, in every instance where there exist a
public interest to this effect.537 From this it becomes clear that jus cogens norms are nothing
special: they are merely a legal technique to protect the integrity of a certain regime.
Furthermore the conception of jus cogens as limited to ordre public is too restricted.
According to KOLB, it includes every norm from which no derogation is possible whether for
logical, moral or other reasons. The main important issue is that it protects the integrity of a
regime or an utilitas publica. This might for instance include the constitutive documents of
international organisations. Indeed, Member States of an international organization normally
cannot conclude treaties or develop new rules going against the constitutive document of the
international organization of which they are member.538 A particular group of States may not
set aside in a later specific treaty that certain aspects of the international organization do not
apply as between themselves.539 For example, two or more States cannot establish a treaty in
which they grant individuals the right to appear before the International Court of Justice since
this judicial body is only open to States pursuant to Article 34 of its Statute. Consequently, the
Court will deny standing to these individuals. States wishing to subscribe to an international
organization will have to accept the regime of the international organization or not become
member to it. They normally cannot become member under the condition that parts of the
regime do not apply to them.

537
R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003, 9: “le ius cogens
est une technique juridique qui vise à maintenir l’unité et l’integrité d’un regime juridique en ne permettant pas
sa fragmentation en régimes juridiques plus particuliers qui seraient autrement applicables prioritairement en
vertu de la lex specialis, dans tous les cas où il existe un intérêt public à cet effet”.
538
Of course, all members of the international organization or a majority required by the constitutive document
may conclude a later treaty amending the constitutive document, but this constitutes an abrogation or
modification and not a derogation of the document. Similarly, customary rules may emerge within the
international organisation going against the provisions of the constitutive document, but this custom has to be
accepted by all or the significant majority of the members. An example of the latter is the customary rule that an
abstention by one of the Permanent Members does not preclude the adoption of a Security Council Resolution,
despite the requirement of Article 27 (2) Charter of the United Nations of affirmative votes of the Permanent
Members: 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 Rep. 1970, § 22.
539
R. KOLB, “Théorie du ius cogens international, Revue Belge de Droit International 2003, 32-33. KOLB then
continues by demonstrating that the Statute of the International Court of Justice is an example of jus cogens
protecting an utilitas publica: Ibid., 35-54.

124
135. KOLB’s theory has the immediate result of enlarging the concept of jus cogens beyond
its traditional boundaries. He specifically argues against a notion of jus cogens which is
equated with ordre public. Nevertheless, norms of ordre public are part of the wider category
of jus cogens as a legal technique protecting a regime from fragmentation. He therefore limits
Article 53 Vienna Convention on the Law of Treaties to jus cogens norms of ordre public.540
What makes this subdivision of jus cogens norms specific is the sanction of nullity, which is
an integral part of the definition, but not of other categories of jus cogens norms, which may
have other sanctions than nullity.541 Subsequently, it has to be examined whether the theory of
KOLB can stand scrutiny and whether the sanction of nullity is an integral part of the rule of
recognition.

136. According to KOLB jus cogens is determined by the non-derogation from a specific
regime. Derogation entails the deviation by a limited group of subjects of international law of
a general rule of international law by means of particular agreements or particular customary
international law. Furthermore, at the international level derogation equally entails a limit to
the law-making power of international law subjects. KOLB endorses both aspects of
derogation.542 KOLB establishes three main causes for non-derogation in international law: a
logical impossibility, norms of ordre public and norms protecting a general interest or utilitas
publica.543 With regard to the first category, I have established that this cannot belong to jus
cogens as understood in Article 53 Vienna Convention on the Law of Treaties since this
provision establishes that derogation is not permitted or prohibited, which implies that it is
possible to derogate from a norm of jus cogens. However, in case of non-derogation because
of logical reasons, derogation is in fact impossible as the examples of pacta sunt servanda and
good faith have demonstrated. Therefore, this category cannot belong to jus cogens. The third
category is more challenging to the traditional conception of jus cogens. It concerns mostly
multilateral legal regimes protecting a general interest of all its subjects against a later
derogation by a smaller group of the subjects to the legal regime. These regimes include
treaties establishing international organisations since once the organisation is established its
rules are the sole rules applicable between the organisation and its Member States or between
the Member States concerning issues related to the international organisation.544 However,
whether also substantive regimes might fall under jus cogens as a consequence of utilitas
publica is not made clear by KOLB. On the other hand disarmament agreements, agreements
establishing demilitarized zones, the use of a common river etc. could be considered as
protecting an utilitas publica as long as they have an imperative character or are non-

540
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 176; R. KOLB, “Théorie du ius cogens international, Revue Belge de Droit International 2003, 23.
541
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 177; R. KOLB, “Théorie du ius cogens international, Revue Belge de Droit International 2003, 30-
31.
542
Supra, No. 128.
543
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 181-182; R. KOLB, “Théorie du ius cogens international, Revue Belge de Droit International
2003, 32.
544
There is some support for considering constitutional instruments of international organizations as jus cogens:
in the Najera case the arbitration panel considered Article 18 League of Nations Covenant, requiring the
registration of conventions, as jus cogens since it could not be derogated from by particular agreements: Pablo
Nájera (France) v. United Mexican States, Award of 19 October 1928, Reports of International Arbitral
Awards, Vol. V, 470.

125
derogatory. The sanction might be the nullity of the derogatory instrument, but other
sanctions could also be envisaged, such as non-opposability,545 since non-opposability or
precedence of the general legal regime does protect against fragmentation.

137. The theory of KOLB has some problems. First of all, the integrity of a regime can be
protected by other means than jus cogens. The object and purpose of a treaty might have the
same effect, if the treaty does not only contain bilaterizable provisions, but has as its object
and purpose the establishing and protection of a community interest which cannot be reduced
to bilateral relationships between the parties.546 This is the case with regard to treaties creating
an international organization. Treaties establishing international organizations do generally
contain normative provisions or provisions which do not confer reciprocal rights and
obligations between the parties or inter se, but these provisions operate for each and every
other party without creating as such rights and obligations between the parties individually;
they are per se provisions and are linked with the assumption of duties and obligations.547
KOLB accepts this qualification since he is of the opinion that the rules dealing with the
functioning of international organizations have an objective scope and cannot be different for
each or some Member States, because the constitutional treaty has transferred competences to
another entity for the reaching of a common goal.548 However, if this is the case, then the
impossibility of derogation can perfectly be explained on the basis of the object and purpose
of such treaties. For instance, Article 19 Vienna Convention on the Law of Treaties
determines that reservations to a multilateral treaty may not be formulated if the reservation
goes against the object and purpose of the multilateral convention.549 It has been held that
reservations going against organizational provisions in a multilateral treaty establishing an
international organization – to which the theory of KOLB applies – would not be allowed
because they would undermine the object and purpose of the treaty.550 Similar considerations
might be applied to inter se agreements.551 According to Article 41 Vienna Convention on the
Law of Treaties modification of a multilateral treaty by an inter se agreement between some
of the parties is prohibited if the modification affects a provision derogation from which is

545
R. KOLB, “Théorie du ius cogens international, Revue Belge de Droit International 2003, 23 and 31; R.
KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 188-189.
546
INTERNATIONAL LAW COMMISSION, “Fragmentation of International Law: Difficulties arising from the
Diversification and Expansion of International Law, Report of the Study Group of the International Law
Commission”, UN Doc. A/CN.4/L.682, 151 et seq; A. ORAKHALASHVILI, Peremptory Norms in International
Law, Oxford, Oxford University Press, 2005, 99.
547
M.H. MENDELSOHN, “Reservations to the Constitutions of International Organizations”, British Yearbook of
International Law 1971, 145-146; G.G. FITZMAURICE, “Reservations to Multilateral Conventions”,
International and Comparative Law Quarterly 1953, 14-15.
548
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 185; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003,
33.
549
Article 19 (c) Vienna Convention on the Law of Treaties (1969).
550
M.H. MENDELSON, “Reservations to the Constitutions of International Organizations”, British Yearbook of
International Law 1971, 148; H.G. SCHERMERS, “The Suitability of Reservations to Multilateral Treaties”,
Netherlands International Law Review 1959, 353-355.
551
INTERNATIONAL LAW COMMISSION, “Fragmentation of International Law: Difficulties arising from the
Diversification and Expansion of International Law, Report of the Study Group of the International Law
Commission”, UN Doc. A/CN.4/L.682, 159.

126
incompatible with the effective execution of the object and purpose of the treaty as a whole.552
In case of multilateral treaties creating an international organization, an inter se agreement
between some of the parties to the multilateral treaty to modify certain organizational
provisions would be incompatible with the effective execution of the object and purpose of
the multilateral treaty which after all aims to establish an organization with various functions
and objectives and a procedural machinery to perform these functions and reach these
objectives. If Member States would thereafter conclude particular agreements modifying the
multilateral treaty, the institutional machinery may come to an end. Consequently, the effect
of constitutional treaties of allowing no derogation by particular agreements can be explained
without having recourse to an extended version of jus cogens, but on the basis of the object
and purpose of the treaty establishing the international organization.553 Furthermore, treaties
establishing international organizations often confer legal personality on the entity whose
organs have to respect the constitutional document. Thus, they cannot apply a particular treaty
which would derogate from the provisions of the constitutional treaty, because they would act
ultra vires. Moreover, the international organization as a legal person is not a party to the
particular agreement and can therefore not derive rights and duties from that treaty and will
apply the provisions of the constitutional treaty. Similarly, the other Member States will
continue to invoke the provisions of the multilateral treaty creating the international
organization because they will not be bound by the particular agreement. However, since the
constitutional treaty of an international organization will contain normative or per se
provisions and not reciprocal provisions, the parties to the inter se agreement will mostly fail
to apply the inter se agreements as between themselves, because the rights and duties will not
be bilaterizable. As a consequence, even the inter se agreement might have no effect as
between the parties. For instance, an agreement establishing a different procedure for
admission to membership will have no effect between the parties to the inter se agreement.
Making abstraction of Article 103 Charter of the United Nations, if two or more members of
the United Nations would conclude a treaty determining that for admission to membership of
the United Nations, additional conditions than those in Article 4 (1) have to be fulfilled, and if
not they do not consider the applying State as Member,554 they cannot apply the treaty as
between themselves since if the General Assembly upon recommendation of the Security
Council does accept the applying State, it will become a member of the United Nations, and
the States party to the inter se agreement will have to accept the membership of the applying
State.

138. Of course, one could argue that jus cogens needs to encompass all or some legal
techniques preventing the fragmentation of a regime in specific rules. In this respect, KOLB is
of the opinion that one must not limit the conception of jus cogens to preconceived ideas and

552
D. COLARD, “Premières réflexions sur le ‘Traité des Traités’: La Convention de Vienne du 23 mai 1969”,
Journal de Droit International 1970, 279.
553
In this respect GROSSE and VIRALLY note that not all imperative norms, i.e. norms which do not permit
derogation, are jus cogens: L. GROSSE, “Racines historiques et fondements contemporains des normes
impératives (Jus cogens) dans la théorie et la pratique du droit international”, Revue de Droit International, de
Sciences Diplomatiques et Politiques 1995, 236; M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire
Français de Droit International 1966, 16-17.
554
Admission of a State to the United Nations (Charter, Article 4), Advisory Opinion, ICJ Rep. 1948, 64-65.

127
being blind to other definitions of the concept.555 This is indeed correct and the great benefit
of the theory of KOLB is that he has demonstrated that one could argue for a conception of jus
cogens other than ordre public, going beyond the mere fundamental rules of morality of the
international community. Yet, in our opinion, the concept of jus cogens is very specific and
cannot that easily be extended to include other means of preventing fragmentation of a legal
regime. What does make norms of jus cogens special, is the sanction attached to norms
derogating from them.556 The sanction is the voidness or nullity of the derogatory norm. In
this respect, jus cogens norms prevent the fragmentation of a particular rule or regime in a
specific way by invalidating the derogatory norm: norms of jus cogens equally address the
validity of the derogatory norms. It is this specific feature which in our view is overlooked by
KOLB.

139. KOLB on the one hand recognizes that jus cogens norms protect against fragmentation
and limit the law-making of international law subjects,557 but later only stresses the first part,
and omits the latter. When discussing jus cogens on the basis of an utilitas publica, he does
not question whether the derogatory acts are valid. He does recognize that there are other
sanctions attached to this category of jus cogens, such as the prevalence of the general rule or
the non-opposability of the derogatory norm,558 but in fact this does not impact the law-
making capabilities of the international subjects, one of the aspects of derogation he
recognizes. For instance, the Geneva Conventions prohibit the making of inter se agreements
which establish a protection inferior to the conventions.559 But what is the result if a limited
number of parties would make such an agreement? In the first place the protected persons
continue to enjoy the benefit of the Geneva Conventions, and there will be State responsibility
and possible a material breach of the Convention. However, if those States would renounce
the Geneva Conventions, the agreement would still be valid and can be applied. Of course,
one argument against this position could be that there is no case of derogation since there is
no fragmentation of the general regime by the agreement since the States concerned are only
party to the special agreement. However, this objection fails if the rule of the Geneva
Conventions from which these States derogate is part of customary international law since
then there is a general regime applicable to the States concluding the agreement. As a result,

555
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 187.
556
GROSSE argues that not all peremptory norms are norms of jus cogens since multilateral treaties may create
obligations from which one cannot derogate because derogation would go against the object and purpose of the
treaty; what does distinguish this type of peremptory norms of jus cogens is the sanction of nullity: L. GROSSE,
“Racines historiques et fondements contemporains des normes impératives (Jus cogens) dans la théorie et la
pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et Politiques 1995,
236. See also: M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire Français de Droit International 1966,
16-17.
557
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 96; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003, 18.
558
R. KOLB, “Théorie du ius cogens international, Revue Belge de Droit International 2003, 23 and 31; R.
KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 188-189.
559
Article 6 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (1949); Article 6 Geneva Convention (II) for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 6 Geneva Convention (III) Relative to
the Treatment of Prisoners of War (1949); Article 7 Geneva Convention (IV) Relative to the Protection of
Civilian Persons in Time of War (1949).

128
the law-making capacities of States are not limited, but remain fully applicable. In such a
case, only the invalidity of the agreement will limit the law-making capacity of international
subjects and therefore, one needs a particular concept in international law, namely jus cogens.
Equally, if the sanction would be the non-opposability of the particular rule or the prevalence
of the general rule, the validity of the particular rule will not come into play: the particular
rule remains valid, but cannot be applied temporarily. Yet, it might give rise to legal
consequences, which would not be the case if the particular rule would be null or void.
KOLB'S theory by focusing on the effect of non-derogation thus brings various legal
techniques under the same heading of jus cogens while there might constitute serious
differences between these techniques and their consequences. In this respect, Article 41
Vienna Convention on the Law of Treaties also prohibits the derogation by an inter se
agreement if this agreement hinders the effective execution of the object and purpose of the
multilateral convention, but does not attach the sanction of nullity to such an agreement.
Article 53 of the same convention does not only establish the sanction of nullity it also lays
down that these norms have to be accepted and recognized by the international community of
States as a whole. It is the second element which is of the most significance to distinguish jus
cogens from other techniques of non-derogation, since it is (nearly) the whole State
community which determines that certain norms are of such importance that every derogating
norm is considered to be non-existent because it is void. It is this dimension which KOLB
overlooks. As a result, qualifying all techniques of non-derogation as jus cogens, might not be
doing justice to the very specific nature of jus cogens as laid down in Article 53.

140. Since the sanction of nullity seems to constitute an important aspect of jus cogens, the
issue arises if the sanction of nullity is an integral aspect of the rule of recognition laid down
in Article 53 Vienna Convention on the Law of Treaties. On the one hand, it seems that the
sanction distinguishes jus cogens from other non-derogation techniques. Therefore it can be
said that the concept of jus cogens by definition contains the sanction of nullity.560 On the
other hand, the redaction of Article 53 goes against this: the rule of recognition is laid down in
the second sentence, whereas the first sentence establishes the sanction. Consequently, the
sanction of nullity is rather a consequence of the derogation of a rule of jus cogens,561 which
has to be recognized in advance in order to apply the sanction. Indeed, it might be possible
that in reality there is no derogation because all States of the international community regard
the norm as so important that they do not even consider derogating from it. In fact, no treaty
or other norm has until today be declared null because of derogating from a norm of jus
cogens. Norms of jus cogens are like a Rolls-Royce which never leaves the garage.562 It could
even be stated without exaggeration that the success of the concept precisely lies in the
prevention of such norms being adopted. But, if his is the case and the sanction of nullity is an
integral part of the rule of recognition, then the conclusion would be that no norm of jus

560
G. HARASZTI, Some Fundamental Problems of the Law of Treaties, Budapest, Akademiai Kiado, 1973, 304-
305; L. GROSSE, “Racines historiques et fondements contemporains des normes impératives (Jus cogens) dans
la théorie et la pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et
Politiques 1995, 236-237.
561
E.P. NICOULOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Papazissi, 1974, 143.
562
P. WEIL, “Le droit international en quête de son identité: Cours général de droit international public”,
Recueil des Cours 1992-VI, 274, embroidering on a previous comparison of BROWNLIE, quoted in A. CASSESE
and J.H.H. WEILER (eds.), Change and Stability in International Law-Making, Berlin, de Gruyter, 1988, 175.

129
cogens is part of international law today or can be recognized as such. Nevertheless, the
International Court of Justice has unequivocally identified the prohibition of genocide as a
norm of jus cogens in the Armed Activities on the Territory of the Congo without declaring a
reservation to the Genocide Convention void.563 Furthermore, the Court has arguably
recognized the prohibition of the use of force in Military and Paramilitary Activities in and
against Nicaragua outside any context of nullity of a derogatory act.564 Consequently, it is
possible to identify norms of jus cogens without that the sanction of nullity comes into play. It
seems a conundrum has emerged: on the one hand, the sanction of nullity distinguishes norms
of jus cogens from other mechanisms of non-derogation, on the other hand, regarding the
sanction of nullity as an integral part of the rule of recognition could result in no identification
of rules of jus cogens at all. The solution may however lay within the element of the
acceptance and recognition of the international community of States as a whole that a certain
norm is part of jus cogens. This element implies that States recognize and accept that the
norm cannot be derogated from and that in case of derogation, the particular norm is invalid.
Therefore, the recognition or acceptance of a norm as jus cogens entails that States have the
conviction that any possible future derogation will have no effect and will be void.565 The
sanction of nullity is preconceived in the recognition or acceptance. This allows
differentiating norms of jus cogens from other forms of non-derogation, while at the same
time not having to make the sanction of nullity an integral part of the rule of recognition.

SECTION.5. REGIONAL JUS COGENS

141. I have already examined the elements of the rule of recognition laid down in Article 53
Vienna Convention on the Law of Treaties. The first element was that a norm of jus cogens
has to be a norm of general international law, or a norm binding upon the generality of
international law subjects. Furthermore, there has to be recognition or acceptance by the
international community of States as a whole that the norm permits no derogation. From this,
it becomes clear that a peremptory norm operates at the global level. But does this entail that
there can be no jus cogens applicable to a certain group of States? In this part I will examine
whether such a regional jus cogens is possible. For the sake of simplicity, regional jus cogens
will not only refer to peremptory norms which will be accepted by a regional group of States,

563
Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, §§ 64-69.
564
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 190. Although the Court does not expressly recognize the prohibition of the
use of force as a peremptory norm, it refers to the statements of State representatives, including the
representatives of Nicaragua and the United States before the Court, on the peremptory nature of the norm and
to the commentary of the International Law Commission to Article 50 Draft Convention on the Law of Treaties.
According to the Court, this further reinforces the confirmation that the prohibition of the use is part of
customary international law. Various commentators have not hesitated to conclude that the Court implicitly
accepted the peremptory character of the prohibition on the use of force: H.W.A. THIRLWAY, “The Law and
Procedure of the International Court of Justice 1960-1989, Part Two”, British Yearbook of International Law
1990, 108-109; C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 151-
152; M.E. TURPEL and P. SANDS, “Peremptory International Law and Sovereignty: Some Questions”,
Connecticut Journal of International Law 1987-1988, 367.
565
See: U. LINDERFALK, “The Creation of Jus Cogens – Making Sense of Article 53 of the Vienna
Convention”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2011, 374-375.

130
but to all groupings of States which do not comprise the overall majority of the international
community. Regional jus cogens can thus equally contain norms which are operative for a
group of States with the same economic or politic system, although expanding a particular
region or scattered around the globe. The group of States has to be larger than two since any
bilateral norm of jus cogens could be derogated from by the parties by a subsequent
agreement. Derogation in this respect would equal abrogation.566

142. The possibility of regional jus cogens has been affirmed567 and denied568 in doctrine. At
first sight Article 53 bars the possibility to a regional jus cogens. If this provision is indeed a
rule of recognition, then regional jus cogens would not be possible since it is no general
international law and it is not recognized or accepted by the international community as a
whole. On the other hand, if a limited group of States accepts that a certain norm is not to be
derogated from upon the sanction of nullity of the derogating norm, is it then not justified to
label this norm as a norm of (regional) jus cogens? In any event, the identification of regional
jus cogens norms has been scarce569 and has been criticized because of the absence of the
requirements of Article 53.570

143. The proponents of regional jus cogens can point to the wording of Article 53, which
defines peremptory norms for “the purpose of the present Convention”. Therefore, Article 53
does not exclude jus cogens on a regional level.571 Furthermore, the fact that the preliminary
works of the International Law Commission seem to exclude regional jus cogens,572 does not

566
A. VERDROSS, “Jus Dispositivum and Jus Cogens in International Law”, American Journal of International
Law 1966, 61; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 204.
567
R. KOLB, “The Formal Source of Ius Cogens in Public International Law”, Zeitschrift für öffentliches Recht
1998, 99-102; J. SZTUCKI, Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical Appraisal,
Vienna, Springer, 1974, 107-108; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992,
203-204.
568
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 38-
40; A. VERDROSS, “Jus Dispositivum and Jus Cogens in International Law”, American Journal of International
Law 1966, 61; M. KREĆA, “Some General Reflections on Main Features of Ius Cogens as Notion of
International Public Law”, in G. GUTTIÉRREZ GIRARDOT et al. (eds.), New Directions in International Law,
Essays in Honour of Wolfgang Abendroth, Frankfurt, Campus Verlag, 1982, 33; A.-J. LEONETTI, “Interprétation
des traités et règles imperatives du droit international general (jus cogens)”, österreichisches Zeitschrift fur
öffentliches Recht 1973, 100.
569
The prohibition of the death penalty for juveniles has been recognized as a norm of jus cogens of the
American human rights system by the Inter-American Commission on Human Rights: Pinkerton and Roach v.
United States of America, Resolution 3/87, Case No. 9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), §§ 54-55;
Michael Domingues v. United States of America, Case 12.285, Report No. 62/02, Doc.5 rev.1 (2002), §§ 84-85.
570
Dissenting Opinion GERARDO MONROY CABRA, Pinkerton and Roach v. United States of America,
Resolution 3/87, Case No. 9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), § 4.
571
R. KOLB, “The Formal Source of Ius Cogens in Public International Law”, Zeitschrift für öffentliches Recht
1998, 99-100; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 203.
572
Although the possibility is not expressly excluded, the International Law Commission stated that “This
provision makes it plain that nullity attaches to a treaty under the article only (emphasis added) if the rule with
which it conflicts is a peremptory norm of international law of which no derogation is permitted, even by
agreement between particular States”: Yearbook of the International Law Commission 1963, Vol. II, 199. On
the other hand, the statement of BARTOŠ, 705th Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 72, that: “The Drafting Committee had also meant to to make it
clear that the article was concerned with universal international law; that was why the title referred to general
international law, to the exclusion of regional international law.” could be interpreted in different ways. The
first sentence could mean that for the purpose of the convention jus cogens would be limited to norms of

131
mean that Article 53 does since preparatory works only have a limited impact on the
interpretation of a treaty provision pursuant to Article 32 Vienna Convention on the Law of
Treaties. Also, it has been held that a regional jus cogens norm is easier to attain since an
agreement on a norm of jus cogens between a limited amount of States with the same
(regional) background can be more easily reached.573

144. Opponents refer not only to the requirements of Article 53 in refuting the possibility for
regional jus cogens, but also point out the difficulties this might entail. Regional jus cogens
might introduce chaos in the international legal system since the validity of a treaty concluded
between a State from the group with a regional peremptory norm and another State not of the
regional group, might be unclear.574 However, the prohibition of derogation only concerns a
limited number of States within the larger group of States. As a result, only derogatory norms
created by members of the group would be invalid. Treaties between a member of the group
and a third State would not be invalid, since the agreement binding the members of the group
does not bind the third State and derogation only applies ratione personae.575 In relation
between members of the group and third States, general international law continues to apply.
As a result, the argument on the basis of risk of chaos in international relations might be
exaggerated.

145. In my view the starting point is that under general international law the sanction of
nullity is introduced for only a limited number of instances, including for derogation from a
norm of general international law to which the whole international community attaches a
certain importance so that derogatory norms are considered void. Therefore, the existence of a
regional jus cogens with the same sanction cannot lightly be presumed. Moreover, as such
there is no widespread practice which would accept the possibility of such norms. As a result,
it might be difficult to argue that general international law would allow for regional jus
cogens. In addition, there are conceptual problems with regional jus cogens. First, regional jus
cogens existing alongside a norm of general jus cogens should respect and be consistent with
international jus cogens, since it would otherwise constitute an unlawful derogation by a
limited number of States of the peremptory norms accepted by the international
community.576 In this respect, regional jus cogens is indistinguishable from ordinary treaties
and custom. Second, regional jus cogens is only binding for the States that have accepted it or
have consented to it. It has been remarked that regional jus cogens will mostly be established
on the basis of a treaty,577 although it cannot be excluded that a regional customary norm later

general international law. The second sentence could be interpreted in such a way that jus cogens norms can
only be norms of general international law: J. SZTUCKI, Jus Cogens and the Vienna Convention on the Law of
Treaties, A Critical Appraisal, Vienna, Springer, 1974, 106.
573
J. SZTUCKI, Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical Appraisal, Vienna,
Springer, 1974, 108.
574
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 40.
575
See supra, No. 128; R. KOLB, “The Formal Source of Ius Cogens in Public International Law”, Zeitschrift
für öffentliches Recht 1998, 101.
576
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 56; M.
VIRALLY, “Réflexions sur le ‘Jus Cogens’”, Annuaire Français de Droit International 1966, 14; G. TUNKIN,
Theory of International Law, London, George Allen & Unwin, 1974, 444; M. RAGAZZI, The Concept of
International Obligations Erga Omnes, Oxford, Clarendon, 1997, 195.
577
According to SCHWARZENBERGER, jus cogens as laid down in the Vienna Convention on the Law of Treaties
could not exist in international law, but jus cogens can only be established on the basis of (regional) treaties: G.

132
becomes accepted as a norm of regional jus cogens. Yet, regional customs are more likely to
be based on consent as well.578 Hence, whether a State will be bound by a regional norm of
jus cogens will largely depend on its consent, so that it cannot be presumed from the mere fact
of being located in the region that a State is bound by the norm.579 Furthermore, nothing
would prevent such States to renounce the treaty containing the norm of regional jus cogens
or to conclude a later treaty going against the norm of regional jus cogens. By such action
they indicate that they do not consider themselves as belonging to the limited regional
community anymore and want to align their position with general international law. The
community might consider the treaty void, but nothing in general international law could
prevent the derogating States from carrying out the treaty. Consequently, there are essential
differences between norms of regional jus cogens and jus cogens as defined in Article 53
Vienna Convention on the Law of Treaties, to such an extent that it is doubtful that regional
jus cogens can operate in the same manner as general jus cogens. The concept of regional jus
cogens can therefore not be retained. This does not entail that regional norms providing in the
sanction of nullity are irrelevant from the perspective of jus cogens. They may reflect the
recognition or acceptance of a limited number of vanguard States as to the development of an
international norm of jus cogens. Gradually, the scope ratione personae of the norm can
expand when more and more States share this recognition or acceptance, resulting in the end
in the creation of a new norm of jus cogens or a modification of an existing norm of jus
cogens.

SECTION.6. CONCLUSION

146. The examination of the separate elements of Article 53 Vienna Convention on the Law
of Treaties from the perspective of a rule of recognition has revealed some important aspects
of jus cogens. First, concerning the formal sources – the processes which give rise to
international law – I came to the conclusion that general international law in the framework of
jus cogens can be either created through custom or through treaty law. There is wide support
in the case law of the International Court of Justice, doctrine, the International Law
Commission and States that custom is the source leading to general international law with the
quality of jus cogens. Concerning treaties, there is more doubt, because treaties unlike custom,
are based on consent and do not bind third States. Nevertheless, treaties can create
international law that is binding upon the overall majority of the international community of
States. There are even universal treaties, such as the Charter of the United Nations and the
Geneva Conventions of 1949. Other treaties, for instance the Convention on the Rights of the
Child, the International Covenant on Civil and Political Rights, the Protocols to the Geneva
Conventions and the Nuclear Non-Proliferation Treaty, have been ratified by the overall
majority of States. These treaties regulate important aspects of international life for the
generality of States. Moreover, the objection that jus cogens binds all States, whereas treaties
only bind the parties to the treaty is more concerned with the element of acceptance and
recognition of the international community of States as a whole, than with the requirement of

SCHWARZENBERGER, “International Jus Cogens?”, Texas Law Review, 1964-1965, 459-460 and 470; G.
SCHWARZENBERGER, International Law and Order, London, Stevens & Sons, 1971, 27 et seq.
578
Supra, No. 30.
579
M. RAGAZZI, The Concept of International Obligations Erga Omnes, Oxford, Clarendon, 1997, 196.

133
general international law. What in the first place matters is that a norm is part of general
international law binding upon the overall majority of States. It will be from this pool that the
international community of States will select the peremptory norms which will upon selection
become binding upon all States. In this respect, once selected the particular source of the
peremptory norm will no longer be relevant. However, this does not mean that the whole
examination of the sources of jus cogens has been irrelevant. First of all, it has provided better
insight into the customary process as an amalgam of practice and opinio juris sive
necessitatis, leading to the conclusion that the two elements of customary international law
are intrinsically intertwined. Furthermore, it was revealed that custom is not based upon
consent, thus rejecting the view that international law is based on consent alone, a finding
which is of the utmost importance for the concept of jus cogens. Secondly, the conclusion was
reached that one source could not result in jus cogens norms. After examination I have
excluded general principles of law recognized by civilized nations as a source of jus cogens.
This does not mean that this source of international law is not important. On the contrary,
general principles of law are comprised of two groups, principles which are underlying each
national system and are brought at the international level to fill in lacunae, and principles
necessarily present in each legal system. While I have considered the first group as a true
formal source under international law, it cannot be retained as a source for jus cogens since it
requires a judicial body to operate. Since the principles of the first category are used to fill in
lacunae, this would entail that in a particular dispute a judicial body acting as legislator filling
in lacunae in international law creates a norm of jus cogens, that can later be used for
declaring a clearly established rule void. Concerning the second category of general principles
of law, principles underpinning each legal system, this material source of law – they need not
to result from a law-making process since they are inherent to every legal system – is at first
sight more promising: it can perfectly be argued that States should be aware of these
principles so that norms derogating from them are considered null and void. Furthermore,
they are content-wise more important than the first category since they are principles which
give a system the predicate of “legal”. Yet, precisely because of this, they cannot belong to jus
cogens since these principles as such cannot be changed while peremptory norms may change
without meaning that the legal system ceases to be legal. A last conclusion of the examination
into the sources of jus cogens norms was that there is no need for a separate source of jus
cogens. This contention was primarily based on the conception of international law deriving
its binding nature from consent. However, as is demonstrated by our examination of custom,
this source is not based on consent; treaties require consent to be bound, but once consent is
given, it might not easily be retracted. In any event, the remark more concerns the second
element, the acceptance and recognition of the international community as a whole.

147. The conclusion that peremptory norms flow from the two most important sources of
international law, treaties and custom, has a huge impact on the understanding of jus cogens.
First of all, peremptory norms need to be created as any other norm of international law and in
this respect ordinary norms are as binding as peremptory norms. Furthermore, peremptory
norms cannot be equated with natural law, which is traditionally conceived as pre-existing
and unchangeable. Furthermore, rules of international law derogating from ethical
prescriptions as such do not make the derogatory rule void. What is needed is that these
ethical norms are laid down in positive international law, either in a treaty or in custom. This
is not a cumbersome requirement, since due to the importance of these ethical principles, they
will be laid down in international law in any event. In this respect I have remarked that the
opinio juris sive necessitatis, an essential element of customary international law, can be
expressed because one is of the conviction that due to the moral importance of a norm, the
norm should also be a legal norm. Since I have moreover adhered to a broad view on State

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practice, including statements and resolutions of international organizations, customary norms
reflecting the ethical underpinnings of the international community can be rather easily
formed.

148. The final draft of the provision on jus cogens in the Draft Articles on the Law of
Treaties defined a peremptory norm as a norm of general international law from which no
derogation was permitted. This definition did not establish which entity had the authority to
qualify a norm as peremptory. It is not because jus cogens norms have to be part of general
international law, which is primarily created by States, that it will be States who have the
capacity to identify these norms: this might well be left over to international courts or
international organizations. Yet, during the Vienna Conference an amendment was accepted
establishing the international community of States as a whole as the authority to bestow upon
a rule of general international law a jus cogens character. According to this element of the
definition States form an international community, i.e. accept shared values and goals. Indeed,
the concept of jus cogens as a norm binding upon all States implies that the main actors in the
international sphere have a minimum of common values which they deem of such importance
that no legal derogation from them is permitted under international law. Although some are
sceptical that such common values and goals can exist at the international level, I have
submitted that there exists a community at the international level with shared goals, values
and interests. I have furthermore found that from a sociological point of view, this
international community should not be limited to States, since other entities could equally
influence the adoption of common values and goals in the international community.
Nevertheless, in order for these values to be enshrined in international law they have to go
through the processes of law creation, in which States still play a key role since historically
they are the legislative authority in international law. Therefore, it will be those common
values which States have accepted in international law and which they deem to be of the
utmost importance, which will be laid down in peremptory norms. Despite this, it does not
mean that other actors have no role to play in the formation of peremptory norm: they do not
have formal authority, but can and do influence States to adopt certain rules and have their
own conception on which rules should belong to jus cogens. Since States interact with other
entities in the sociological international community the possibility of influence is not remote.
In any event, the problem of a cleavage between the larger international community and the
international community of States as the legislative authority, is very real and could endanger
the legitimacy of the international legal system.

149. Derogation in Article 53 means that a limited group of States has no authority to adopt
rules not in conformity with the peremptory norm of international law. In other words, the
law-making capacity of individual States is limited by the acceptance or recognition by the
collectivity of States that a norm has a certain characteristic. As a result, individual States
cannot adopt or create treaties, customs or unilateral acts with normative effects going against
norms of jus cogens. It remains however generally permitted to adopt norms which go further
than the minimum standards accepted as jus cogens: only negative derogation is prohibited,
positive derogation is generally allowed. Furthermore, it was pointed out that the prohibition
of derogation means that norms which cannot be derogated from because of logical reasons
cannot belong to jus cogens. The prohibition of derogation requires that it is possible to
derogate from peremptory norms since otherwise the prohibition of derogation would be
pointless. As a result, the principle of pacta sunt servanda and principles of law that are
inherent to all legal systems, in particular good faith, cannot be said to belong to jus cogens.

150. The limitation of the law-making capacity of individual States entails that the
derogatory norms are not considered to be valid, they are void. The sanction of nullity is not

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an essential element of the definition of jus cogens, rather it is the necessary consequence of a
derogation from a peremptory norm. Recognizing or accepting a norm as jus cogens implies
that the international community of States as a whole considers future attempts of derogation
as invalid. The element of invalidity is taken into consideration in the recognition or
acceptance: there is an acceptance that certain norms require that derogation cannot have any
validity. This is the crux of the concept of jus cogens. Not all instances of impermissibility of
derogation will have this effect. Indeed, it is perfectly possible that the derogatory norm is
considered to be valid, but not opposable or infringing another rule leading to State
responsibility. Yet, in that case, the law-making capacity of individual States is not limited:
they can create valid international law, but would not be able to invoke it against third parties
or will incur responsibility, but the derogatory norm continues to stand. The derogatory norm
may also count as precedent or have other legal effects, while in case of a jus cogens norm,
the derogation will be considered as non-existent and thus cannot have any effect. As a result,
the concept of jus cogens is more specific than the mere legal technique of not allowing
derogation to protect a certain regime from fragmentation.

151. Finally, concerning the existence of regional jus cogens, although nothing would
prevent a limited group of States from adopting a rule which establishes that nullity is the
sanction of norms aiming to derogate from the rule, it would not be correct to label such
norms as jus cogens. Norms of regional jus cogens have to respect general jus cogens that
thus determines the validity of regional jus cogens in the same manner as ordinary treaty and
customary norms. Consequently, regional jus cogens will have to respect the norms that fulfil
the requirements of the rule of recognition laid down in Article 53 Vienna Convention on the
Law of Treaties. In addition, it has been demonstrated that there are essential differences
between regional jus cogens and general jus cogens. In particular, regional jus cogens is based
on consent and in the end derogations of such norms cannot effectively be combated with the
sanction of nullity since nothing in general international law would prevent the execution of
the derogatory agreement. Moreover, jus cogens implies more than the mere sanction of
nullity of derogating norms; precisely the overall acceptance of the fundamental importance
of a norm by politically, socially and culturally diverse States is the distinctive characteristic
of jus cogens. Regional jus cogens evidently misses this dimension and can therefore not be
retained. In any event, practice is virtually silent on the existence of a regional jus cogens so
that regardless of theoretical considerations there is no basis in positive international law to
retain the concept.

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CHAPTER.2. OTHER CRITERIA FOR IDENTIFICATION

SECTION.1. INTRODUCTION

152. The discussion of Article 53 as a rule of recognition leads to the general conclusion that
the definition contained therein remains formalistic: a peremptory norm is a norm accepted to
be so by the international community of States as a whole. Thus, unless one can point to a
clear acceptance by the international community of States as a whole, it will be very difficult
to identify peremptory norms. This does not detract any value from Article 53 as a rule of
recognition since a rule of recognition might be unclear and prone to interpretation. This
entails that a peremptory norm must be demonstrated by looking into the legal convictions of
nearly all States, a Herculean task. Therefore, doctrine has proposed additional criteria for the
identification of peremptory norms. Norms of jus cogens protect certain important values and
interests and if those values and interests have certain characteristics in common, a substantial
criterion for peremptory norms may be identified, one that lessens the burden of identifying
peremptory norms through the proof of a recognition or acceptance of the international
community of States as a whole. In this chapter, the criteria of the common interests of the
international community, the most important moral principles of the international community
and the absolute character of the norm, will be investigated as doctrinal benchmarks for
discovering the existence of a peremptory norm.

SECTION.2. JUS COGENS AS NORMS PROTECTING THE COMMON INTERESTS OF THE

INTERNATIONAL COMMUNITY

153. Norms of jus cogens do not exist to satisfy the needs of individual States, but the needs
and interest of the international community as a whole.580 According to CHERIF BASSIOUNI, if
an international crime affects the interests of the international community as a whole, because
of the threat to peace and security of humankind they pose, this might lead to the conclusion
that an international crime is part of jus cogens.581 KORNICKER UHLMANN is of the opinion
that a jus cogens norm must satisfy four criteria, namely a norms must ensure the protection
of a State community interest, have a basis in morality, is absolute in nature and has been
accepted by the overwhelming majority of States (double consent).582 With regard to the first

580
Siderman de Blake et al. v. Republic of Argentina, 965 F.2d 715 (9th Cir. 1992); A. VERDROSS, “Jus
Dispositivum and Jus Cogens in International Law”, American Journal of International law 1966, 58; E.P.
NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public, Athens,
Éditions Papazissis, 1974, 40; D. COLARD, “Premières réflexions sur le ‘Traité des Traités’: La Convention de
Vienne du 23 mai 1969”, Journal de Droit International 1970, 276; A. ORAKHELASHVILI, Peremptory Norms in
International Law, Oxford, Oxford University Press, 2006, 46-47; A. ORAKHELASHVILI, “International Public
Order and the International Court’s Advisory Opinion on Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory”, Archiv des Völkerrecht 2005, 241-242; H.P. AUST and N. NASKE,
“Rechtsschutz gegen den UN-Sicherheitsrat durch europäische Gerichte? Die Rechtsprechung des EuG zur
Umsetzung ‘gezielter Sanktionen’ aus dem Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht
2006, 607.
581
M. CHERIF BASSIOUNI, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, Law and
Contemporary Problems 1996, 69.
582
E.M. KORNICKER UHLMANN, “State Community Interest, Jus Cogens and Protection of the Global
Environment: Developing Criteria for Peremptory Norms”, Georgetown International Environmental Law

137
criterion she notes that State community interests serve the benefit of the community of States
as a whole, and in the end, it should benefit humankind and individual human beings.583
Furthermore, a State community interest implies that States depend on each other in
protecting the common interest. State community interest are not collective State interests,
which is merely the sum of all individual State interests; rather, State community interests
have the purpose of meeting the compelling necessities and the serving of the benefit of the
community as a whole.584 When States are in mutual dependence, such interests will likely
arise and can only be tackled by close international cooperation. Finally, State community
interests surpass the traditional reciprocity of rights and obligations in international law since
each State has an obligation to protect the common interest without a duty of other States to
do something in return.585 DE HOOGH states that a jus cogens norm need to reflect the
fundamental interests or values of the international community as a whole.586 VIRALLY
regards as justification of the prohibition of derogation the protection of interests that surpass
the individual interests of States.587 For NICOLOUDIS jus cogens is linked to the common
interests of the international society that are indispensable for its well-being.588 GROSSE states
that the justification of the prohibition of derogation lies in the protection of certain interests
which go beyond the individual interests of States. Those interests may be ethical values.589
Starting from ordre public, which protects the fundamental values of a legal system against
inconsistent individual interests, ORAKHELASHVILI subscribes to this view since for him
norms of jus cogens protect the most important values and interests of the international
community as a whole in contrast with individual State interests. The reason why a certain
interest becomes a fundamental value of the international community is because it is based on
morality.590 PARKER and NEYLON consider jus cogens norms as reflecting the developing
interests of the international community as a whole, not the individual interests of a certain
State.591 VISEUR SELLERS traces the origins of jus cogens to the need of the community of
States to secure common interests.592 For GÓMEZ ROBLEDO the most reliable criterion to

Review 1998, 104. She however adds that the first two criteria are the most important in that if they are fulfilled,
the norms is presumed to be part of jus cogens, which can be rebutted by unequivocal counterindications
concerning absolute character and double consent: Ibid., 114.
583
Ibid., 106.
584
Ibid., 107.
585
Ibid., 107.
586
A.J.J. DE HOOGH, “The Relationship between Jus Cogens, Obligations Erga Omnes and International
Crimes”, Austrian Journal of Public and International Law 1991, 187.
587
M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire Français de Droit International 1966, 11.
588
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain de droit international public,
Athens, Papazissis, 1974, 40.
589
L. GROSSE, “Racines historiques et fondements contemporains des normes impértives (jus cogens) dans la
théorie et la pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et
Politiques 1995, 233.
590
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 45-
49; A. ORAKHELASHVILI, “The Impact of Peremptory Norms on the Interpretation and Application of United
Nations Security Council Resolutions”, European Journal of International Law 2005, 62-63.
591
K. PARKER and L.B. NEYLON, “Jus Cogens: Compelling the Law of Human Rights”, Hastings International
and Comparative Law Review 1988-1989, 428.
592
P. VISEUR SELLERS, “Sexual Violence and Peremptory Norms: The Legal Value of Rape”, Case Western
Reserve Journal of International Law 2002, 291.

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identify jus cogens is the common interest of the international community.593 This view finds
support in the advisory opinion of the International Court of Justice concerning Reservations
to the Convention on the Prevention and Punishment of the Crime of Genocide where the
Court held that States have merely a common interest in the upholding of the convention, not
an interest on their own because the convention had a humanitarian and civilizing purpose.594
The representatives of Zambia supported the viewpoint that the criterion for identifying jus
cogens was the common interest such norms serve, not the needs of individual States.595

154. Nevertheless, although it is undoubtedly true that jus cogens protects the interests of the
international community against individual State interests, the problem with common interests
is that they remain too vague to identify norms of jus cogens. Nobody would deny that
common interests include, peace, international cooperation, justice and respect for the basic
rights of the human person, yet which particular norm exactly reflects at a certain moment in
time that interest? What if two common interests clash? Is peace in certain circumstances not
advanced by using armed force? What about the concept of just war? Are all human rights
norms of jus cogens? Which rights are basic? Answers to these questions are not easily given
or there might be disagreement about the norm advancing the common interest in the best
way: although there might exist an agreement on a common interest, disagreement may arise
on the optimal legal formulation of the common interest or on the means to achieve the
common interest. If the international community has an interest in peaceful relations between
its members, it will surely aim at limiting the use of force as far as possible, but how far? Will
it only include a right to self-defence or also allow humanitarian interventions? Similarly, the
international community aims to prevent genocide, but what is understood by genocide? Does
it or should it also include political groups and acts of socially, but not physically eliminating
a certain group? International subjects can perfectly profoundly disagree about this issue,
while wholeheartedly subscribing to the common interest of international peace and the
prohibition of genocide. In the end, the common interest will need to be concretized in
international law and it will be the concretization of the common interest in legal text that will
form the basis of norms of jus cogens.596 Furthermore, there are numerous community
interests, some considered to be more important than others by some members of the
international community, whilst others may be more favoured by other States. Hence, with
regard to jus cogens, which common interest should have precedence in case of conflict needs

593
A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours
1981-III, 33.
594
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Rep. 1951, 23.
595
Zambia, 56th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 9.
596
In the words of the International Court of Justice in the South West Africa (Ethiopia v. South Africa/Liberia
v. South Africa), Second Phase, Judgment, ICJ Rep. 1966, §§ 49-50: “It is a court of law, and can take account
of moral principles only in so far as these are given a sufficient expression in legal form. Law exists, it is said,
to serve a social need; but precisely for that reason it can do so only through and within the limits of its own
discipline.”, and: “Humanitarian considerations may constitute the inspirational basis for rules of law, just as,
for instance, the preambular parts of the United Nations Charter constitute the moral and political basis for the
specific legal provisions thereafter set out. Such considerations do not, however, in themselves amount to rules
of law. All States are interested – have an interest – in such matters. But the existence of an ‘interest’ does not
of itself entail that this interest is specifically juridical in character.” Therefore: “In order to generate legal rights
and obligations, it must be given juridical expression and be clothed in legal form.”

139
to be determined by the international community of States as a whole. Concluding, the
protection of the common interest is only a limited criterion for identifying peremptory
norms. Peremptory norms always protect a common interest, but not all common interests are
protected by peremptory norms. In addition, the mere existence of a common interest does not
determine the content of the norm that has to protect the common interest. In international law
such norm will have to be agreed or accepted by States. In any event, the criterion is not
completely useless since it excludes all norms of general international law reflecting an
individual or collective interest, i.e. interest shared by a group or all States, that are not more
than the sum of their individual interests.597

SECTION.3. JUS COGENS AS THE MOST IMPORTANT MORAL PRINCIPLES OF THE

INTERNATIONAL COMMUNITY

155. Related to the foregoing criterion is the point of view that considers norms of jus
cogens as the most important moral principles of the international community. Although
sometimes both criteria overlap or merge, they are not necessarily identical. The common
interest of the international community can be contrary to moral postulates or be restricted by
those. For instance, the effective fight against international terrorism is a community interest,
but not every means is morally defensible. In any event, there is a strong tendency in doctrine
to regard jus cogens as reflecting the main ethical principles of the international
community.598 Special Rapporteur LAUTERPACHT stated that treaties would be void if they
conflict with principles of international public policy, which did not need to be crystallized in
a rule of international law, but would express cogent principles of international morality.599
According to ALEXIDZE, one element which needs to be present for identifying jus cogens
norms is the vital social and moral value of the norms for the functioning of the international
legal order.600 In the field of international criminal law CHERIF BASSIOUNI considers the
shocking of the conscience of humankind as an element to bestow an international crime with
a jus cogens nature.601 KORNICKER UHLMANN states that a second necessary criterion for jus
cogens norms is their foundation in morality or the feeling of compliance because of the idea
of duty alone.602 VIRALLY considers norms of the highest ethical importance as norms which
would belong to rules going beyond the individual interest of States and thus belonging to jus

597
E.M. KORNICKER UHLMANN, “State Community Interests, Jus Cogens and the Protection of the Global
Environment: Developing Criteria for Peremptory Norms”, Georgetown Environmental International Law
Review 1998, 107.
598
D. COLARD, “Premières réflexions sur le ‘Traité des Traités’: La Convention de Vienne du 23 mai 1969”,
Journal de Droit International 1970, 278; A. ORAKHELASHVILI, Peremptory Norms in International Law,
Oxford, Oxford University Press, 2006, 48-49.
599
Special Rapporteur LAUTERPACHT, “Report on the Law of Treaties”, Yearbook of the International Law
Commission 1953, Vol. II, 155.
600
L.A. ALEXIDZE, “The Legal Nature of Jus Cogens in Contemporary International Law”, Recueil des Cours
1981-III, 261.
601
M. CHERIF BASSIOUNI, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, Law and
Contemporary Problems 1996, 69.
602
E.M. KORNICKER UHLMANN, “State Community Interest, Jus Cogens and Protection of the Global
Environment: Developing Criteria for Peremptory Norms”, Georgetown International Environmental Law
Review 1998, 110.

140
cogens.603 For FORD jus cogens embodies the idea of a higher moral order against which
international law must be judged.604 According to DE VISSCHER, norms of jus cogens are
qualified by their ethical nature.605 For JANIS norms of jus cogens are related to natural law
and reflect the fundamental rules of the international legal system.606 According to CARILLO
SALCEDO jus cogens norms are essentially imbued with a strong ethical connotation.607
During the Vienna Conference representatives also pointed out the relation between jus
cogens and international morality. The representative of Ivory Coast considered that jus
cogens introduced into international law the essential concept of morality.608 The
representative of Germany spoke of an international public order.609 Therefore, if a norm of
international law reflects the basic moral prescriptions of the international community, it
should be regarded as belonging to jus cogens since the more important the norm from a
moral perspective the more chance that States do not consider derogation permitted, because
derogation would undermine the moral principle enshrined in the norm.

156. On the other hand, there remains a distinction between international law and
international morality,610 which are two different normative systems influencing and
overlapping each other, while still remaining distinct. A norm of general international law in
the first place belongs to jus cogens on the basis of international law and not on the basis of
international morality.611 It might well be that a derogatory act is considered to be immoral,
but not legally invalid. Furthermore, a norm of jus cogens might have a morally neutral
content. The importance of moral principle can constitute a pull to a consensus or shared
conviction that a norm is part of jus cogens, but this is not necessarily so. Nevertheless, it
might well be that in reality jus cogens norms are based on moral principles and on them
alone. Proponents of the moral basis of jus cogens could very well argue that if a norm of
international law is part of general international law and enshrines a morally, highly important
standard it belongs to jus cogens. Thus, the distinction between law and morality is upheld: it
is only when a moral standard has been incorporated in general international law that it will
become a norm of jus cogens. Although theoretically a norm of jus cogens could have a
morally neutral content, that does not imply that in practice the criterion of identification is
unsound, since if most if not all peremptory norms are based on moral precepts, it would
allow identifying most if not all peremptory norms.

603
M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire Français de Droit International 1966, 11.
604
C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 149.
605
P. DE VISSCHER, “Cours général de droit international public”, Recueil des Cours 1972-II, 107.
606
M.W. JANIS, “The Nature of Jus Cogens”, Connecticut Journal of International Law 1987-1988, 362.
607
J.A. CARRILLO SALCEDO, “Reflections on the Hierarchy of Norms in International Law”, European Journal
of International Law 1997, 592; J.-A. CARILLO-SALCEDO, “Droit international et souveraineté des états: Cours
général de droit international public”, 257 Recueil des Cours 1996, 140.
608
Ivory Coast, 56th Meeting of the Committee of the Whole, United Nations Conference on the Law of
Treaties, Official Records, Vol. I, 1969, § 53.
609
Federal Republic of Germany, 19th Plenary Meeting, United Nations Conference on the Law of Treaties,
Official Records, Vol. II, 1970, § 26.
610
South West Africa (Ethiopia v. South Africa/Liberia v. South Africa), Second Phase, Judgment, ICJ Rep.
1966, § 49.
611
G.I. TUNKIN, “Jus Cogens in Contemporary International Law”, University of Toledo Law Review 1971, 117;
L.A. ALEXIDZE, “The Legal Nature of Jus Cogens in Contemporary International Law”, Recueil des Cours
1981-III, 252.

141
157. Despite the foregoing there remains a problem with the view that the moral quality and
importance of a norm is one of the criteria for allocating peremptory status. Although
proponents of this view can indeed point to the morally important character of peremptory
norms – such as the prohibition against genocide, against inter-State use of force, against
racial discrimination, against torture etc. – the issue remains how the moral quality of a norm
of general international law is assessed; in other words, if peremptory norms are identified on
the basis of their moral quality, as reflecting important moral values, how is the moral quality,
the moral importance determined and by whom? One way of establishing the moral
importance of a certain rule of international law is by agreement or acceptance that a certain
moral value is of such importance that the international rule it is enshrined in needs to have
peremptory status. Since according to Article 53 Vienna Convention on the Law of Treaties it
is the international community of States as a whole that should accept the peremptory status
of a norm, a near universal agreement or acceptance by States of the importance of a moral
value would be required. But then, the criterion of morality does not add much to the
requirement of international consensus to bestow a norm with peremptory status. Indeed, the
element of acceptance and recognition of the international community of States does not
exclude any reason why the near universality of States qualifies a norm as belonging to jus
cogens, and such qualification might well be due to the importance of the underlying moral
value. Nevertheless, if the moral importance of a norm has to be agreed upon, then proponents
of morality as the criterion of identification of peremptory norms need to establish that
consensus, since pointing to an existing intersubjective belief in the moral importance of a
norm is not sufficient. Rather the moral norm enshrined in general international law needs to
be of a certain importance; it must be so morally cogent that there also exists an
intersubjective acceptance that the norm ought to be peremptory. But in such case, this would
essentially boil down to establishing that States have recognized or accepted a particular norm
of general international law as part of jus cogens.

158. In order for the criterion of morality to have any autonomous meaning, proponents of
the moral character of a norm as the litmus test for identifying peremptory norms cannot be
satisfied with the mere recognizance of an intersubjective agreement on the moral importance
of the norm, but instead they need to argue that the moral importance of the norm does not
depend on an agreement or a general acceptance. Rather, the norm will be qualified as
peremptory regardless of whether there is agreement or acceptance; it is because the norm is
objectively or really of such an importance that it will belong to jus cogens.612 In other words,
if the criterion of moral quality of the norm is to be retained as a meaningful criterion, its
supporters need to adopt the position of moral realists. Unfortunately, it is submitted that

612
Some national and international cases indeed reject the consensual basis of jus cogens: Siderman de Blake et
al. v. Republic of Argentina, 965 F.2d 716 (9th Cir. 1992); Inter-American Commission on Human Rights,
Survivors of the Tugboat ‘13 de Marzo’ v. Cuba, Case 11.436, Report No. 47/96, OEA/Ser.L/V/II.95 Doc. 7
rev. (1996), § 79. For advocates of jus cogens as based on morality regardless of underlying consent, see: A.
ORAKHELASHVILI, Peremptory Norms of International Law, Oxford, Oxford University Press, 2006, 38; J.I.
CHARNEY, “Universal International Law”, American Journal of International Law 1993, 541-542; A.C.
BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A Proposed Exception to
Immunity for Violations of Peremptory Norms of International Law”, California Law Review 1989, 385-387
(nevertheless limiting the scope of jus cogens norms to those that are generally accepted in order to avoid
cultural bias: Ibid., 389); A. VERDROSS, “Forbidden Treaties in International Law”, American Journal of
International Law 1937, 572.

142
moral realism cannot be defended as an adequate account of moral thinking and acting. Moral
realists are of the opinion that moral values are objectively settled and that human being can
have knowledge of these objects either through reason or through discovery over time by
experience.613 Moral realism is supported by ordinary moral language, in which people do not
only express a certain feeling, belief or strongly held emotion, but also that they are right
about their moral commendation or disapproval, that the moral statement is objectively
true.614 Obviously, persons disagreeing with the initial moral statement will also believe their
opinion on the moral issue to be objectively correct. And therein lays the first argument
against moral realism, namely the relativity of morality. Even if one makes abstraction of the
problem of difference between moral systems of different cultures and times – for which one
can mount strong arguments against relativity615 – within a given, pluralist society people
fundamentally disagree about moral issues. The disagreement is not framed in terms of the
precise knowledge about the scope or the content of a value, but concerns a discussion based
precisely on the adherence to and the belief in a certain morally desirable way of life. It is
because they adhere to a certain way of life that people will make particular moral claims
which may clash with the claims of others adhering to another way of life. The discussion is
not characterized by an epistemological search for the true meaning of a particular value
around which moral debate is centred.616 Of course, a moral realist may claim that his version
reflects the objective truth, but the problem remains that there is no recognized methodology
for assessing the moral truth. Hence, the moral realist can ultimately only point to his or her
belief that his or her moral point of view is objectively true.617 Nevertheless, even if it could
be uncontroversially established that a certain value is objectively true, would knowledge
thereof change people’s attitude and behaviour towards a certain moral issue? Unlikely; for
instance, racial theories have been widely scientifically discarded, yet racism remains present
in societies. From this flows the argument of queerness: if objective values would exist, then
they would be like nothing else in the universe. They would at the same time give knowledge
of the value and because of the acquired knowledge compel one to behave according to the
objective value.618 Furthermore, it is unclear how an objective value is linked to its natural
features.619 For instance, torture can be said to be objectively cruel, since it implies the
deliberate infliction of tremendous pain against persons in a weak position in order to get
some information, but this has only established that torture is objectively cruel, not that every
form of cruelty or torture as such is also objectively wrong. The wrongfulness of cruelty or
torture will instead depend on the moral assessment of individual human beings and of

613
J.L. MACKIE, Inventing Right and Wrong, Harmondsworth, Penguin Books, 1977, 30-31.
614
Ibid., 35. DWORKIN also notes that in ordinary moral parlour words stressing the objective nature of the
moral claims are commonly used, but that this is not intended to give moral claims a metaphysical basis, but to
stress that these claims have a moral importance for the person making the claim; that the speaker is strongly
attached to these statements, although as such they do not add to the vehemence of the initial moral claim: R.
DWORKIN, Law’s Empire, London, Fontana Press, 1986, 80-82.
615
See: J. WALDRON, “Review Essay, On the Objectivity of Morals: Thoughts on Gilbert’s Democratic
Individuality”, California Law Review 1992, 1371 et seq. Nevertheless, relativism remains an argument against
moral realism from the perspective of an intrigued observer of moral debate; the debaters on the other hand
cannot have a relativist position towards their own moral points of view: Ibid., 1377.
616
J.L. MACKIE, Inventing Right and Wrong, Harmondsworth, Penguin Books, 1977, 36-37.
617
J. WALDRON, “Moral Truth and Judicial Review”, American Journal of Jurisprudence 1998, 84-86.
618
J.L. MACKIE, Inventing Right and Wrong, Harmondsworth, Penguin Books, 1977, 40.
619
Ibid., 41

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society,620 a point which is demonstrated by the argument that torture might not be wrong in
certain exceptional cases.621 Concluding, it seems that moral realism cannot be defended.
Instead, according to emotivism, moral claims flow from one’s feelings and emotions on
certain values. If this is the case, then by labelling a norm of general international law as jus
cogens one is only expressing one’s feeling or emotion that a the value contained in the norm
is of such moral importance that the norm should be awarded peremptory status. Despite the
sincerity of the emotion on the issue – and emotivist accounts of morality do reflect sincerely
held views on morality – it is only the strongly held opinion of one law-making actor, a State,
that does not have precedence over other opinions concerning the peremptory status of the
norm. Consequently, in the end opinions on the peremptory status of a norm of general
international law, based upon emotions on the value it enshrines, will have to be aligned either
through express consent on the importance of the value or by a (slowly) emerging
intersubjective acceptance of the importance of the value.622

159. The international criminalization of certain behaviour could be said to reflect the
common understanding that the conduct is morally reprehensible. Thus, the international
criminalization of certain conduct, accepted by the overall majority of States in conventions
and custom, would reflect the clearest manifestation of the highest moral values of the
international community and hence indicate the jus cogens status of the norm prohibiting the
behaviour. Intuitively, this reasoning sounds attractive: torture is an international crime and its
prohibition also an often quoted norm of jus cogens;623 aggression is not only prohibited
under international law and universally accepted as a peremptory norm, it is also a crime;624
genocide is equally an international crime and its prohibition a jus cogens norm;625 the list of
grave breaches of the Geneva Convention might give us a clear indication which norms are
peremptory and which not. Nonetheless, despite the overlap international crimes and norms of
jus cogens are not identical. Firstly, international criminal law covers a wide range of conduct,
from corruption, trade in narcotics, small arms and nuclear materials, to terrorism, crimes
against humanity, war crimes and genocide. Not all these domains will contain peremptory

620
Ibid., 41.
621
One does not have to return to the Classical era, the Middle Ages or to the period of witch hunting between
the 16th till the beginning of the 18th century for views that torture is not wrong. The view that torture is allowed
in case of a ticking bomb scenario is uncomfortably close. For an overview of the arguments of the ticking
bomb scenario and a thorough critique: J. WALDRON, “Torture and Positive Law: Jurisprudence for the White
House”, Columbia Law Journal 2005, 1681 et seq.; D. LUBAN, “Liberalism, Torture and the Ticking Bomb”,
Virginia Law Review Association 2005, 1425 et seq.
622
U. SCHEUNER, “Conflict of Treaty Provisions with a Peremptory Norm of General International Law”,
Zeitschrift für ausländisches Recht und Völkerrecht 1969, 30; J.A. BARBERIS, “La liberté de traiter des Etats et
le jus cogens”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1970, 44.
623
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, §§ 153-
157.
624
Article 6 (a) Charter of the International Military Tribunal (1945); Article 5 (a) Charter of the International
Military Tribunal for the Far East (1945); Article 1 Draft Code of Offences against the Peace and Security of
Mankind (1954); Article 5 Rome Statute of the International Criminal Court (1998); Amendments to the Rome
Statute of the International Criminal Court on the Crime of Aggression, Annex I to Review Conference
Resolution RC-Res.6 (2010); Article II (1)(a) Control Council Law No. 10, Punishment of Persons Guilty of
War Crimes, Crimes Against Peace and Against Humanity (1945), 3 Official Gazette Control Council for
Germany 1946, 50-55; House of Lords, R. v. Jones et al., [2006] UKHL 16.
625
Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 64.

144
norms, in fact certain conduct is typically only committed by private individuals against the
State and its prohibition would not involve a peremptory norm since States as such do not
commit these acts. For instance, on this account it might be questioned whether the
prohibition of piracy is a peremptory norm; typically, piracy is committed by private
individuals for private gain on the High Seas.626 Therefore, a treaty between two States in
which they allow each other to commit acts of piracy against the ships of the other party
would seek to transform the nature of piracy. In effect, such a treaty would be prohibited and
void because it would institute privateering – the licensing of private individuals to attack and
capture the ships of the other State – which was expressly abolished in 1856.627 Thus, it is not
the prohibition of piracy, but its legalization in whole or in part, that may or may not involve a
peremptory norm. Of course, the notion of international criminal law could be narrowed as to
practically coincide with jus cogens. CASSESE only regards customary norms that protect
values considered to be important by the international community, in which there is a
universal interest in repression and for which a State official cannot claim immunity as part of
international criminal law.628 On this account every international crime will belong to jus
cogens, since both international crimes and jus cogens reflect important values of the
international community. Nevertheless, the definition excludes certain crimes that may
involve peremptory norms. CASSESE excludes the slave trade and traffic in women, because
these crimes are only laid down in treaties or resolutions and because these crimes are
typically committed by private individuals.629 Nonetheless, the recognition of States in a
treaty of the slave trade and trafficking in women will surely involve issues of peremptory
norms. In addition, CASSESE excludes the crime of apartheid as not established as a customary
crime, though it likely is a peremptory norm. The hindrance of the right to self-determination
is not yet a crime, but the right has been regarded as part of jus cogens.630 Thus, although all
the retained crimes will also be peremptory norms, the reverse is not necessarily true. This
brings us to the second reason international criminal law and jus cogens do not necessarily
overlap: they have different functions in international law. International criminal law aims at
steering the behaviour of individuals in such a way they respect the values of the international
community or else face criminal sanctions.631 Jus cogens on the other hand limits the
legislative power of individual States to adopt derogatory norms from other norms that reflect
the collective interests and values of the international community. Most of the time those
values and interests will be protected by bestowing upon a norm a jus cogens character and
providing for criminal prosecution of individuals who infringe these values and interests.
Nonetheless, certain interests may be such that they warrant international prosecution, but not
that States should be barred from never concluding a treaty or other norm derogating from the
value protected by the international crime. On the other hand, another value might be more
effectively protected by merely incorporating it in a peremptory norm, rather than providing
for international criminal prosecution, for instance because the norm is primarily addressing
States or other collectivities. The right to self-determination is owed to a people and its
impediment is caused by States, who establish a government over a people that has not

626
Article 101 United Nations Convention on the Law of the Sea (1982).
627
Principle 1 Declaration Respecting Maritime Law (1856).
628
A. CASSESE, International Criminal Law, Oxford, Oxford University Press, 2008, 11-12.
629
Ibid., 12.
630
Infra, Chapter 6, Section 2, § 4.
631
A. CASSESE, International Criminal Law, Oxford, Oxford University Press, 2008, 8.

145
consented to it. The principle emerged against the background of colonization to free people
from colonial domination by foreign States. While colonial empires historically were kept
together by repression, it is not necessarily that the impeding of the right of self-determination
is done through excessive violence or conduct that amounts to the level of international
crimes.632 Individual criminal responsibility for the impeding of self-determination would
lead to the whole governmental apparatus to be held criminally accountable, even for acts
performed in the ordinary exercise of government, which would be excessive. On the other
hand, the right to self-determination is adequately protected if States cannot validly create
legal title over a people that has not accepted a State as their own. By the invalidity of any
such agreement the government over such people by any other than the one they have chosen
will be illegal and illegitimate and not be recognized at the international level. Hence, in the
case of self-determination, the right might be adequately protected by only bestowing it with
jus cogens status and not providing for international criminal responsibility.

SECTION.4. THE ABSOLUTE CHARACTER OF A NORM

160. The absolute character of a norm refers to its non-derogable character.633 States have at
all times to respect the norm – as they have to respect other norms of international law – but
cannot opt out of the norm by adopting derogatory acts. The absolute character of the norm
does not refer to the scope of the norm, in the sense that the norm should not have any
exceptions. A peremptory norm can be complex, clearly circumscribed in scope and
containing exceptions. Since above it has been established that the impermissibility of
derogation is an essential component of the rule of recognition in Article 53 Vienna
Convention on the Law of Treaties, the thesis will not reopen the discussion on non-
derogation. However, the question remains whether or how the non-derogable or absolute
character of a norm can be ascertained and whether proof of non-derogability is sufficient to
conclude that an absolute norm belongs to jus cogens.

161. It can be argued that in the field of human rights law, human rights which cannot be
derogated from in times of emergency are superior to other human rights. From this, one
could conclude that these non-derogable human rights are considered to be more important
and therefore non-derogation in the field of human rights law indicates that non-derogable
rights belong to jus cogens.634 However, this reasoning is not entirely satisfying. Non-
derogation in the field of human rights law is completely different from non-derogation in the
field of jus cogens. Within human rights law non-derogability entails that certain human
rights cannot be suspended in times of public emergency that threatens the life of the

632
Unless the violation of the right to self-determination occurs through systematic racial discrimination
amounting to persecution or apartheid: Article I International Convention on the Suppression and Punishment of
the Crime of Apartheid (1974); Article 7 (1) (h) and (j) Rome Statute of the International Criminal Court
(1998).
633
E.M. KORNICKER UHLMANN, “State Community Interest, Jus Cogens and Protection of the Global
Environment: Developing Criteria for Peremptory Norms”, Georgetown International Environmental Law
Review 1998, 110; M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire Français de Droit International
1966, 21.
634
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, § 144.

146
nation.635 Non-derogation in relation to jus cogens means that it is legally impermissible
under the sanction of nullity to create particular norms going against the norm of general
international law. Therefore, the non-derogable character of some human rights, namely the
fact that they cannot be suspended in times of public emergency, does not entail that States
cannot validly establish norms which would go against the protection offered by human rights
conventions. In this respect, the statement of the Human Rights Committee that the non-
derogable rights listed in Article 4 are related to the concept of peremptory norms636 is
premature since both conceptions of non-derogation are significantly different. Although there
is some truth in the argument that if States cannot derogate from certain rights in emergency
situations because of their importance, it is very unlikely that they would be allowed to
conclude treaties going against these rights. Nonetheless, such treaties could be considered a
violation of the human rights convention, but would not necessarily entail the nullity of that
treaty. Moreover, the dichotomy between derogable and non-derogable human rights is not
that clear-cut as to establish that non-derogable human rights are part of jus cogens and
derogable human rights are not. First, human rights can only be derogated in times of public
emergency which threatens the life of the nation, which is a very strict condition. In
particular, a public emergency presupposes the existence of “an exceptional situation of crisis
or emergency which affects the whole population and constitutes a threat to the organized life
of the community of which the State is composed”.637 An armed conflict is the key example
of what constitutes a public emergency which threatens the life of a nation, but even this
exceptional circumstance is not necessarily considered to be such a situation.638 The European
Commission on Human Rights specified the definition further: a public emergency must be
actual or imminent, the effect of the public emergency must involve the whole nation, the
continuance of the organized life of the community must be threatened, and the dangers must
be such that normal measures do not suffice to remedy the situation.639 Preparatory documents

635
Article 4 International Covenant on Civil and Political Rights (1966); Article 27 American Convention on
Human Rights (1969); Article 4 Arab Charter on Human Rights (2004); Article 15 European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950). The African Charter on Human and Peoples’
Rights (1981) does not contain a specific derogation clause, but under the Charter most rights can be limited
and individuals also have duties (Articles 27-29) entailing that many human rights can be derogated from in the
same way as under other human rights conventions.
636
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 11; see also: Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber,
Judgment, 10 December 1998, § 144.
637
European Court on Human Rights, Lawless v. Ireland (No. 3), Application No. 332/57, Merits, Judgment, 1
July 1961, Series A, No. 3, § 28.
638
T. RUYS and S. VERHOEVEN, “DRC v. Uganda: The Applicability of International Humanitarian Law and
Human Rights Law in Occupied Territories”, in R. ARNOLD and N. QUÉNIVET (eds.), International
Humanitarian Law and Human Rights Law, Towards a New Merger in International Law, Leiden, Nijhoff,
2008, 182; H. MONTEALEGRE, “The Compatibility of a State Party’s Derogation under Human Rights
Conventions with its Obligations under Protocol II and Common Article 3”, American University Law Review
1983-1984, 43.
639
European Commission on Human Rights, Greek Case, Application Nos. 3321/67, 3322/67, 3323/67,
3324/67, Report of 5 November 1969, Yearbook European Convention on Human Rights 1969, 72; the
condition that a public emergency needs to affect the whole nation seems to have been discarded by the
European Court in Ireland v. The United Kingdom, Application No. 5310/77, Merits and Just Satisfaction,
Judgment, 18 January 1979, Series A, No. 25, § 205, in which the Court examined a derogation limited to
Northern Ireland, but this is likely due to the agreement of Ireland that there was a state of emergency: T. RUYS
and S. VERHOEVEN, “DRC v. Uganda: The Applicability of International Humanitarian Law and Human Rights

147
of the Human Rights Commission also indicate that derogation because of public emergency
requires a threat to the nation as a whole, and not to a part thereof,640 which was later
confirmed by General Comment No. 29.641 Second, although States have a margin of
discretion,642 derogation is only possible to the extent that it is required by the exigencies of
the situation: the measures taken should be proportionate to the danger facing the State, both
in terms of scope and duration, and necessary.643 Consequently, if the same result could be
obtained by employing less restrictive measures, Article 4 International Covenant on Civil
and Political Rights will be violated. In this respect, the European Court on Human Rights
made it clear that derogation measures may and should be adjusted when the situation
improves.644 Moreover, Article 4 International Covenant on Civil and Political Rights stresses
that derogation measures may not be discriminatory, or inconsistent with States’ other
obligations under international law. Lastly, States wishing to derogate have to issue a
notification. Article 4 requires States to immediately inform the other State Parties of the
provisions from which they plan to derogate as well as to provide adequate reasons. Although
the Human Rights Committee has stated that a State’s failure to comply with the notification
requirement does not deprive it of its substantive rights of derogation while considering an
individual complaint and has considered the possibility of derogation in the absence of a
State’s reliance on it,645 the International Court of Justice implicitly seems not to accept the
argument of derogation if the procedural hurdles of Article 4 International Covenant on Civil
and Political Rights are not fulfilled, or in any event to limit the derogation to the provisions
specifically derogated from.646 As a result, due to these strict requirements, it will in reality
not always be allowed to derogate substantially from some human rights so that the core of
the derogable rights remains applicable. Another argument against a strict separation between
derogable and non-derogable rights is that some important human rights conventions, such as
the International Convention against the Elimination of All Forms of Racial Discrimination
and the Convention of the Rights of the Child, do not contain derogation clauses, although

Law in Occupied Territories”, in R. ARNOLD and N. QUÉNIVET (eds.), International Humanitarian Law and
Human Rights Law, Towards a New Merger in International Law, Leiden, Nijhoff, 2008, 183.
640
J. QUIGLEY, “The Relation between Human Rights Law and the Law of Belligerent Occupation: Does an
Occupied Population have a Right to Freedom of Assembly and Expression?”, Boston College International
and Comparative Law Review 1989, 26; M.J. BOSSUYT and J.P. HUMPHREY, Guide to the “Travaux
Préparatoires” of the International Covenant on Civil and Political Rights, Dordrecht, Nijhoff, 1987, 86; see
also: J.F. HARTMAN, “Derogation from Human Rights Treaties in Public Emergencies”, Harvard International
Law Journal 1981, 16; M. NOWAK, UN Covenant on Civil and Political Rights: CCPR Commentary, Kehl am
Rein, Engel, 1993, 78-79.
641
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 3.
642
European Court on Human Rights, Ireland v. The United Kingdom, Application No. 5310/77, Merits and
Just Satisfaction, Judgment, 18 January 1979, Series A, No. 25 § 220.
643
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 4 and § 6.
644
European Court of Human Rights, Ireland v. The United Kingdom, Application No. 5310/77, Merits and Just
Satisfaction, Judgment, 18 January 1979, Series A, No. 25, §. 220.
645
M.J. DENNIS, “Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and
Military Occupation”, American Journal of International Law 2005, 135.
646
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Rep. 2004, § 127.

148
they do list fundamental human rights.647 Furthermore, in human rights conventions which
contain derogation clauses not all non-derogable human rights can be considered to be
fundamental since there existed two main reasons to grant the status of non-derogability,
namely because of the fundamental character of certain rights and because of the absence of
reasonable basis to limit certain rights in situations of public emergency.648 Lastly, some
rights which are not listed as non-derogatory cannot impliedly be derogated from. This is
especially the case for Article 10 (right to humane treatment of persons deprived of their
liberty) and Articles 14 (right to fair trial) International Covenant on Civil and Political Rights
because they remain guaranteed during the gravest form of public emergency, an armed
conflict, by international humanitarian law.649 From the foregoing it is clear that the
distinction between derogable and non-derogable human rights is only partially helpful since
the non-derogable character of a human right is not necessarily proof of the jus cogens nature
of a human right. One would in the end need to look at the intrinsic value of the human right
in question, not to its non-derogable character in a public emergency. It is this fundamental
value of the human right which will determine its status of peremptory norm and
consequently, because a human right is considered fundamental, States will not be able to
derogate from it in public emergencies.

162. A treaty may determine that certain or the totality of its provisions may not be
derogated from. This undoubtedly establishes that the parties to the treaty consider the
provisions as the rules which have to regulate their relations at all times. Yet, it does not entail
that these norms are jus cogens: a norm does not become peremptory by the mere insertion of
a non-derogation clause in a treaty.650 If derogation would occur this will be considered as a
violation of the prohibition of derogation laid down in the treaty, but this does not necessarily

647
Concerning the International Convention on the Elimination of All Forms of Racial Discrimination (1965),
the prohibition of racial discrimination has been considered to be part of jus cogens: E. SCHWELB, “Some
Aspects of International Jus Cogens as Formulated by the International Law Commission”, American Journal
of International Law 1967, 956; Article 37 prohibits the death penalty for children, a prohibition the Inter-
American Commission on Human Rights has considered a regional norm of jus cogens and later an
international norm of jus cogens: Pinkerton and Roach v. United States of America, Resolution 3/87, Case No.
9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), §§ 54-55; Michael Domingues v. United States of America, Case
12.285, Report No. 62/02, Doc.5 rev.1 (2002), §§ 84-85.
648
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 11; I.D. SEIDERMAN, Hierarchy in International Law, The Human Rights
Dimension, Antwerp, Intersentia, 2001, 77.
649
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 13 (a) and §§ 16; see Common Article 3 Geneva Conventions (1949); Article 13,
Article 84 and Article 105 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949);
Article 37, Article 72 and Article 76 Geneva Convention (IV) Relative to the Protection of Civilian Persons in
Time of War (1949); Article 75 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (1977); Article 5 and Article 6 Protocol
(II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts (1977).
650
“Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the International Law Commission
1966, Vol. II, 248; Iraq, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of
Treaties, Official Records, Vol. I, 1969, § 23; Austria, 53rd Meeting of the Committee of the Whole, United
Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 45; A. LEONETTI, “Interprétation
des traités et règles impératives du droit international général (jus cogens), Österreichische Zeitschrift für
öffentliches Recht 1973, 99; J.A. BARBERIS, “La liberté de traiter des Etats et le jus cogens”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1970, 31.

149
impact the validity of the derogatory act which could be considered as lawful outside the
perspective of the convention. Only if the prohibition of derogation attaches the sanction of
nullity to a derogatory act, the prohibition of derogation might be indicative that the parties to
the treaty regard the protected norms as norms of jus cogens.651 To illustrate, the Four Geneva
Conventions prohibit the conclusion of derogatory agreements in Common Article 6/6/6/7
and they stipulate that protected persons cannot renounce the rights bestowed upon them in
Common Article 7/7/7/8. The special agreements are typically, but not necessarily established
during the hostilities, during which period the belligerents cannot denounce the Geneva
Conventions.652 Moreover, the sanction of a derogatory special agreement is probably the
nullity of the agreement.653 Thus, during hostilities, parties to the Geneva Conventions cannot
derogate from any provision of the Conventions. Since the four Geneva Conventions are
universally ratified, it could be argued that nearly all of its provisions are part of jus cogens
because all States have accepted that special derogatory agreements have no legal effect. Yet,
this conclusion is not correct: the norms established in the Geneva Conventions will only
belong to jus cogens if States are prohibited from concluding such agreements if they would
not have accepted the Geneva Conventions. The litmus test will be the following: would
States that have validly denounced the Geneva Conventions be able to validly conclude an
agreement going against the provisions of Geneva Conventions that are also customary
international law? Only if in this situation the answer is in the negative, the norms which are
derogated from would belong to jus cogens.

SECTION.5. CONCLUSION

163. The identification of peremptory norms seems to escape any generally proposed,
substantial criterion presented in doctrine. The examined criteria may hint or point to the
peremptory character of a norm, but in order to be certain in the end one has to ascertain the
general acceptance of the norm as belonging to jus cogens. This state of affairs renders the
identification of peremptory norms extremely cumbersome because of the examination of the
recognition or acceptance of a norm as peremptory by around two hundred States that might
have not even expressed themselves as to the peremptory character of the norm of general
international law. Nonetheless, the next chapter will inquire into how peremptory norms
emerge and are modified and how this emerging acceptance can be deduced from State
practice.

651
M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire Français de Droit International 1966, 17-18; L.
GROSSE, “Racines historiques et fondements contemporains des normes impértives (jus cogens) dans la théorie
et la pratique du droit international”, Revue de Droit International, de Sciences Diplomatiques et Politiques
1995, 236.
652
Article 63 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (1949); Article 62 Geneva Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 142 Geneva Convention
(III) Relative to the Treatment of Prisoners of War (1949); Article 158 Geneva Convention (IV) Relative to the
Protection of Civilian Persons in Time of War (1949); Article 99 (1) Protocol (I) Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(1977).
653
T. MERON, “The Humanization of Humanitarian Law”, American Journal of International Law 2000, 252; J.
QUIGLEY, “The Israel-PLO Agreements versus the Geneva Civilians Convention”, Palestine Yearbook of
International Law 1992-1994, 46.

150
CHAPTER.3. THE EMERGENCE AND MODIFICATION OF
NORMS OF JUS COGENS
SECTION.1. INTRODUCTION

164. In this chapter it will be examined how norms of jus cogens emerge, how they are
abrogated and how they are changed. This aspect of jus cogens has however not been as richly
debated as the concept itself. Furthermore, practice on how peremptory norms are modified is
very limited to non-existent.654 The only information is given by the second sentence of
Article 53 Vienna Convention on the Law of Treaties: a norm of jus cogens can only be
modified by another peremptory norm. Moreover, what is meant by modification is not
entirely clear. It is not certain whether modification only refers to a partial change of the norm
or whether it also includes the abrogation of the norm.

165. The key element in the emergence and the modification is the acceptance and
recognition of the international community of States as a whole that a certain norm of general
international law is part of jus cogens. A norm can only emerge as a peremptory norm if this
condition is fulfilled. Equally, a norm of jus cogens can only be modified by a norm which is
also part of jus cogens, and thus accepted and recognized by the international community of
States as a whole. It is furthermore the only decisive criterion to identify valid peremptory
norms. The chapter will thus focus on how this acceptance and recognition can be determined.
The requirement of “accept and recognize” is a hendiadys: it is sufficient to demonstrate one
of the two for a State to have subscribed to a norm of general international law as a
peremptory norm since recognition implies acceptance and vice versa.655 Recognition entails
express identification of a norm as part of jus cogens. In essence, it boils down to expressly
consenting to a norm, similar to the consent to a treaty, as belonging to jus cogens. However,
consent, while sufficient, is not a necessary requirement. States can also accept a norm of jus
cogens in a similar way as accepting a customary rule. Therefore, in absence of a specific
legal discourse on the emergence and modification of peremptory norms, I will analogously
apply the concept of opinio juris sive necessitatis to outline the emergence and modification
of peremptory norms, taking into consideration the peculiarities of jus cogens.

SECTION.2. THE EMERGENCE OF NORMS OF JUS COGENS

166. In order for a norm of jus cogens to emerge it has to fulfil the conditions set out in
Article 53 Vienna Convention on the Law of Treaties. Thus, any norm of general international
law can in theory become part of jus cogens if accepted or recognized as such. The most
simplest and unambiguous way of achieving this is to conclude a treaty containing all the
peremptory norms of the international community that subsequently needs to be ratified by

654
G.M. DANILENKO, “International Jus Cogens: Issues of Law-Making”, European Journal of International
Law 1991, 57 and f.
655
A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature, ses functions”, Recueil des Cours
1981-III, 105; See also the statement of Poland that recognition could be done in an express or implied manner,
by treaty or by custom. Since custom according to the Statute of the International Court of Justice merely
requires acceptance, implied recognition and acceptance could be considered the same: Poland, 19th Plenary
Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 69.

151
the overall majority of States in order for the norms contained therein to become jus cogens.
This possibility was expressly envisaged by the United Kingdom that proposed to add to the
Vienna Convention on the Law of Treaties protocols listing the peremptory norms.656
Nonetheless, forty years later it seems unlikely that such a convention despite its usefulness
would ever be drafted.
The treaty might contain already existing norms of general international law or new
norms that due to the ratification of the overall majority of States will at the same time
become part of general international law and jus cogens. As with conventions codifying
customary international law,657 the value of a clause claiming that the rules in a convention
are peremptory norms binds as such the States party to the convention and hence it only
reflects the viewpoint of these States concerning peremptory norms. Consequently, in order
for a norm in the treaty to be characterized as peremptory, it must not only have the approval
of the parties to the treaty but by nearly all States. As more States become party to the
convention, the evidence becomes more persuasive, but a lack of ratification will not
necessarily sound the deadknell for the norms contained therein as being jus cogens. The
reasons for non-ratification should be examined, for instance, the existence of a dispute
settlement procedure, opposition to some norms but not to others, etc.

167. A second more likely way for peremptory norms to emerge is through the emergence of
a generally shared opinio juris cogentis or the conviction that a certain norm belongs to the
category of jus cogens.658 Similar to opinio juris in customary international law, this opinio
juris cogentis can be regarded as the generally shared conviction or belief that a norm of
general international law does not permit derogation, i.e. the critically reflective attitude that a
certain norm is part of jus cogens. Nonetheless, it has to be stressed that there is a
fundamental difference between opinio juris in the field of customary international law and

656
United Kingdom, 53th Meeting of the Committee of the Whole, United Nations Conference on the Law of
Treaties, Official Records, Vol. I, 1969, § 60;
657
R.R. BAXTER, “Treaties and Custom”, Recueil des Cours 1970-I, 43; M.H. MENDELSON, “The Formation of
Customary International Law”, Recueil des Cours 1998-II, 298-299; A.M. WEISBURD, “Customary International
Law: The Problem of Treaties”, Vanderbilt Journal of Transnational Law 1988, 23.
658
R. KOLB, “Observation sur l’évolution du concept de jus cogens” Revue Générale de Droit Internationale
Public 2009, 844; C. DE VISSCHER, “Positivisme et ‘jus cogens’”, Revue Générale de Droit International
Public 1971, 9; P. DE VISSCHER, “Cours général de droit international public”, Recueil des Cours 1972-II, 107;
R. AGO, “Droit des traités et Convention de Vienne”, Recueil des Cours 1971-III, 323; F. CAPOTORTI,
“L’extinction et la suspension des traits”, Recueil des Cours 1971-III, 522; M. BYERS, “Conceptualizing the
Relationship between Jus Cogens and Erga Omnes Rules”, Nordic Journal of International Law 1997, 221; K.
KAWASAKI, “A Brief Note on the Legal Effects of Jus Cogens in International Law”, Hitotsubashi Journal of
Law and Politics 2006, 30; the concept of double consent is also used : A. GÓMEZ ROBLEDO, “Le ius cogens
international: Sa genèse, sa nature, ses functions”, Recueil des Cours 1981-III, 105; G.I. TUNKIN, “International
Law in the International System”, Recueil des Cours 1975-IV, 92-93 ; C.L. ROZAKIS, The Concept of Jus
Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 74 ; L. HANNIKAINEN, Peremptory Norms
(Jus Cogens) in International Law: Historical Development, Criteria, Present Status, Helsinki, Lakimiesliiton
Kustannus, 1988, 12; U. LINDERFALK, “The Creation of Jus Cogens – Making Sense of Article 53 of the Vienna
Convention”, Zeitschrift für öffentliches Recht und Völkerrecht 2011, 373; SEIDERMAN equates opinio juris
cogentis with double consent: I.D. SEIDERMAN, Hierarchy in International Law, The Human Rights Dimension,
Antwerp, Intersentia, 2001, 45 ; similarly, VAN HOOF uses the term opinio juris cogentis, but according to him
all sources of international law are based on consent, so that opinio juris cogentis and double consent are
equated : G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation,
1989, 164.

152
opinio juris cogentis. While opinio juris is a constitutive element for a rule of customary
international law to be created, to be a norm of international law instead of a mere usage, an
opinio juris cogentis as such does not establish a norm, it only identifies that a certain norm of
general international law, be it a conventional or customary rule, has a special characteristic,
namely that no derogation is permitted. It does not make the norm binding or more binding
under international, since the norm is already part of international law and thus binding. In
this respect there is no difference between ordinary norms of international law and
peremptory norms since they oblige the subjects of international law to the same extent;
peremptory norms only limit the way in which international actors with legislative authority
can deviate from the peremptory norm.

168. The opinio juris cogentis needs not to be established State by State; instead, one has to
demonstrate that the generality of States has a shared conviction that a particular norm has a
peremptory character, a communis opinio juris cogentis. It is as such not relevant what is
behind the shared belief: States may have this shared belief because of commonly shared
moral values: States may believe that slavery is morally wrong, that it therefore should be
prohibited by international law and that moreover the legislative capacity of international
actors should be curtailed because of the importance of the prohibition of slavery. However,
there might be other reasons than moral ones why States share the conviction that a norm
should not allow for derogation, for instance, that if one could derogate from the norm the
international legal order risks to fall apart. What in the end matters is that this generally
shared belief that an existing norm of international law permits of no derogation is present.
Similar to custom, the opinio juris cogentis may also result from an erroneous belief that the
norm belongs to jus cogens, whereas in reality it is not (yet). Though most of the following
examples deal with the application of existing peremptory norms and not the emergence of a
new peremptory norm, there is no guarantee that all instances of practice are not based on an
erroneous assessment that the norm is part of jus cogens. It is not because a State through one
of its organs claims that a norm is peremptory, that it already is. Nevertheless, it thereby
expresses its opinio juris cogentis. If one can through applications of a supposedly
peremptory norm finds a communis opinio juris cogentis, the existence of a norm of jus
cogens is established, entailing that it has at a certain point in time been created.

169. The communis opinio juris cogentis can be demonstrated in the same way as an opinio
juris, either by State practice reflecting this communis opinio juris cogentis or by individual
instances of State practice that together confirm the existence of the communis opinio juris
cogentis. An example of the first instance is the adoption by the overall majority of States of a
General Assembly resolution in which they list certain norms as peremptory. Of course, the
resolution as such is not binding, it merely provides prove of the existence of a communis
opinio juris cogentis, which might be contradicted by other evidence. In any event, one has to
be careful taking into consideration General Assembly resolutions. Firstly, in general one has
to look that the wording of the General Assembly are not merely hortatory.659 Second, the
votes in favour of the General Assembly resolution and the reasons for the votes in favour
have to be considered. As stated before in the framework of customary international law, the
inquiry should not stop at the voting on the resolution in toto, but also look at the voting
paragraph by paragraph, at statements made by States concerning the resolution, and other

659
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 70 and f.

153
factors.660 Very sensitive are abstentions: do these abstentions constitute acceptance or not
and what are the reasons for abstentions? It might be that a State abstains because of political
reasons, but accept the qualification of a norm as peremptory. It might also be that they
abstain precisely because of this qualification. A good example of this problem is United
Nations General Assembly Resolution 2949 (XXVII) in which the General Assembly adopted
that the changes made by Israel in the occupied Arab territories in contravention with the
Geneva Conventions are null and void.661 Since, as will be demonstrated below, certain
unilateral acts which aim at creating legal consequences, could derogate from a peremptory
norm, it might be argued that the General Assembly regarded the changes in contravention
with peremptory norms laid down in the Geneva Conventions and therefore null and void.662
Could it then be argued that the resolution proves that the relevant provisions of the Geneva
Conventions as jus cogens? Since the resolution was adopted by eighty-seven votes in favour,
seven against, with thirty-one abstentions, the resolution as such is not sufficient evidence of
the acceptance by the international community of States as a whole.663 Hence, one should
look at elements surrounding the adoption of the resolution to discover the reasons for
abstention and votes against the resolution.664

170. States can also individually express their opinio juris cogentis in statements, for
instance before the International Court of Justice. In the Military and Paramilitary Activities
in and against Nicaragua, the United States and Nicaragua accepted that the prohibition of
the use of force was jus cogens.665 Similarly, the Belgian government argued before the Court
that the right to life, physical integrity and the prohibition of torture belong to jus cogens
norms.666 The Democratic Republic of the Congo has held that jus cogens norms are
contained in human right treaties, because these treaties protect the fundamental rights of
every human being.667 Equally in advisory opinions procedures States have made statements
on the peremptory nature of certain norms.668 Other international fora are also possible:

660
M. AKEHURST, “Custom as a Source of International Law”, British Yearbook of International Law 1977, 6-7;
E. JIMÉNEZ DE ARÉCHAGA, “General Course in Public International Law”, Recueil des Cours 1978-I, 31; B.
SLOAN, “General Assembly Resolutions Revisited (Forty Years Later)”, British Yearbook of International Law
1988, 125-139.
661
UN General Assembly Resolution 2949 (XXVII), § 7.
662
But see: J. SZTUCKI, Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical Appraisal,
Vienna, Springer, 1974, 27.
663
Of course, if jus cogens is involved, the votes in favour could count as acceptance of the relevant provisions
of the Geneva Conventions as part of jus cogens in the absence of other factors to the contrary.
664
For instance, China and Albania abstained but not because they opposed operative paragraph 7 of UN
General Assembly Resolution 2949 (XXVII): General Assembly, 27th Session, Plenary Meetings, 2105th
Meeting, 8 December 1972, General Assembly Official Records 1972, UN Doc. A/PV.2105, § 82 and §§ 89-90.
665
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Memorial of Nicaragua, § 213, at http://www.icj-cij.org/docket/files/70/9619.pdf; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Counter Memorial of the United States, § 314, at http://www.icj-cij.org/docket/files/70/9627.pdf.
666
Legality of the Use of Force (Yugoslavia v. Belgium), Request for the Indication of Provisional Measures,
CR 99/15, 10 May 1999,16, at http://www.icj-cij.org/docket/files/105/4513.pdf.
667
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v.
Rwanda), Requête introductive d’instance à la Cour international de Justice de la Haye contre République du
Rwanda, 27-28, at http://www.icj-cij.org/docket/files/126/7070.pdf.
668
See for instance: Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Ireland (17 April 2009), § 22

154
Cyprus argued in front of the Security Council that the Treaty of Guarantee of 1960 between
it and the United Kingdom, Greece and Turkey allowing for unilateral intervention in the
internal affairs of Cyprus, was contrary to jus cogens.669 Of course, States also indicated
which norms they considered to be part of jus cogens during the drafting of the Vienna
Convention on the Law of Treaties.670 Also, during the United Nations Convention on the
Law of the Sea, representatives of developing countries argued that the sea-bed as common
heritage of mankind was jus cogens.671 Moreover, States can equally demonstrate at the
national level their acceptance of particular norms as belonging to jus cogens. States may
adopt legislation in which they regard or will regard certain norms as jus cogens. For instance,
the Swiss Federal Constitution of 1999 declares in its Article 139 Volksinitiative going
against peremptory norms invalid.672 This was a result of a governmental reaction against a
Volksinitiative in 1994 aiming at the expulsion of illegal immigrants without the possibility to
appeal. Because this would violate in the eyes of the Bundesrat the peremptory prohibition of
non-refoulement, the Bundesrat demanded the Bundesversammlung to declare the
Volksinitiative invalid, which was followed by the Bundesversammlung. In 1999 the Swiss
Federal Constitution was amended as to limit the right for Volksinitiative to change the

(prohibition of the use of force), at http://www.icj-cij.org/docket/files/141/15662.pdf; Id., Written Statement of

Iran (17 April 2009), § 2.1 (principle of territorial integrity), at http://www.icj-
cij.org/docket/files/141/15646.pdf; Id., Written Statement of The Netherlands (17 April 2009), § 3.2 and 3.9
(right to self-determination), at http://www.icj-cij.org/docket/files/141/15632.pdf; Id., Written Statement of
Poland (14 April 2009), § 6.13 (fundamental human rights and the right to self-determination), at
http://www.icj-cij.org/docket/files/141/15632.pdf; Id., Written Statement of the Russian Federation (16 April
2009), § 78 (principle of territorial integrity), at http://www.icj-cij.org/docket/files/141/15628.pdf; Id., Written
Statement of Serbia (17 April 2009), §§ 496-497 (prohibition of the use of force), at http://www.icj-
cij.org/docket/files/141/15642.pdf; Id., Written Statement of Spain (April 2009), § 25 (sovereignty and
territorial integrity as non-derogable basic principles), at http://www.icj-cij.org/docket/files/141/15644.pdf; Id.,
Written Statement of Switzerland (15 April 2009), § 29 (prohibition of genocide), at http://www.icj-
cij.org/docket/files/141/15614.pdf; Id., Oral Statement of Vietnam, CR 2009/33, 11 December 2009, 17
(sovereign equality and territorial integrity), at http://www.icj-cij.org/docket/files/141/15736.pdf; Id., Oral
Statement of Jordan, CR 2009/31, 9 December 2009, 33, 35 (right to self-determination, genocide), 38 (use of
force, apartheid, racial discrimination), at http://www.icj-cij.org/docket/files/141/15728.pdf; Id., Oral Statement
of the United States of America, CR 2009/30, 8 December 2009, 30 (use of force and apartheid), at
http://www.icj-cij.org/docket/files/141/15726.pdf; Id., Oral Statement of the Russian Federation, CR 2009/30, 8
December 2009, 46 and 47 (sovereignty and territorial integrity), at http://www.icj-
cij.org/docket/files/141/15726.pdf; Id., Oral Statement of Azerbaijan, CR/2009/27, 3 December 2009, 18 (use
of force, racial discrimination and apartheid), at http://www.icj-cij.org/docket/files/141/15716.pdf; Id., Oral
Statement of Albania, CR 2009/26, 2 December 2009, 13 (apartheid), at http://www.icj-
cij.org/docket/files/141/15714.pdf.
669
UN Doc. S/PV. 1098. The Security Council did however not address the issue: it merely stated in the
preamble of Resolution 186 (1964) that it had considered the position of the parties to the treaty and had in
mind the the relevant provisions of the Charter of the United Nations, in particular Article 2 (4). The Treaty of
Guarantee is still in force: Treaty of Nicosia (1960), United Nations Treaty Series No. 5475.
670
For an overview see: J. SZTUCKI, Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical
Appraisal, Vienna, Springer, 1974, 119-120; G.D. HAIMBAUGH, Jr., “Jus Cogens: Root & Branch (An
Inventory)”, Touro Law Review 1986-1987, 212-213 and 216.
671
See: G.M. DANILENKO, “International Jus Cogens: Issues of Law-Making”, European Journal of
International Law 1991, 58-59.
672
Article 139 and 193-194 Bundesverfassung der Schweizerischen Eidgenossenschaft (1999), at
http://www.admin.ch/ch/d/sr/101/index.html.

155
constitution, if that change would violate a norm of jus cogens.673 As a result, a
Volksinitiative which is declared invalid, will demonstrate the acceptance of a particular norm
as belonging to jus cogens. In addition, the Swiss Conseil fédéral has declared that the
prohibition of crimes against humanity is peremptory.674 Moreover, not only national
legislation, but equally decisions of national tribunals and courts may indicate which norms a
State accepts as peremptory. Increasingly, national courts have invoked the concept of jus
cogens to circumvent immunities. Whether jus cogens norms may be utilized in this way
should not concern us here, what does matter is which norms the courts consider to be part of
jus cogens in order to circumvent – rightly or erroneously – immunities. In Ferrini c.
Repubblica federale di Germania the Italian Corte suprema di Cassazione decided that
Germany could not claim State immunity in a civil suit for the illegal deportation by German
military forces in the Second World War and forced labour of an Italian civilian due to the jus
cogens nature of the prohibition of deportation and forced labour.675 It later confirmed its
decision in Republicca federale di Germania c. Mantelli et al.676 Similarly, the Greek Areios
Pagos found in Prefecture of Voiotia v. the Federal Republic of Germany that Germany did
not enjoy immunity in a civil suit requesting reparations for violations of the laws of war
committed during the Second World War because the violated norms were peremptory.677 On

673
E. DE WET, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for
National and Customary Law”, European Journal of International Law 2004, 101-102.
674
Conseil fédéral, Message relative au Statut de Court pénale internationale, à la loi fédérale sur la coopération
avec la Cour pénale internationale ainsi qu’à une révision du droit pénal, 15 November 2000, 470, at
http://www.admin.ch/ch/f/ff/2001/359.pdf.
675
Ferrini c. Repubblica federale di Germania, sezione unite n. 5044/04, depositata l’11.03.2004, Diritto e
Giustizia del 16.03.2004, § 9.1, at http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-
sentenza_corte_di_cassazione-11_03_05_001.doc. For comments, see: A. BIANCHI, “Case Note: Ferrini v.
Federal Republic of Germany”, American Journal of International Law 2005, 242; A. GATTINI, “War Crimes
and State Immunity in the Ferrini Decision”, Journal of International Criminal Law 2005, 224; H. FOX, “State
Immunity and the International Crime of Torture”, European Human Rights Law Review 2006, 142. Germany
has subsequently brought the case before the International Court of Justice: Jurisdictional Immunities of the
State (Federal Republic of Germany v. Italy), Press release, 23 December 2008, at http://www.icj-
cij.org/docket/files/143/14925.pdf.
676
C. FOCARELLI, “Federal Republic of Germany v. Giovanni Mantelli and Others: Italian Court of Cassation
Opinion on Foreign Sovereign Immunity in Cases of Civil Liability for International Crimes”, American
Journal of International Law 2009, 123.
677
Areios Pagos, The Federal Republic of Germany v. Prefecture of Voiotia, Case No. 11/2000, 4 May 2000,
Nomiko Vima 2000, 212, stating that Article 46 Hague Regulations annex to the Convention (IV) Respecting the
Laws and Customs of War on Land (1907), protecting family honour and rights, the lives of person and private
property during belligerent occupation, is jus cogens. Thereby it confirmed Court of First Instance of Leivadia,
Prefecture of Voiotia v. the Federal Republic of Germany, Case No. 137/1997, 30 October 1997, Revue
Hellénique de Droit International 1997, 595; for case summaries and discussion: I. BANTEKAS, “Case Report:
Prefecture of Voiotia v. the Federal Republic of Germany, Case No. 137/1997, Court of First Instance of
Leivadia, October 30, 1997”, American Journal of International Law 1998, 765; B. OXMAN, M. GAVOUNELI
and I. BANTEKAS, “Prefecture of Voiotia v. the Federal Republic of Germany, Case No. 11/2000, Areios Pagos,
May 4, 2000”, American Journal of International Law 2001, 198; E. VOURNAS, “Prefecture of Voiotia v. the
Federal Republic of Germany: Sovereign Immunity and the Exception for Jus Cogens Violations”, New York
Law School Journal of International and Comparative Law 2002, 629. In a later case concerning war
reparations, the Areios Pagos referred the case to the Anotato Eidiko Dikastirio (the Special Supreme Court)
which ruled that Germany can enjoy state immunity before Greek courts: Anotato Eidiko Dikastirio, Federal
Republic of Germany v. Miltiadis Margellos, Case No. 6/17-9-2002, 17 September 2002, discussed in M.
PANEZI, “Sovereign Immunity and Violation of Ius Cogens Norms, AED 6/2002”, Revue Hellénique de Droit
International 2003, 199.

156
the other hand, in Bouzari v. Islamic Republic of Iran State immunity was granted: the
Ontario Court of Appeal confirmed that the prohibition of torture was a peremptory norm, but
it considered that this was not an allowed exception under the Canadian State Immunity Act
of 1985.678 Also, in Ron Jones v. Saudi Arabi, later upheld by the House of Lords,679 the
Court of Appeals of the United Kingdom upheld the immunity of Saudi Arabia, despite its
acknowledgement that the prohibition of torture is a peremptory norm.680 In Siderman de
Blake et al. v. Republic of Argentina the Ninth Circuit Court did grant immunity, but
recognized the prohibition of torture as a peremptory norm.681 In the case of the Mothers of
Srebrenica, the Dutch court recognized that genocide and torture are peremptory norms.682
Outside the issue of immunity, the prohibition of torture as a norm of jus cogens was
recognized by the Canadian Supreme Court in Suresh v. Minister of Citizenship and
Immigration,683 in the Pinochet case,684 and in A (FC) and Others (FC) v. Secretary of State
for the Home Department.685 The Hungarian Constitutional Court has held that war crimes,
crimes against humanity and the rules concerning the prosecution of these crimes are part of
jus cogens.686 The Swiss Tribunal fédéral held that the right to life, the prohibition of torture
and inhumane treatment, the prohibition of slavery and the slave trade, the prohibition of
collective punishments, the principle of individual criminal responsibility and the prohibition
of refoulement are part of jus cogens.687 The United States Court of Appeals in Xuncax v.
Gramajo recognized the prohibition of summary execution, forced disappearance, torture and
arbitrary detention as peremptory norms.688 In Committee of United States Citizens Living in
Nicaragua v. Reagan the Court of Appeals recognized as peremptory the prohibition of the
use of force and fundamental human rights law, namely genocide, slavery, murder, torture,
prolonged arbitrary detention, and racial discrimination.689 In addition, the United States
Court of Appeals qualified the prohibition of forced labour as jus cogens690 and considered
the prohibition of racial discrimination as belonging to jus cogens.691

678
Court of Appeal for Ontario, Bouzari v. Islamic Republic of Iran, 30 June 2004, 124 International Law
Reports 2002, 427.
679
House of Lords, Ron Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, Judgment of 14 June
2006, [2006] UKHL 26.
680
Court of Appeals (Civil Division), Ron Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya (the
Kingdom of Saudi Arabia), 28 October 2004, 2004 EWCA Civ. 1394.
681
Siderman de Blake et al. v. Republic of Argentina, 965 F.2d 714 (9th Cir. 1992); Princz v. Federal Republic
of Germany, 26 F.3d 1173-1174 (D.C. Cir. 1994).
682
Rechtbank 's-Gravenhage, Mothers of Srebrenica, LJN: BD6795, 295247/HA ZA 07-2973, Vonnis in de
incidenten, 10 July 2008, § 5.20, at zoeken.rechtspraak.nl; confirmed on appeal: Gerechtshof 's-Gravenhage,
LJN: BL8979, 200.022.151/01, 30 March 2010, at zoeken.rechtspraak.nl.
683
Suresh v. Canada (Minister of Citizenship and Immigration), 2002 1 S.C.R. 3, §§ 62-64.
684
House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others - Ex Parte
Pinochet, 38 International Legal Materials 1999, 589 (Lord Browne Wilkinson), 626 (Lord Hope of
Craighead), 637 (Lord Hutton) and 649-650 (Lord Millet).
685
A (FC) and Others (FC) v. Secretary of State for the Home Department, [2005] UKHL 71, § 33.
686
Decision of the Constitutional Court No. 53/1993, (X.13) AB, 13 October 1993, Magyar Közlöny 1993, No.
147, V.1 (unofficial translation at www.icrc.org/ihl-nat).
687
Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November 2007, § 7.3, at http://www.bger.ch.
688
Xuncax v. Gramajo, 886 F.Supp 184 (D. Mass. 1995).
689
Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 941 (D.C. Cir. 1988).
690
Doe I v. Unocal Corp. , 395 F.3d 945 (9th Cir. 2002).
691
Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, 221 F. Supp. 2d 1152 (9th Cir. 2007).

157
171. In conclusion, the acceptance of a norm as belonging to jus cogens and thus its
emergence can be deduced from concrete instances of State practice, similar to the discovery
of opinio juris in custom. As with customary norms it might be hard to determine exactly
when the shared conviction is wide enough, but this is unavoidable in a decentralized norm-
creating system. Nevertheless, it has been demonstrated that instances of practice reflecting an
opinio juris cogentis can be found, that taken together might provide conclusive proof of the
emergence of a peremptory norm.

SECTION.3. CHANGES IN EXISTING PEREMPTORY NORMS

§1. The abrogation of an existing norm of jus cogens

172. The most profound change any norm can face is its complete removal from existing
law, or its abrogation. The possibility of abrogation is not expressly provided for in Article 53
Vienna Convention on the Law of Treaties that merely states that peremptory norms can only
be modified by other peremptory norms. Whether the modification of a peremptory norm only
refers to partial changes or also includes the abrogation of the norm is not clear. NICOLOUDIS
asserts that the Vienna Convention excludes this possibility.692 However, the drafters of the
Vienna Convention did recognize that norms of jus cogens were not immutable and could be
changed by a multilateral treaty.693 If such norms are not immutable, there is no logical
impediment to the abrogation of such norms and modification can imply abrogation.694 Yet, if
this is the case in accordance with the wording of Article 53 the abrogation can only be
effected by another peremptory norm that is wholly inconsistent with a previous peremptory
norm. Another manner in which a peremptory norm may be abrogated is through loss of its
essential element, the acceptance and recognition of the international community of States as
a whole. The issue is whether this is practically possible giving the effect of peremptory
norms, the invalidity of derogatory acts.

173. Concerning the first situation – the abrogation of a peremptory norm by an inconsistent
peremptory norm – abrogation of a peremptory norm in this manner is faced with the
chronological paradox similar to the one encountered in custom. There the chronological
paradox addressed the matter how the concept of opinio juris sive necessitatis as traditionally
understood could be applied to changes in customary norms. Opinio juris sive necessitatis
was traditionally defined as the belief that certain conduct is rendered obligatory by an
existing norm of customary international law. However, if a customary norm is created,
changed or removed by another customary norm, this would imply that States should have the
conviction that the inconsistent practice results from an already existing norm of customary
international law, whereas this is not the case since States intend to create a new custom or
change or abrogate an existing custom.695 Similarly, the chronological paradox is present

692
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain de droit international public,
Athens, Papazissis, 1974, 39.
693
“Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the International Law Commission
1966, Vol. II, 248.
694
See: M. RAGAZZI, The Concept of International Obligations Erga Omnes, Oxford, Clarendon, 1997, 59; C.L.
ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 88-89.
695
Supra, Nos. 69 et seq.

158
here: in order to abrogate an existing peremptory norm, this should be done by a norm of
general international law that is also accepted as being peremptory, but this is precisely
impossible due to the impermissibility of derogation of a peremptory norm. Every instance of
derogation in which an attempt to create an inconsistent peremptory norm is made is void ab
initio and thus no inconsistent peremptory norm can arise.696 In the field of customary
international law the chronological paradox can be solved because inconsistent practice can
still in the end lead to the creation of a new customary norm.697 However, the chronological
paradox appears to be unsolvable for abrogation by inconsistent peremptory norms, precisely
because of the invalidity of derogations.698 Concretely, every derogatory treaty stipulating an
inconsistent alleged peremptory norm will be void pursuant to Article 53. Although it can be
argued that a treaty that is concluded and collectively ratified might abrogate a peremptory
norm,699 Article 53 is unequivocal and States that a treaty is already void at the moment of its
conclusion.700 Thus, even collective ratification cannot render an already invalid treaty valid.
Though, the possibility of modification by a multilateral provision was expressly stipulated at
a certain point in time in the codification process,701 this does not appear in the text of Article
53.702 Consequently, the only manner in which an abrogation by an inconsistent peremptory
norm seems to be likely is by the emergence of a general customary norm that is bestowed
with a peremptory status. However, every instance of State practice inconsistent with the
peremptory norm will constitute a derogation and cannot lead to the creation of a general
inconsistent custom that subsequently becomes peremptory.

174. A second possible way in which a peremptory norm can be abrogated is by the loss of
acceptance of its peremptory status by the international community of States as a whole.703
After the norm has lost it ordinary status it becomes an ordinary norm of general international
law that can be derogated from and superseded by a new inconsistent peremptory norm.
Nevertheless, unlike customary norms a gradual loss of acceptance of the peremptory status is

696
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 89-90;
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 266-267; G.M. DANILENKO, Law-Making in the
International Community, Dordrecht, Nijhoff, 1993, 250; W. CZÁPLINSKI and G. DANILENKO, “Conflicts of
Norms in International Law”, Netherlands Yearbook of International Law 1990, 11; V. PAUL, “The Legal
Consequences of Conflict between a Treaty and an Imperative Norms of General International Law (Jus
Cogens)”, österreichisches Zeitschrift für öffentliches Recht 1971, 43.
697
Supra, No. 71.
698
A similar conclusion is reached by ORAKHELASHVILI: A. ORAKHELASHVILI, Peremptory Norms in
International Law, Oxford, Oxford University Press, 2006, 129.
699
G.M. DANILENKO, Law-Making in the International Community, Dordrecht, Nijhoff, 1993, 251; V. PAUL,
“The Legal Consequences of Conflict between a Treaty and an Imperative Norms of General International Law
(Jus Cogens)”, österreichisches Zeitschrift für öffentliches Recht 1971, 42.
700
I.M. SINCLAIR, The Vienna Convention on the Law of Treaties, Manchester, Manchester University Press,
1984, 225-226.
701
Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the International Law
Commission 1963, Vol. II, 53; “Report of the International Law Commission Covering the Work of Its Fifteenth
Session”, Yearbook of the International Law Commission 1963, Vol. II, 199.
702
Draft Article 13 (4) explicitly provided in this possibility: Special Rapporteur WALDOCK, “Second Report on
the Law of Treaties”, Yearbook of the International Law Commission 1963, Vol. II, 52.
703
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 93-94;
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
167.

159
not possible because this would constitute a derogation from the norm. Hence, the withdrawal
of acceptance by one or some States will lead to the invalidity of that legal position, thus
affirming the peremptory nature of the norm. Nonetheless, an abrogation of a peremptory
norm by withdrawal of acceptance is possible if the withdrawal occurs in a collective
manner.704 Derogation concerns the performing of inconsistent acts from norms established
by a collectivity by a limited group of actors that are members of that collectivity.705 Thus, the
collective decision to repeal a norm does not constitute a derogation and would not be invalid.
The peremptory norm would lose its status if nearly all States would collectively revoke it, so
that it becomes an ordinary norm of general international law. It can then be replaced by the
ordinary processes of abrogation so that it loses its general character. Subsequently, a new
inconsistent peremptory norm can be established, terminating and voiding any remnants of
the old norm.706 While such an abrogation of a peremptory norm is in theory possible, it is
unlikely to occur in reality.

§2. The modification of peremptory norms

175. Article 53 provides that a peremptory norm can be modified by another peremptory
norm. In the foregoing section it has been demonstrated that an abrogation of a peremptory
norm by another peremptory norm is practically not possible: abrogation is only possible after
a collective revocation of the peremptory status of a norm and its replacement by a new norm
of general international law, that may or may not become in turn a peremptory norm. Yet, in
such situation the peremptory norm is not modified by another peremptory norm. Thus,
modification in the sense of Article 53 only refers to a partial change of a peremptory norm.
707

176. Two situations must be distinguished. The scope of a peremptory norm can be extended
or restricted. An extension of the peremptory norm is the least problematic since it involves
no derogatory acts; a limited group of States can amongst themselves agree to a broader
application of the peremptory norm or to expand its scope for instance in a treaty or by a
regional custom. For example, nothing would prevent a group of States to agree to abolish the
death penalty even if general international law recognizes the death penalty as an exception to
the right to life. If more States subscribe to the expanded version, it may become a norm of
general international law that subsequently is bestowed with peremptory status, changing the
more restricted peremptory norm.
The second possibility is the modification of a peremptory norm by restricting the scope
of the norm. Here the chronological paradox encountered when discussing the abrogation of a
peremptory norm emerges again. For, if the norm is restricted through derogatory acts such
acts are void, no peremptory norm modifying the old peremptory norm can arise and thus the

704
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 266.
705
Supra, No. 128.
706
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
166-167.
707
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 130;
G.J.H. VAN HOOF, Rethinking the Sources of International Law, Deventer, Kluwer Law and Taxation, 1983,
166.

160
condition of Article 53 Vienna Convention on the Law of Treaties cannot be fulfilled.
Nonetheless, it is theoretically possible that the international community of States collectively
decides to restrict the existing peremptory norm.708 The collective declaration should not
remove the peremptory nature of the complete norm, but declare an opinio non juris cogentis
for the part of the norm that the international community of States as a whole desires to
remove or restrict. The remainder of the norm can thus remain part of jus cogens, whereas the
restricting modalities have to become part of general international law through the custom or
treaty and subsequently become accepted as a peremptory norm, formalizing the restriction of
the peremptory norm.

SECTION.4. CONCLUSION

177. The emergence of a peremptory norm is rather similar to the creation of custom, though
the main difference between the creation of a custom and a peremptory norm is that the
former transforms facts into law, whereas the latter gives a special characteristic to an already
existing legal norm. Nevertheless, the mechanism behind the creation of custom and the
emergence of a peremptory norm is similar: what in both instances is needed is the existence
of a legal conviction or belief. Consent is a sufficient, but not a necessary requirement. The
general ratification of a treaty listing the alleged existing peremptory norms will constitute a
recognition by the international community of States that the norm is part of jus cogens, but
despite the usefulness of such a convention, it is not as such needed. It suffices that one can
demonstrate an opinio juris cogentis communis at a certain point in time that a customary
norm or a conventional norm binding upon the overall majority of States has received the
status of jus cogens. Similar as with opinio juris, to prove such an opinio juris cogentis, one
has to look at instances of State practice that reflect it, such as declarations, national
legislation and case law. This communis opinio juris cogentis must be present in the
international community of States as a whole in order to result in the acceptance of a norm as
being peremptory.

178. A norm of jus cogens is not necessarily adopted for eternity and is subject to change,
either by a complete revocation of the norm or by a modification, expanding or restricting the
peremptory norm. As has been demonstrated, the abrogation and restriction of an existing
peremptory norm is cumbersome, nearly practically impossible, due to the operation of jus
cogens and requires a collective decision by the international community of States as a whole.
The outcome is not surprising since peremptory norms protect the most fundamental values of
the international community. Removing or restricting an existing peremptory norm would
thus require acceptance by the same international community since each member will be
affected, and indicate a paradigm shift in or a systemic crisis of the international legal order.
From this perspective the relative ease with which a peremptory norm may be expanded
beyond the minimum agreement or acceptance of the international community, can easily be
explained. Such expansion by a small group of States does not treathen the core values of the
international community as a whole, but rather promotes them by extending them to situation
that are not yet covered by the peremptory norm. By a gradual expansion the extension of the

708
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 266.

161
peremptory norm can in turn become a norm of general international law and become
accepted as a modification of the previous peremptory norm. Thus, the concept of jus cogens
blocks on the one hand non-collective restrictions and abrogations, while at the same time
allows a non-collective expansion of the scope of the peremptory norm. Therefore, the
conclusion is that peremptory norms are relatively immutable if it concerns their abrogation
and restriction, but flexible if it concerns their expansion.

162
CHAPTER.4. THE LEGAL CONSEQUENCES OF NORMS OF JUS
COGENS

SECTION.1. INTRODUCTION

179. After having examined the definition of jus cogens, other criteria for identification and
the ways how such norms are created and modified, this chapter will address the
consequences attached to these norms in the law of treaties and beyond. However, in doctrine
the consequences attached to jus cogens have been continuously expanded, even if there is not
much support for these consequences in State practice. FOCARELLI has in this respect pointed
out that the idea of jus cogens may contain a significant number of possible consequences. He
agrees that one can deduce such a consequence from the concept of jus cogens, but he
criticizes the majority of scholarly opinion for adopting a deductive or semi-deductive
approach to the question of consequences of jus cogens. Hence, consequences are logically
deduced that find no support in State practice.709 FOCARELLI in return defends an inductive
approach that focuses on the consequences that are actually retained in State practice.710 In
this Chapter I will subscribe as much as possible to such an inductive approach, unless a
consequence is intrinsically linked to jus cogens, which is in line with the positivist approach
of the thesis. Therefore, although it has been argued that peremptory norms bar the invocation
of immunities of States in a foreign court because they are hierarchically higher,711 the thesis
will not inquire into this alleged consequence since State practice, in casu case law, is nearly
unanimous in upholding the immunity of a State before a foreign court in case of alleged
violations of peremptory norms.712 In addition, I will not look into the alleged consequences

709
C. FOCARELLI, “Immunité des Etats 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 jurisdictionelle des Etats étrangers”, Revue
Générale de Droit International Public 2008, 780 et seq; Id., “Promotional Jus Cogens: A Critical Appraisal of
Jus Cogens’ Legal Effects”, Nordic Journal of International Law 2008, 444 and f.
710
FOCARELLI concludes that if one follows a purely inductive approach jus cogens has no intrinsic
consequences because in the end one establishes that a consequence of jus cogens can be found in customary
international law and do not derive from the importance of the values it protects: Ibid., 786-789; Id.,
“Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects”, Nordic Journal of International
Law 2008, 450-455. According to him, jus cogens is only relevant for the promotion of new customary
international law, serving as the opinio necessitatis: Ibid., 790-791; Id., “Promotional Jus Cogens: A Critical
Appraisal of Jus Cogens’ Legal Effects”, Nordic Journal of International Law 2008, 455 et seq. KOLB however
rightly points out that this is not the case: the purpose and function of jus cogens is precisely that it protects a
general norm from being set aside through derogatory acts; jus cogens is a special reason to invalidate such acts
which would otherwise be valid, and is thus not purely promotional: R. KOLB, “Observation sur l’évolution du
concept de jus cogens”, Revue Générale de Droit International Public 2009, 843 and 846.
711
L.M. CAPLAN, “State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy
Theory”, American Journal of International Law 2003, 741-742 (in the end concluding that the issue is moot
since sovereign immunity is not part of international law); A. ORAKHELASHVILI, “State Immunity and
International Public Order Revisited”, German Yearbook of International Law 2006, 342; Id., “State Immunity
and Hierarchy of Norms: Why the House of Lords Got It Wrong”, European Journal of International Law
2007, 955-969; Dissenting Opinion Judge WALD, Princz v. Federal Republic of Germany, 26 F.3d 1179-1185
(D.C. Cir. 1994).
712
See: Saudi Arabia v. Nelson, 507 US 349 (1993); Hwang Geum Joo et al. v. Japan, 172 F.Supp. 2d 60 (D.C.
Cir. 2001); Certain Underwriters at Lloyds London et al. v. Great Socialist People’s Libyan Arab Jamahiriya et
al., 2007 U.S. Dist. LEXIS 49032 (D.C. Cir. 2007); Hana Hilsenrath and al. v. The Swiss Confederation et al.,
2007 U.S. Dist. LEXIS 81118 (N.D. Cal. 2007); House of Lords, Ron Jones v. Ministry of Interior of the

163
of jus cogens in international criminal law, since previously the thesis established that there is
no necessary connection between jus cogens and international criminal law.713 In any event,
all aspects of international crimes that are linked to jus cogens are laid down in conventional
or customary international law.714

180. Nevertheless, a closer study of the consequences of jus cogens may result in a better
conception of jus cogens and a better notion of the operation and function of such norms. In a
first part I will discuss the consequences of jus cogens in the law of treaties as laid down in
the Vienna Convention on the Law of Treaties. The main consequence of jus cogens in the
law of treaties is that it renders derogations from peremptory norms void, the practical
consequences of which are further elaborated upon. In addition the Convention also
determines the consequences of a collision between an existing treaty and a new emerging
peremptory norm. Nevertheless, despite laying down a nullity ab initio for treaties that are
inconsistent with existing peremptory norms and terminating and voiding treaties conflicting
with a new peremptory norm, the Vienna Convention also has established a procedure to void
treaties, which will be critically analysed. In a second part the effects of peremptory norms
outside the law of treaties will be outlined. First, it will be examined whether the introduction
of jus cogens has created a hierarchy in international law and what the consequences thereof
are. Secondly, the consequences of peremptory norms in the law of State responsibility will
be looked into, especially the possibility to invoke breaches of peremptory norms and to take
countermeasures by not directly affected States, and the regime for serious breaches of
peremptory norms.

SECTION.2. LEGAL CONSEQUENCES FLOWING FROM THE VIENNA CONVENTION ON THE

LAW OF TREATIES

§1. Nullity of treaties derogating from existing norms of jus cogens

181. The sanction of a treaty derogating from an existing peremptory norm is its absolute
nullity. The wording of Article 53 Vienna Convention on the Law of Treaties is clear: a treaty
is void if at the moment of its conclusion it conflicts with an existing norm of jus cogens. The
voidness ab initio of such a treaty has also been confirmed at the Vienna Conference.715 In

Kingdom of Saudi Arabia, Judgment of 14 June 2006, [2006] UKHL 26, §§ 43-45; Cour de cassation, No. 02-
45.961, 16 December 2003, Bucheron c. République Fédérale d’Allemagne, Bulletin 2003, I, No. 258.
713
Supra, No. 159.
714
C. FOCARELLI, “Immunité des Etats 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 jurisdictionelle des Etats étrangers”, Revue
Générale de Droit International Public 2008, 786; Id., “Promotional Jus Cogens: A Critical Appraisal of Jus
Cogens’ Legal Effects”, Nordic Journal of International Law 2008, 450; R. KOLB, “Observation sur l’évolution
du concept de jus cogens”, Revue Générale de Droit International Public 2009, 847.
715
Cuba, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 37; USSR, 52nd Meeting of the Committee of the Whole, l.c., § 3; Columbia,
53rd Meeting of the Committee on the Whole, l.c., § 28; Uruguay, 53rd Meeting of the Committee on the Whole,
l.c., § 48; Byelorussia, 54th Meeting of the Committee of the Whole, l.c., § 10; India, 54th Meeting of the
Committee of the Whole, l.c., § 15; Ecuador, 19th Plenary Meeting, United Nations Conference on the Law of
Treaties, Official Records, Vol. II, 1970, § 31 and § 38; Romania, 19th Plenary Meeting, l.c., § 51; Ecuador, 22nd
Plenary Meeting, l.c., § 68.

164
case of voidable treaties, the Vienna Conventions uses the wording “may invoke […] as
invalidating consent”.716 Furthermore, it is not required that the treaty has entered into force to
make it null: the wording “at the time of its conclusion” refers to the whole treaty-making
process and a treaty can in theory be declared void from the moment of the adoption of its
text.717 Moreover, voidness ab initio entails that the nullity cannot be remedied in any way,
even by a later agreement to execute the void treaty or by acquiescence.718 Next to invalidity
because of conflict with jus cogens the Vienna Convention on the Law of Treaties contains
two other grounds of absolute nullity,719 which are in reality not always easily distinguishable:
treaties concluded by coercion on the representative of the State and treaties concluded with
another State as a result of the threat or use of force.720 In fact, it has been argued that because
of the similarity between Article 52 and Article 53 Vienna Convention on the Law of Treaties
the former is an example of jus cogens because it is the logical consequence of the
peremptory norm prohibiting inter-State use of force or the threat therewith.721 This is correct.
If the prohibition of the use of force is a peremptory norm, then a violation of that norm may
not produce any legal effects, such as the validity of a treaty concluded as the result thereof.
Nevertheless, Article 52 and 53 Vienna Convention remain different grounds for invalidating
treaties since Article 53 focuses on the invalidity of a treaty whose object conflicts with a
peremptory norm, whereas the object of a treaty invalid pursuant to Article 52 can perfectly
be in accordance with jus cogens, rather it is the context in which the treaty was concluded
that brings about it invalidity.722

716
Article 46 to 50 Vienna Convention on the Law of Treaties (1969); C.L. ROZAKIS, “The Law on Invalidity of
Treaties”, Archiv für Völkerrecht 1974, 158.
717
E. SUY, “Article 53 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de Vienne
sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 1915.
718
Article 45 Vienna Convention on the Law of Treaties (1969) (a contrario); L. HANNIKAINEN, Peremptory
Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status, Helsinki,
Lakimiesliiton Kustannus, 1988, 293; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford,
Oxford University Press, 2006, 146-147; M.G. KOHEN, “Article 45 – Convention de 1969” in O. CORTEN and P.
KLEIN (eds.), Les conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels,
Bruylant, 2006, 1679.
719
Absolute nullity means that the legal act is not existing because of the immediate and automatic operation of
the law and that the act cannot be confirmed; it does not entail an acceptance of the domestic law distinction
between relative and absolute grounds of invalidity in international law: C.L. ROZAKIS, “The Law on Invalidity
of Treaties”, Archiv für Völkerrecht 1974, 156-157.
720
Article 51 and 52 Vienna Convention on the Law of Treaties (1969). One of the most infamous examples is
the threats by Nazi Germany on the representatives of Czechoslovakia, President Hacha and Minister of Foreign
Affairs Chvalkovsky in order to force them to accept a protectorate over Bohemia and Moravia, personal threats
which were accompanied with threats of aggression against the country: G. DISTEFANO, “Article 51 –
Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de Vienne sur le droit des traités,
Commentaire article par article, Brussels, Bruylant, 2006, 1844-1845. On the other hand, classic international
law prohibited the coercion of State representatives, but not the use of force against the State as such: Ibid.,
1838.
721
Hungary, 15th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 23; M. VIRALLY, “Réflexions sur le ‘jus cogens’”, Annuaire français de Droit
International 1966, 13. Special Rapporteur WALDOCK considered that the prohibition of coercion on a State is a
principle of international public order: Special Rapporteur WALDOCK, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 25.
722
S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 26 K. KAWASAKI, “A Brief
Note on the Legal Effects of Jus Cogens in International Law”, Hitotsubashi Journal of Law and Politics 2006,
30.

165
182. The next question is when a treaty will be declared void, or in other words when is
there a conflict between a convention and a norm of jus cogens. Evidently, a treaty will
conflict if its object or purpose will be contrary to a peremptory norm.723 If its terms contain
express provisions derogating from a peremptory norm, then it will be clear that the object of
the treaty goes against jus cogens. For instance, a treaty in which the parties have laid down
the intention to wage aggressive war against a third State is clearly contrary to a peremptory
norm and would be void. Similarly, a convention in which States undertake to commit
genocide against a national, racial, ethnic or religious minority living within its borders would
be void. Nevertheless, it is not necessary that the whole treaty be aimed at contravening a
peremptory norm: for the purpose of Article 53 the mere contradiction between a treaty
provision and a peremptory norm suffices to make the whole treaty void, despite the lawful
object and purpose of the treaty.724 Of course, it can be expected that such treaties will not
occur. However, what if the subsequent execution of a treaty violates a peremptory norm
although the wording of the treaty does not conflict with the peremptory norm concerned? In
this respect the initial proposal of what had to become Article 53 Special Rapporteur
WALDOCK stated that voidness could result from the object and the execution of the treaty.725
Yet, this proposal was met with strong criticism within the International Law Commission by
some members who were of the opinion that a treaty with a lawful object could be declared
void because of its execution.726

723
A.-J. LEONETTI, “Interprétation des traités et règles imperatives du droit international general (jus cogens)”,
österreichisches Zeitschrift fur öffentliches Recht 1973, 97; E.P. NICOLOUDIS, La nullité de jus cogens et le
développement contemporain du droit international public, Athens, Éditions Papazissis, 1974, 47; C.L.
ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 97; A.
ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 133. In
certain circumstances, the treaty may be void because the drafters of the convention do not have the power to
conclude the treaty, for instance a colonizing State or a State having invaded and occupying another State.
Whereas the object of such conventions may be perfectly lawful, they will still be void: A. ORAKHELASHVILI,
Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 138. The reason for the
invalidity in such cases is that the object of the treaty and the power to conclude the treaty are intrinsically
linked: the peremptory norm requires that only specific actors can make the treaty. For instance, the transfer or
incorporation of territory or the delimitation of the continental shelf can only be exercised in respect with the
right of self-determination of the people: Declaration on the Granting of Independence to Colonial Countries
and Peoples, UN General Assembly Resolution 1514 (XV), § 2 and § 5; UN General Assembly Resolution
1541 (XV), Principle VII; Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations, Annex to UN General
Assembly Resolution 2625 (XXV); Western Sahara, Advisory Opinion, ICJ Rep. 1975, §§ 54-59; East Timor
(Portugal v. Australia), Judgment, ICJ Rep. 1995, 90.
724
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 138;
contra: A.-J. LEONETTI, “Interprétation des traités et règles imperatives du droit international general (jus
cogens)”, österreichisches Zeitschrift fur öffentliches Recht 1973, 97.
725
Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the International Law
Commission 1963, Vol. II, 52. Support for the inclusion of execution as a reason for voidness was given by:
ROSENNE, 683rd Meeting of the International Law Commission, Yearbook of the International Law Commission
1963, Vol. I, §§ 52-53.
726
BRIGGS, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 28.

166
183. In most instances, the execution of the treaty will reflect the object of the treaty.727
Consequently, in such case it might be held that the treaty is void. Nevertheless, there has
been no instance in which a treaty has been declared void because of its execution alone.728
Furthermore, what if a convention is only executed by some of its parties in a manner which
is contrary to jus cogens? For instance a convention combating terrorism which provides for
the extradition of terrorist to the State in whose territory the terrorist act has been committed.
Some States take into consideration the non-refoulement principle for refugees,729 which
prohibit States to extradite refugees to countries where their life or freedom would be
threatened on account of their race, religion, nationality, membership of a particular social
group or political opinion; others always extradite on the basis of the convention even if the
non-refoulement principle applies. Would such a convention be invalid in toto and ab intitio?
Furthermore, what if a treaty is consistent with jus cogens, its previous execution is equally
consistent with jus cogens, but the treaty is subsequently applied and executed contrary to jus
cogens? To make this hypothesis more concrete: the North Atlantic Treaty Organization
provides in Article V for a right of collective self-defence, which is not contrary to jus
cogens.730 Yet, the NATO bombing campaign against the former Yugoslavia was in violation
of the prohibition on the use of force.731 Would the convention establishing NATO become
void? It is submitted that in these two hypotheses the treaties would not be void, but that the
parties thereto have committed an international wrongful act by executing the treaty contrary
to peremptory norms.732 In the first hypothesis it in fact concerns a wrong interpretation of the
obligation contained therein, since Article 31 (3)(c) Vienna Convention on the Law of

727
A. LAGERWALL, “Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2329. See also:
JIMÉNEZ DE ARÉCHAGA, 684th Meeting of the International Law Commission, Yearbook of the International
Law Commission 1963, Vol. I, § 39.
728
“Commentary to Article 26”, “Report of the International Law Commission to the General Assembly on Its
Work during Its 53rd Meeting”, Yearbook of the International Law Commission 2001, Vol. II, Part 2, 84.
729
Article 33 (1) Convention relating to the Status of Refugees (1951). The non-refoulement principle has been
deemed to be part of jus cogens: Tribunal fédéral, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14
November 2007, § 7.3; UNHCR Executive Committee, 33rd Session, Conclusion No. 25 (1982), UN Doc.
A/37/12/Add.1, § b; Cartagena Declaration on Refugees (1984), Colloquium on the International Protection of
Refugees in Central America, Mexico and Panama, § III.5, at
http://www.unhcr.org/refworld/docid/3ae6b36ec.html; J. ALLAIN, “The Jus Cogens Nature of Non-
refoulement”, International Journal of Refugee Law 2001, 538-541; K. PARKER and L.B. NEYLON, “Jus
Cogens: Compelling the Law of Human Rights”, Hastings International and Comparative Law Review 1988-
1989, 435-436; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University
Press, 2006, 55. But see: Supreme Court of New Zealand, Attorney General v. Ahmed Zaoui et al., SC Civ
19/2004, [2005] NZSC 38, § 51.
730
The right to self-defence is an exception to the prohibition on the use of force: Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986,
§ 190 and § 193. Since the prohibition on the use of force is part of jus cogens (infra, Chapter 6, Section 2, § 2),
the right to self-defence as an exception also needs to have this status.
731
B. SIMMA, “NATO, the UN and the Use of Force: Legal Aspects”, European Journal of International Law
1999, 22; A. CASSESE, “Ex iniuria ius oritur: Are We Moving towards Legitimation of Forcible Humanitarian
Countermeasures in the World Community?”, European Journal of International Law 1999, 23-24 and 25; T.
GAZZINI, “NATO Coercive Military Activities in the Yugoslav Crisis (1992-1999)”, European Journal of
International Law 2001, 433; P. HILPOLD, “Humanitarian Intervention: is There a Need for a Legal
Reappraisal?”; European Journal of International Law 2001, 459.
732
A. LAGERWALL, “Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2333-2334.

167
Treaties prescribes that parties should take all pertinent rules applicable to their relations into
account when interpreting their treaty obligations. The principle of non-refoulement is such a
norm closely linked to the obligation to extradite. In the second hypothesis, it concerns plainly
a violation of a peremptory norm by for instance an erroneous interpretation of the right to
self-defence or by alleging an exception to the prohibition on the use of force which does not
exist in international law. Nevertheless, if it becomes clear from the execution of the treaty
that it was indeed the object of the treaty to violate a jus cogens norm and that parties actually
had this breach in mind when concluding the treaty, or if the execution would necessarily
considering the factual context lead to a violation of jus cogens, the treaty could be declared
void.733

184. If the treaty has been found to be inconsistent with jus cogens, the issue arises whether
the whole treaty becomes void or only the provisions derogating from the peremptory norms.
In this respect, the impossibility of severance has been explicitly laid down in Article 44 (5)
Vienna Convention on the Law of Treaties. Consequently, the whole treaty will be void even
if only a small number of its provisions will derogate from jus cogens. Although the issue of
severability was seriously contested during the preparatory works of the International law
Commission and at the Vienna Conference,734 in the end the complete nullity of the treaty was

733
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 137.
With respect to Security Council Resolutions it has been held that the consequences of a resolution can
contradict jus cogens and that therefore the resolution is invalid: Separate Opinion Judge ad hoc LAUTERPACHT,
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, ICJ Rep.
1993, §102; Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, § 296;
European Court of First Instance, Kadi v. Council and Commission, Case T-315/01, Judgment, 21 September
2005, European Court Reports 2005, II-3725, § 230; Id., Yusuf and Al Barakaat International Foundation v.
Council and Commission, Case T-306/01, Judgment, 21 September 2005, European Court Reports 2005, II-
3627, § 281; Court of Appeal, R (on the application of Al-Jedda) v. Secretary of State for Defence [2006]
EWCA Civ 327, § 71; Tribunal fédéral, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November
2007, § 7; A. ORAKHELASHVILI, “The Impact of Peremptory Norms on the Interpretation and Application of
United Nations Security Council Resolutions”, European Journal of International Law 2005, 59 et seq; M.
PAYANDEH, “Rechtscontrolle des UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte”, Zeitschrift
für ausländisches öffentliches Recht und Völkerrecht 2006, 46-47; H.P. AUST and N. NASKE, “Rechtsschutz
gegen den UN-Sicherheitsrat durch europäische Gerichte? Die Rechtsprechung des EuG zur Umsetzung
‘gezielter Sanktionen’ aus dem Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht 2006, 602.
734
For the debate in the International Law Commission: Pro: YASSEEN, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 42 and 684th Meeting of the
International Law Commission, l.c., § 79; change in position in 837th Meeting of the International Law
Commission, Yearbook of the International Law Commission 1966, Vol. I, § 6; CASTRÉN, 683rd Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 72 and 705th
Meeting of the International Law Commission, l.c., § 97; BARTOŠ, 683rd Meeting of the International Law
Commission, l.c., § 85; LACHS, 684th Meeting of the International Law Commission, l.c., § 12 and 706th
Meeting of the International Law Commission, l.c., § 74; AMADO, 684th Meeting of the International Law
Commission, l.c., § 18; JIMÉNEZ DE ARÉCHAGA, 684th Meeting of the International Law Commission, l.c., § 42;
706th Meeting of the International Law Commission, l.c., § 92; 707th Meeting of the International Law
Commission, l.c., § 29; and 836th Meeting of the International Law Commission, Yearbook of the International
Law Commission 1966, Vol. I, § 16; WALDOCK, 707th Meeting of the International Law Commission, Yearbook
of the International Law Commission 1963, Vol. I, § 12 and § 14; BRIGGS, 837th Meeting of the International
Law Commission, Yearbook of the International Law Commission 1966, Vol. I, § 27; REUTER, 837th Meeting of
the International Law Commission, l.c., § 30; contra: TABIBI, 683rd Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, §§ 47-48; ROSENNE, 683rd Meeting

168
maintained. Special Rapporteur WALDOCK initially proposed that severability would be
possible if the provision was not intrinsically linked to the principal objects of the treaty and
was clearly severable from the rest of the Convention.735 He did not give any reasons why this
should be the case, except that severance was preferable and that it was desirable to save the

of the International Law Commission, l.c., § 60; 685th Meeting of the International Law Commission, l.c., § 15;
and 836th Meeting of the International Law Commission, Yearbook of the International Law Commission 1966,
Vol. I, § 19 (in favour of severance in case of jus cogens superveniens: 706th Meeting of the International Law
Commission, Yearbook of the International Law Commission 1963, Vol. I, § 30); AGO, 683rd Meeting of the
International Law Commission, Yearbook of the International Law Commission 1963, Vol. I, § 77 and 684th
Meeting of the International Law Commission, l.c., § 54; PAL, 684th Meeting of the International Law
Commission, l.c., § 35 and 706th Meeting of the International Law Commission, l.c., § 15; TUNKIN, 837th
Meeting of the International Law Commission, Yearbook of the International Law Commission 1966, Vol. I, §
8; RUDA, 837th Meeting of the International Law Commission, l.c., § 18; DE LUNA, 837th Meeting of the
International Law Commission, l.c., § 42.
For the debate at the Vienna Conference: pro severance: Finland, 41st Meeting of the Committee of the Whole,
United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 2; 52nd Meeting of the
Committee on the Whole, l.c., § 13 and 16th Plenary Meeting, United Nations Conference on the Law of
Treaties, Official Records, Vol. II, 1970, § 25; Canada, 42nd Meeting of the Committee of the Whole, United
Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 10; and 56th Meeting of the
Committee on the Whole, l.c., § 24; Italy, 54th Meeting of the Committee on the Whole, l.c., § 44; United
Kingdom, 41st Meeting of the Committee of the Whole, l.c., § 15; 16th Plenary Meeting, United Nations
Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 26 and 19th Plenary Meeting, l.c., § 56;
United States, 41st Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 22; Greece, 42nd Meeting of the Committee of the Whole, l.c., § 30; Turkey,
16th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 28;
contra: USSR, 41st Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, §§ 28-29; Romania, 41st Meeting of the Committee of the Whole, l.c., § 41;
Ethiopia, 41st Meeting of the Committee of the Whole, l.c., § 59; Zambia, 42nd Meeting of the Committee of the
Whole, l.c., § 2 and 56th Meeting of the Committee on the Whole, l.c., § 11; Spain, 42nd Meeting of the
Committee of the Whole, l.c., § 6; Jamaica, 42nd Meeting of the Committee of the Whole, l.c., § 21 and 16th
Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 34;
Bulgaria, 42nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 25; and 16th Plenary Meeting, United Nations Conference on the Law of
Treaties, Official Records, Vol. II, 1970, § 30; Poland, 42nd Meeting of the Committee of the Whole, United
Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 32; and 53rd Meeting of the
Committee of the Whole, l.c., § 39; Ghana, 42nd Meeting of the Committee of the Whole, l.c., § 36; Cuba, 52nd
Meeting of the Committee of the Whole, l.c., § 39; and 16th Plenary Meeting, United Nations Conference on the
Law of Treaties, Official Records, Vol. II, 1970, § 31; Sierra Leone, 53rd Meeting of the Committee of the
Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 12; Columbia, 53rd
Meeting of the Committee of the Whole, l.c., § 28; Uruguay, 53rd Meeting of the Committee of the Whole, l.c.,
§ 49; Cyprus, 53rd Meeting of the Committee of the Whole, l.c., § 73; Byelorussia, 54th Meeting of the
Committee of the Whole, l.c., § 10; India, 54th Meeting of the Committee of the Whole, l.c., § 20; Argentina,
54th Meeting of the Committee of the Whole, l.c., § 25; Israel, 54th Meeting of the Committee of the Whole, l.c.,
§ 39; Hungary, 54th Meeting of the Committee of the Whole, l.c., § 47; Ceylon, 55th Meeting of the Committee
of the Whole, l.c., § 40; Ecuador, 55th Meeting of the Committee on the Whole, l.c., § 45; Ivory Coast, 55th
Meeting of the Committee of the Whole, l.c., § 51; Ukraine, 56th Meeting of the Committee of the Whole, l.c., §
7; Thailand, 56th Meeting of the Committee of the Whole, l.c., § 47; Trinidad and Tobago, 56th Meeting of the
Committee of the Whole, l.c., § 66; China, 66th Meeting of the Committee of the Whole, l.c., § 30; Uruguay,
20th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 53.
735
Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the International Law
Commission 1963, Vol II, 52 and 93.

169
provisions of a treaty as much as possible.736 However, the International Law Commission
could in the end not accept this position and opted for a complete nullity of the treaty,
although again no adequate reasons were given for retaining this option.737 On the one hand,
the complete invalidity of the treaty might be deemed excessive and as such there are no
practical reasons not to allow severability if this would be possible. On the other hand, if one
considers norms of jus cogens as the basic fundaments of the international community,
accepted by all its members as norms which may not be set aside in any event, derogations of
such norms can hardly be unintentional; consequently, the impossibility of severing the
derogatory clauses is in fact a sort of sanction in the interest of the international community as
a whole against its members who have purposely derogated from peremptory norms.738 In any
event, the rules enunciated in Article 44 Vienna Convention on the Law of Treaties do not
reflect customary international law,739 which entails that pursuant to Article 4 for treaties
predating the entry into force of the Vienna Convention severance is permitted,740 and there is
some support for the severability of clauses in order to give the remainder of the treaty
effect.741

185. Concerning the effects of invalidity pursuant to Article 53, the nullity of Article 53
operates ab initio,742 and has more far-reaching effects compared to grounds of relative

736
Ibid., 53; WALDOCK, 706th Meeting of the International Law Commission, Yearbook of the International
Law Commission 1963, Vol. I, § 93.
737
The Drafting Committee decided not to include the possibility of severance in then Article 13, because in
light of the nature of jus cogens that possibility was “inappropriate” and parties should take the consequences of
a convention derogating from jus cogens: WALDOCK, 717th Meeting of the International Law Commission,
Yearbook of the International Law Commission 1963, Vol. I, § 21; Special Rapporteur WALDOCK introduced a
new version in 1966, in which severance for breaches of jus cogens was not retained: Special Rapporteur
WALDOCK, “Fifth Report on the Law of Treaties”, Yearbook of the International Law Commission 1966, Vol.
II, 9. After the 837th Meeting the article was sent to the Drafting Committee whose text was introduced at the
842nd Meeting of the International Law Commission (Yearbook of the International Law Commission 1966,
Vol. I, § 79), retaining the prohibition of severance. After a partial redraft by the Special Rapporteur the text
was adopted at the 843rd Meeting of the International law Commission (Yearbook of the International Law
Commission 1966, Vol. I, §§ 1-13); amended in 891st Meeting (Yearbook of the International Law Commission.
1966, Vol. I, §§ 66-67) and 893rd Meeting of the International Law Commission (Yearbook of the International
Law Commission 1966, Vol. I, §§ 60-67). The Commentary does not state any reason why indivisibility would
not be an option except the fundamental character of norms of jus cogens: “Report of the International Law
Commission on the Work of Its Eighteenth Session”, Yearbook of the International Law Commission 1966, Vol.
II, 239.
738
P. REUTER, Introduction au droit des traités, Paris, Presses universitaires de France, 1995, 151; A.
ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 149; C.L.
ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 124; C.L.
ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974, 172; A.L. PAULUS, “Jus Cogens in
a Time of Hegemony and Fragmentation, An Attempt at a Re-appraisal”, Nordic Journal of International Law
2005, 304.
739
M. BEDJAOUI and T. LEIDGENS, “Article 44 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 1651.
740
S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 326-327.
741
Separate Opinion Judge LAUTERPACHT, Certain Norwegian Loans (France v. Norway), Judgment, ICJ Rep.
1956, 56-57; Separate Opinion Judge SPENDER, Interhandel Case (Switzerland v. United States), ICJ Rep.
1959, 57; Dissenting Opinion Judge Al-KHASAWNEH, Aerial Incident of 10 August 1999 (Pakistan v. India),
Jurisdiction of the Court, Judgment, ICJ Rep. 2000, §§ 22 et seq.
742
F. CRÉPEAU and R. CÔTÉ, “Article 71 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2552;

170
nullity.743 This is reflected in Article 71 (1) Vienna Convention on the Law of Treaties:
parties to the treaty are obliged to as far as possible wipe out the consequences of every act
performed on the basis of the treaty clauses contrary to jus cogens and the re-instalment of the
relations between the parties in conformity with jus cogens. The first effect resembles in fact a
restitutio in integrum, or the re-establishing of the situation as it would have existed if the
treaty would not have been concluded, or in the absence thereof by paying compensation. In
this respect the adding of the wording “as far as possible” is problematic. Of course,
establishing the situation in such a way as if the violation of jus cogens had never occurred is
not always possible. Nevertheless, although restitutio in integrum might not always be
possible, the paying of equivalent compensation always is.744 It appears that the International
Law Commission was rather referring to the material impossibility to restore the situation as it
had existed. Since it could not deal with State responsibility in its codification on the law of
treaties, it did not want to introduce a provision dealing with the issue of reparation for legal
effects of invalidated treaties which could not be undone by restitutio in integrum.745
Consequently, under the law on State responsibility there would be no excuse to wipe out all
past acts based on the void treaty, either by restitution or by paying compensation if
restitution is impossible. The second effect of nullity requires that the parties to the void
convention undertake all steps which are not covered by the first consequence of nullity. This
would include the retraction of national legislation or unilateral acts adopted on the basis of
the void convention, but more generally the second effect of nullity pursuant to Article 53 is
aimed at the future, whereas the first effect concerns action done in the past on the basis of the
null convention.746 Furthermore, it has been argued that the duty to only remedy the
consequences of acts performed on the basis of the dispositions of the treaty conflicting with
jus cogens has reintroduced the issue of severability.747 Nonetheless, Article 71 (1) is
concerned with the consequences of the nullity, not with the fate of the treaty as such. In
essence only the consequences of the clauses contrary to jus cogens need to be eliminated, the
consequences based on other provisions may continue to exist.748 In this respect, there is some
support that these provisions which are not in violation of jus cogens would fall under Article
69 of the Convention.749 Therefore, although the other provisions of the convention

D. COLARD, “Premières réflexions sur le ‘Traité des Traités’: La Convention de Vienne du 23 mai 1969”,
Journal de Droit International 1970, 279.
743
G. DISTEFANO, “Article 51 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 1857-1862; A.
ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 143 et seq.
744
F. CRÉPEAU and R. CÔTÉ, “Article 71 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2557.
745
See statements of LACHS, 707th Meeting of the International Law Commission, Yearbook of the International
Law Commission 1963, Vol. I, § 53; YASSEEN, l.c., § 56; BARTOŠ, l.c., §§ 68-69.
746
F. CRÉPEAU and R. CÔTÉ, “Article 71 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2552-
2553.
747
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 104.
748
F. CRÉPEAU and R. CÔTÉ, “Article 71 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2560;
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 133-134;
C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974, 173.
749
United Kingdom, 23rd Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records,
Vol. II, 1970, § 16; Federal Republic of Germany, l.c., § 17.

171
derogating jus cogens do not have any legal force, acts performed in good faith before the
ground of invalidity has been invoked will not become illegal. In any event, if the parties have
acted upon such provisions, every party may request all other parties to establish the situation
which would have existed if these provisions had not been executed.750

§2. Termination of treaties conflicting with new norms of jus cogens

186. Article 64 establishes that a treaty conflicting with a new peremptory norm becomes
void and terminates. But can these two effects take place? A treaty which becomes void
necessarily terminates, but a treaty becoming void implies that the nullity has some
retroactive effect since otherwise “void” and “terminates” have the same meaning and the
reference to voidness in Article 64 would be pointless. The debates on this issue in the
International Law Commission have not led to any solution and therefore the text as it stood
was withheld, although Article 64 was inserted in the section dealing with termination of a
treaty.751 In any event, the commentary to Article 64 clearly indicates that it in fact concerns a
ground for terminating the treaty and not a ground of invalidity.752 Nevertheless, the Vienna
Conference adopted the provision without any change, although France pointed to the
problem of inappropriateness of the term “void”,753 and Chile proposed an amendment to
delete the reference to voidness.754 However, it seems that the retention of voidness is at least
partially justified. In effect, the emergence of a new peremptory norm makes the treaty or part

750
Article 69 (1)-(2) Vienna Convention on the Law of Treaties (1969).
751
A. LAGERWALL, “Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2336-2237. The rule
was first introduced by Article 21 (4) stating that a new peremptory norm was a ground for terminating a treaty,
although parties were not obliged to terminate the treaty: Special Rapporteur WALDOCK, “Second Report on the
Law of Treaties”, Yearbook of the International Law Commission 1963, Vol. II, 78; a Chilean amendment at the
Conference contained similar wording: Chile, 22nd Plenary Meeting, United Nations Conference on the Law of
Treaties, Official Records, Vol. II, 1970, § 55; the Drafting Committee’s text (Article 22 bis) held that the treaty
automatically becomes void and terminates; for a discussion on voidness in case of jus cogens superveniens:
711th Meeting of the International Law Commission, Yearbook of the International Law Commission 1963, Vol.
I, §§ 27 et seq. A revised text was introduced at the 717th Meeting of the International Law Commission, l.c., §§
81-86, where both terms were retained. From the Commentary it can be deduced that the International Law
Commission aimed to stress the overriding importance of peremptory norms by retaining the term void: “Report
of the International Law Commission on the Work of Its Eighteenth Session”, Yearbook of the International
Law Commission 1966, Vol. II, 261. The issue was re-examined in the fifth report of the Special Rapporteur:
Special Rapporteur WALDOCK, “Fifth Report on the Law of Treaties”, Yearbook of the International Law
Commission 1966, Vol. II, 44-45; it was discussed in the 836th Meeting of the International Law Commission,
Yearbook of the International Law Commission 1966, Vol. I, §§ 22-80 and in the 842nd Meeting of the
International Law Commission, l.c., §§ 58-70; it was adopted at the 893rd Meeting of the International Law
Commission, l.c., §§ 95-96.
752
“Report of the International Law Commission on the Work of Its Eighteenth Session”, Yearbook of the
International Law Commission 1966, Vol. II, 261. See also: F. CAPOTORTI, “L’extinction et la suspension des
traités”, Recueil des Cours 1971-III, 459 and 524; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of
Treaties, Amsterdam, North-Holland, 1976, 138; C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für
Völkerrecht 1974, 174-175.
753
France, 66th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 20.
754
Chile, 22nd Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II,
1970, § 55.

172
of it illegal, which is not the case with the other grounds of termination of a treaty since in
such instances the treaty itself remains valid, although there exists a ground for their
termination. Consequently, the treaty terminates without any action by the parties but because
of a conflict with a peremptory norm. Furthermore, the reference to voidness would justify the
application of Article 42 (1) of the Convention requiring that in case of invalidity the dispute
settlement procedure of Article 65 and 66 should be followed,755 whereas otherwise
termination could also be arranged by the treaty itself. Moreover, this ground of termination is
in two other respects different from other grounds of termination: first, parties cannot
conclude agreements changing the effects provided for this ground of termination; second,
rights, obligations and situations created by the execution of the treaty can only be maintained
if this would not contradict the new norm of jus cogens.756 In any event, the termination only
concerns the clauses of the treaty which contradict the new peremptory norm, the rest of the
treaty can remain in effect if the conditions of Article 44 Vienna Convention on the Law of
Treaties can be fulfilled. Consequently, if solely particular clauses of the treaty are derogating
from a new peremptory norm, they can be severed from the treaty if such clauses are
separable from the remainder of the treaty with regard to their application,757 it appears from
the treaty or is otherwise established that acceptance of those clauses was not an essential
basis of the consent of the other party or parties to be bound by the treaty as a whole, and
continued performance of the remainder of the treaty would not be unjust. Nonetheless, if the
object of the treaty itself would go against the new peremptory norm, the whole treaty will be
invalidated since severance can only be allowed if the ground for invalidity concerns certain
clauses, but not the treaty as a whole, even though some clauses may not infringe the new
peremptory norm.758 In principle it is the parties who decide whether the clauses can be
severed from the remainder of the treaty, but the issue that the clauses going against jus
cogens are not an essential basis of the consent of the other party and the reference to justice
in Article 44 (3) would warrant the intervention of international judicial bodies.759

187. The consequences of the termination of the treaty by a subsequent peremptory norm are
that the parties are immediately liberated from executing the treaty and that rights, obligations
and situations resulting from the treaty cannot be maintained if this would contradict jus

755
WALDOCK, 40th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 62.
756
Compare Article 70 to Article 71 Vienna Convention on the Law of Treaties (1969); A. LAGERWALL,
“Article 64 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de Vienne sur le droit
des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2338-2339; F. CAPOTORTI, “L’extinction
et la suspension des traités”, Recueil des Cours 1971-III, 459.
757
In particular, severance would concern clauses or provisions which form a self-contained regime which is
not intrinsically linked with the remainder of the treaty: M.E. VILLIGER, Commentary on the 1969 Vienna
Convention on the Law of Treaties, Leiden, Nijhoff, 2009, 566.
758
Article 44 (3) Vienna Convention on the Law of Treaties (1969); BRIGGS, 837th Meeting of the International
Law Commission, Yearbook of the International Law Commission 1966, Vol. I, § 28; M.E. VILLIGER,
Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009, 565; in principle a
treaty is not subject to divisibility: Article 44 (2) Vienna Convention on the Law of Treaties (1969).
759
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 107. See also: United Kingdom, 41st Meeting of the Committee of the
Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 14; Italy, 16th
Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 29.
Nothing would prevent that in a procedure to annul the treaty on the basis of a new peremptory norm the issue
of severance would be raised by the parties to the dispute and decided upon by the Court.

173
cogens; all other previous rights, obligations and situations remain in effect though.760 Article
64 is not only applicable to treaties which were concluded after the entry into force of the
Vienna Convention, but also to treaties which are concluded before the concept of jus cogens
has emerged as a customary norm and which still have effects at the moment the peremptory
norm is introduced.761 Concerning agreements transferring territory imposed by an aggressor
State or border agreements negotiated by a colonial power, the question arises what the status
of such agreements is. One can argue that the transfer of territory or the delimitation of the
territory has been completed and the treaty terminated before the emergence of a new
peremptory norm and that therefore the effects of the treaty can remain in force since they
have been acquired in the past and the termination of a treaty by a new peremptory norm has
no retroactive effect.762
In case the whole treaty would be terminated, the legal consequences of provisions
which are not contradicting the new peremptory norm would fall under the general effects of
termination of treaties as laid down in Article 70, which mirrors Article 71 except that
situations, legal rights, obligations and situations created before the treaty terminated can be
maintained thereafter.

§3. Procedure to invoke the voidness or termination of a treaty for inconsistency with jus
cogens

188. Already at the drafting phase in the International Law Commission concern was voiced
relating to the settlement of disputes with regard of invalidity because of jus cogens. Although
some members were in favour of compulsory settlement of disputes,763 the International Law
Commission did not include this suggestion in its final draft articles.764 At the Vienna

760
If between the emergence of the new peremptory norm and the termination of the treaty, the parties continue
to implement the treaty, the rights, obligations and situations created after the emergence of the new peremptory
norm will be regulated in accordance with Article 71 (1) of the Convention: C.L. ROZAKIS, The Concept of Jus
Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 147.
761
S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 328; C.L. ROZAKIS, The
Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 35-37. If the rules derogating
from jus cogens predate the coming into force of the Vienna Convention on the Law of Treaties, the Convention
would in principle not cover these rules since pursuant to Article 4 it has no retroactive effects. However, if
these rules would continue to operate at the moment the Vienna Convention has become into force, they will be
affected for the future; rights acquired before the coming into force of the Vienna Convention will remain
untouched. This is in line with the general view on intertemporal law as espoused by Arbitrator HUBER in the
Island of Palmas Arbitration: it is not a retroactive application of the later body of law when it is made
applicable on existing rights and obligations which have been created before; existing rights and obligations
follow the evolution of the law: Island of Palmas Arbitration (United States of America v. the Netherlands),
Award of 4 April 1928, Reports of International Arbitration Awards, Vol. II, 845.
762
See: AGO, 847th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1966, Vol. I, § 70.
763
BRIGGS, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, §§ 34-35.
764
See: Article 62 Draft Articles on the Law of Treaties, “Report of the International Law Commission on Its
Eighteenth Session”, Yearbook of the International Law Commission 1966, Vol. II, 185. The Commission was
aware that in the end Article 62 would not necessarily solve the dispute: in case of a deadlock, the governments
had to act in good faith: Ibid., 263. In their comment on the draft the Governments of Finland, Luxembourg,
The Netherlands, Sweden, Turkey, the United Kingdom and the United States criticized the provision for not
including compulsory dispute settlement mechanism: Comments by Luxemburg on parts I, II and III of the

174
Conference a tenacious debate erupted on the subject of compulsory settlement of disputes,
with mainly Western States in favour of the institution of a form of compulsory settlement of
disputes when grounds of invalidity or termination of the treaty would be invoked, especially
on when invalidity would be sought on the ground of jus cogens.765 The main reasons for
introducing the procedure was that otherwise the sanctity of the treaty would be undermined
by unilateral assertions of parties trying to escape their treaty obligations and the novelty of
certain grounds for invalidating and terminating a treaty.766 It was only at the final moment of
the conference that agreement was found by a political compromise settling two unrelated
issues.767

189. The procedure elaborated upon in Article 65 and 66 Vienna Convention on the Law of
Treaties is not regarded as part of customary international law.768 Hence States not party to

Draft Articles on the Law of Treaties Drawn up by the Commission at its Fourteenth, Fifteenth and Sixteenth
Session, Yearbook of the International Law Commission 1966, Vol. II, 312; Comments by Sweden, l.c., 340;
Comments by Turkey, l.c., 341; Comments by the United Kingdom, l.c., 344; Comments by the United States
of America, l.c., 354.
765
Belgium, 41st Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 66; and 55th Meeting of the Committee of the Whole, l.c., § 47; Finland, 52nd
Meeting of the Committee of the Whole, l.c., § 12; Lebanon, 52nd Meeting of the Committee of the Whole, l.c.,
§§ 45-47; Chile, 52nd Meeting of the Committee on the Whole, l.c., § 61; Madagascar, 53rd Meeting of the
Committee of the Whole, l.c., § 23 and § 25; Columbia, 53rd Meeting of the Committee of the Whole, l.c., § 27;
Austria, 53rd Meeting of the Committee on the Whole, l.c., § 47; United Kingdom, 53rd Meeting of the
Committee of the Whole, l.c., § 60; Pakistan, 55th Meeting of the Committee of the Whole, l.c., § 9; Australia,
55th Meeting of the Committee of the Whole, l.c., § 14; Japan, 55th Meeting of the Committee on the Whole,
l.c., § 30; Federal Republic of Germany, 55th Meeting of the Committee of the Whole, l.c., §§ 35-36; Ceylon,
55th Meeting of the Committee of the Whole, l.c., § 39; Canada, 56th Meeting of the Committee of the Whole,
l.c., § 23; Monaco, 56th Meeting of the Committee of the Whole, l.c., § 33; Norway, 56th Meeting of the
Committee of the Whole, l.c., § 40; United States, 80th Meeting of the Committee of the Whole, l.c., § 18;
Sweden, 80th Meeting of the Committee of the Whole, United l.c., § 21; Italy, 80th Meeting of the Committee of
the Whole, l.c., § 22; Federal Republic of Germany, 19th Plenary Meeting, United Nations Conference on the
Law of Treaties, Official Records, Vol. II, 1970, § 28 and § 30; United States, 20th Plenary Meeting, l.c., § 23;
Netherlands, 20th Plenary Meeting, l.c., § 47; Senegal, 20th Plenary Meeting, l.c., §§ 58-60; Austria, 20th Plenary
Meeting, l.c., § 64; Ireland, 20th Plenary Meeting, United l.c., §§ 66-67; Japan, 20th Plenary Meeting, l.c., § 68;
Denmark, 23rd Plenary Meeting, l.c., § 2
766
M. COSNARD , “Article 65 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2350-2351; H. RUIZ
FABRI, “Article 66 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), l.c., 2394.
767
The issue of universal participation in treaty-making became linked to the compulsory settlement of disputes:
D. COLARD, “Premières réflexions sur le ‘Traité des Traités’: la Convention de Vienne du 23 mai 1969”,
Journal de Droit International 1970, 273. For an overview of the debates at the Conference: R.-J. DUPUY,
“Codification et règlement des différends, Les débats de Vienne sur les procédures de règlement”, Annuaire
Français de Droit International 1969, 70-91; S.E. NAHLIK, “La conférence de Vienne sur le droit des traités.
Une vue d’ensemble”, Annuaire Français de Droit International 1969, 24-53 (especially 47-50 for the
compromise solution)
768
See: Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 125; European Court of Justice,
A. Racke GmbH & Co. v. Hauptzollamt Mainz, Case No. C-162/96, Judgment, 16 June 1998, European Court
Reports 1998, I-3674, §§ 58-59; M. COSNARD, “Article 65 – Convention de 1969”, in O. CORTEN and P. KLEIN
(eds.), Les conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant,
2006, 2353-2359; J. VERHOEVEN, “Jus Cogens and Reservations or ‘Counterreservations’ to the Jurisdiction of
the International Court of Justice”, in K. WELLENS (ed.), International Law: Theory and Practice, Essays in
Honour of Eric Suy, Den Haag, Nijhoff, 1998, 198; F. CAPOTORTI, “L’extinction et la suspension des traits”,

175
the Vienna Convention are not required to rely upon the procedural constraints of these
provisions when invoking a ground to invalidate, terminate or suspend a treaty. Since the
concept of jus cogens has entered the realm of customary international law,769 it can be
invoked by all States, even those who are not party to the Vienna Convention in order to
invalidate a treaty to which they are a party, without them needing to have recourse to Article
65 and 66 Vienna Convention on the Law of Treaties.770 Furthermore, since Article 65 and 66
do not have retroactive application, they cannot be relied upon for invalidating or terminating
treaties which have been adopted before the entry into force of the Vienna Convention.
Consequently such treaties should be invalidated or terminated in accordance with general
international law.771

A. Procedure

190. The Vienna Convention on the Law of Treaties of 1969 has laid down one general
procedure for the invalidation, termination and suspension of a treaty differing only at the
second stage when the search for agreement to invalidate, terminate or suspend the treaty has
failed. Article 65 of the Convention determines that only parties to the challenged treaties can
invoke a ground for invalidating, terminating or suspending a treaty: indeed Article 2 (g) of
the Vienna Convention defines a “party” as a “State which has consented to be bound by the
treaty and for which the treaty is in force”. As a result, a treaty derogating from peremptory
norms can only be declared void by one of the parties to that treaty.772

Recueil des Cours 1971-III, 431; W. CZAPLIŃSKI and G.M. DANILENKO, “Conflicts of Norms in International
Law”, Netherlands Yearbook of International Law 1990, 11; S. KADELBACH, Zwingendes Völkerrecht, Berlin,
Duncker & Humblot, 1992, 325. In the Gabčíkovo-Nagymaros Project case the parties agreed that although
Articles 65-67 do not completely reflect customary international law, they reflect customary international law in
some regard and contain some procedural principles based on good faith: Gabčíkovo-Nagymaros Project
(Hungary v. Slovakia), Judgment, ICJ Rep. 1997, § 109. It is indeed correct that Articles 65-67 are reflecting
the principle of peaceful settlement of dispute, the principle of acting in good faith when terminating a treaty
and the duty to provide for a reasonable time to the other party: M. COSNARD, “Article 65 – Convention de
1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de Vienne sur le droit des traités, Commentaire
article par article, Brussels, Bruylant, 2006, 2358-2359.
769
E. SUY, “Article 53 Convention de Vienne de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire Article par Article, Brussels, Bruylant, 2006, 1908.
770
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 143.
771
H. RUIZ FABRI, “Article 66 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2397. The non-
retroactive character of Article 65 and 66 has been confirmed by the International Court of Justice: Armed
Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 124.
772
A. CASSESE, International Law, Oxford, Oxford University Press, 2005, 204; C. FOCARELLI, “Promotional
Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal Effects”, Nordic Journal of International Law 2008,
443; C. FOCARELLI, “Immunité des Etats 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 jurisdictionelle des Etats étrangers”, Revue
Générale de Droit International Public 2008, 778-779; S. KADELBACH, Zwingendes Völkerrecht, Berlin,
Duncker & Humblot, 1992, 331; A.L. PAULUS, “Jus Cogens in a Time of Hegemony and Fragmentation, An
Attempt at a Re-appraisal”, Nordic Journal of International Law 2005, 304-305; C. TOMUSCHAT, “Obligations
Arising for States without or against Their Will”, Recueil des Cours 1993-IV, 363; E.P. NICOLOUDIS, La nullité
de jus cogens et le développement contemporain du droit international public, Athens, Éditions Papazissis,
1974, 164; L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development,

176
191. The procedure to invoke the invalidity of a treaty starts with notifying the other parties
to the treaty of its decision to question the validity of the treaty. The notification can be made
as a separate unilateral act, but might also constitute a reply to a question of other State parties
to perform the treaty.773 It should be sent to the depository and if there is no depository, may
be sent immediately to the parties concerned; the notification is regarded as being made upon
receipt by the other parties or by the depository and being received in case of transmission
through a depository if the parties concerned are being informed of the notification.774 Such
notification should be made in writing and contain the ground for the invalidation, the
measures to be taken, and the reasons therefor.775 The ground for invalidation simply refers to
one of the grounds contained in the Vienna Convention.776 With regard to the proposed
measures, in cases of invalidation for derogation of jus cogens such measures will be a
concretization of the legal effects of Article 71 of the Convention to the contested treaty.777
Finally, the measures should be motivated, but this will essentially boil down to linking the
ground for invalidation or termination with the reasons therefor.778 Concerning invalidation or
termination by a new peremptory norm the State requesting this measure may indicate which
and in what respect peremptory norms have been derogated from.779 The notification may
however be retracted before it has taken effect, although the Convention is not clear when a
notification takes effect. Nevertheless, if the other parties have responded to the notification,
it will have taken effect and can thereafter not be retracted.780 The argument that the

Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 294 ; M.E. VILLIGER, Commentary on the
1969 Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009, 807; C.L. ROZAKIS, “The Law on
Invalidity of Treaties”, Archiv für Völkerrecht 1974, 171, W. CZAPLIŃSKI and G.M. DANILENKO, “Conflicts of
Norms in International Law”, Netherlands Yearbook of International Law 1990, 10-11; P. PICONE, “La
distinzione tra norme internazionali di jus cogens e norme che producono obblighi erga omnes”, Rivista di
Diritto Internazionale 2008, 7-8; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam,
North-Holland, 1976, 115-122 and 170-171, but at the same time pointing out that such a procedure is
inappropriate due to the public interest jus cogens aims to protect.
773
Article 65 (5) Vienna Convention on the Law of Treaties (1969).
774
Article 78 Vienna Convention on the Law of Treaties (1969).
775
Article 65, § 1 and Article 67, § 1 Vienna Convention on the Law of Treaties (1969).
776
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 167; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot,
1992, 331; M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden,
Nijhoff, 2009, 808.
777
Ibid., 167-168; M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden,
Nijhoff, 2009, 808; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-
Holland, 1976, 111-112. The Commentary to the Draft Articles qualifies this requirement differently: the
proposed measure refers to the ground the State disputing the treaty makes, namely whether it seeks invalidity,
termination, or suspension: “Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the
International law Commission 1966, Vol. II, 263; yet this would make the first requirement and the second
requirement identical. CAPOTORTI and ROSENNE nevertheless subscribe to the view of the Commission: F.
CAPOTORTI, “L’extinction et la suspension des traités”, Recueil des Cours 1971-III, 567; S. ROSENNE, “The
Settlement of Treaty Disputes under the Vienna Convention of 1969”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1971, 37.
778
M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009,
808.
779
F. CAPOTORTI, “L’extinction et la suspension des traités”, Recueil des Cours 1971-III, 570.
780
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 170; the response might also consist of taking measures in the internal legal
system for termination of the treaty: M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law

177
notification can be retracted as long as the invalidity has not been pronounced is not
convincing since the retraction is linked to the notification and not the ground of invalidity
laid down in the notification.781 If the notifying State retracts its position concerning the
invalidity of a treaty after the other States have reacted to the notification, this is rather a
peaceful settlement of the dispute, namely that in the end there was no derogation from a
norm of jus cogens.782

192. If after a period of not shorter than three months after the receiving of the notification,
no other parties object to the State making the notification, it may carry out its measures laid
down in the notification, which in case of invalidity or termination on the basis of derogation
from jus cogens will be the legal effects as described in Article 71. In accordance with Article
67 (2) an instrument should be communicated to the other parties declaring the contested
treaty invalid or terminated; the instrument needs to be signed by the head of State, head of
government or minister for foreign affairs, and if not, the representative of the State
communicating it may be called upon to produce full powers.783 The period of response may
be lengthened or shortened by the notifying State, but in the latter case it has to motivate the
time period by demonstrating that there are urgent reasons for laying down a period shorter
than three months.784 The Convention remains silent on what urgent reasons may be.
Nevertheless, in case of flagrant breach of jus cogens the protection of the peremptory norm,
which after all enshrines a value or interest deemed essential by the international community,
from derogation would be a sufficient reason to decrease the time period. For instance, in case
of a treaty organizing an aggressive war against a third State, a period shorter than three
months may prevent the attack from occurring.

193. The other parties to the treaty will likely object to the notification, namely to the ground
and the proposed measure therein.785 It is not necessary that all parties that have received the

of Treaties, Leiden, Nijhoff, 2009, 848; F. CAPOTORTI, “L’extinction et la suspension des traités”, Recueil des
Cours 1971-III, 572.
781
Ibid., 170.
782
See Article 65 (3) Vienna Convention on the Law of Treaties (1969): if the other parties have made
objections against the notification, the latter would have had effect and the parties are obliged to settle their
disputes peacefully in accordance with Article 33 Charter of the United Nations. If then the notifying States
retracts its position a settlement of the dispute has been found, not a retraction of the notification. If the dispute
would be brought before a Court, a State can always opt to discontinue the proceedings and find an amicable
settlement outside the Court: F. CAPOTORTI, “L’extinction et la suspension des traités”, Recueil des Cours 1971-
III, 572, note 26.
783
Interestingly, upon a literal interpretation of Article 67 (2) the instrument needs not to be in writing and
nowhere does it require a signature: the production of full power only relates to the authority given to terminate
a treaty, not to the requirement that the instrument needs to be signed: M.E. VILLIGER, Commentary on the 1969
Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009, 842.
784
Article 65 (2) Vienna Convention on the Law of Treaties (1969); E.P. NICOLOUDIS, La nullité de jus cogens
et le développement contemporain du droit international public, Athens, Éditions Papazissis, 1974, 174-175;
M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009,
809; F. CAPOTORTI, “L’extinction et la suspension des traités”, Recueil des Cours 1971-III, 570-571.
785
A State will not be considered as objecting if it only reacts to the reasons given in the notification or when it
merely gives its views on the notification without attaching to this any legal consequences: S. ROSENNE, “The
Settlement of Treaty Disputes under the Vienna Convention of 1969”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1971, 39. According to ROZAKIS a party may also object to the reasons in the
notification: C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland,
1976, 156; C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974, 178.

178
notification must object, one suffices. Moreover a party which did not receive a notification is
equally entitled to object: Article 65 gives the right to object to all parties to the contested
treaty.786 It is important that the objection is made during the time period laid down in the
notification, not that it is received within that period. Furthermore, the objection needs not to
be in writing.787 If an objection is made, a dispute will have arisen, which the parties have to
settle peacefully by using one of the means listed in Article 33 Charter of the United
Nations.788 At this stage parties can have recourse to judicial settlement, for instance if all
parties have accepted the compulsory jurisdiction of the International Court of Justice, and
arbitration, but they are not yet obliged to, unless they have concluded a previous convention
in which they undertook to settle all their disputes by judicial settlement or arbitration.789 The
International Law Commission thought it not necessary to provide for a further step to settle
the dispute of invalidity and termination of a treaty.790 Consequently, since the application of
the means of dispute settlement in Article 33 Charter of the United Nations depends on the
will of the parties to the dispute in the end the dispute might not been solved. Therefore, some
States sought to introduce a compulsory settlement of disputes if peaceful settlement by an
understanding between the parties would not succeed. The result is Article 66 (a) of the

786
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 170-171; M.E. VILLIGER, Commentary on the 1969 Vienna Convention on
the Law of Treaties, Leiden, Nijhoff, 2009, 808.
787
Article 67 (1) only requires the notification to be in writing; Article 68 refers to the notification and other
instruments of Article 65 and 67 which may be revoked before they have taken effect. Yet, from the word
“instruments” one cannot deduce that an objection necessarily has to be in writing: objections can be in writing,
but this is not necessarily so. Furthermore, it seems that “instruments” refers to declarations of denunciation,
termination and invalidity of Article 67 (2), which are also referred to in Article 65 (2): see: “Draft Articles on
the Law of Treaties with Commentaries”, Yearbook of the International Law Commission 1966, Vol. II, 264; D.
ROUGET, “Article 68 – Convention de 1969”, in O. CORTEN and P. KLEIN, Les conventions de Vienne sur le
droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2474-2475 (limiting Article 68 to
notifications and instruments terminating the treaty). Moreover, once objections have been made, they will
have effect since pursuant to Article 65 (3) in such case parties shall seek a peaceful settlement of the dispute,
thus putting an obligation on the parties. It has also been argued that declarations of invalidity, termination and
suspension always have immediate effects, so that “instruments” in Article 68 refers to objections. Nonetheless,
such declarations may lay down a time period before they become operational, in which time the instruments
may be revoked. For an argument that the objection needs to be in writing: E.P. NICOLOUDIS, La nullité de jus
cogens et le développement contemporain du droit international public, Athens, Éditions Papazissis, 1974, 172;
the author is also of the opinion that objections can be revoked until the International Court of Justice or an
arbitration panel is seized pursuant to Article 66 of the Convention: Ibid.. Special Rapporteur REUTER on the
other hand indicated that objections do not have to fulfil any requirement: REUTER, 1590th Meeting of the
International Law Commission, Yearbook of the International Law Commission 1980, Vol. I, § 39.
788
Article 65 (3) Vienna Convention on the Law of Treaties (1969). Article 67 (2) of the Convention also
applies to Article 65 (3) although the procedure might not have come to an end, so that there is no instrument
invalidating or terminating the treaty; furthermore, if parties have recourse to an arbitration panel or a court
within the twelve months period there is no need for such an instrument: M.E. VILLIGER, Commentary on the
1969 Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009, 842-843. Nevertheless, an instrument to
communicate the invalidity or termination of a treaty can be required if not all States party to the treaty have
been involved in the dispute.
789
Article 65 (4) Vienna Convention on the Law of Treaties (1969). See also: Fisheries Jurisdiction (United
Kingdom v. Iceland), Jurisdiction, Judgment, ICJ Rep. 1973, §§ 44-45.
790
See: Article 62 Draft Articles on the Law of Treaties, “Report of the International Law Commission on the
Work of Its Eighteenth Session”, Yearbook of the International Law Commission 1966, Vol. II, 185.

179
Convention, which provides in case of unresolved disputes791 relating to jus cogens in a
compulsory settlement of the dispute by the International Court of Justice after twelve months
counting from the moment the objection was raised, unless the parties agree to submit the
dispute to arbitration.792 Thus, unless the parties to a dispute agree on arbitration by the actual
conclusion of a compromis,793 the Court will have jurisdiction to settle the issue. In this
respect, a mere written application to the International Court of Justice would suffice to bring
the dispute within the jurisdiction of the Court, even though the other parties to the dispute
may not have previously accepted the Court’s jurisdiction.794 The Court can then pronounce
itself on the application and interpretation of Article 53 and 64 of the Convention and whether
the norm invoked by one of the parties is indeed peremptory. Before the Court third States,
parties to the contested convention which have not been brought before the International
Court of Justice, may intervene and the judgment of the Court binds all parties to the
dispute.795 States other than parties to the treaty may also intervene if pursuant to Article 62
they have a legal interest which may be affected by the decision of the Court. In this respect,
no jurisdictional link between the third State and the Court is required; nonetheless a mere
interest to uphold the law is not sufficient to speak of an affected legal interest.796 A more
complicated issue is whether the judgment also concerns other parties to the treaty who
choose not to intervene. Concerning this issue, legally, pursuant to Article 59 Statute of the
International Court of Justice the judgments of the Court only bind the parties in the dispute
and nowhere in the wordings of Article 66 (a) is it suggested that decisions of the Court on jus
cogens bind the non-intervening parties to the treaty. On the other hand, if the Court finds a
treaty in conflict with a peremptory norm the treaty will have to be voided or terminated and
this effect is not limited to the parties before the Court.797 If the Court or the arbitration panel
finds that the treaty is indeed in contravention with jus cogens, the parties will have to
implement the legal consequences of Article 71 to the treaty and cease its application.798

791
A dispute will be unresolved if the parties are in a deadlock or when a court or arbitration panel has ruled a
case inadmissible: M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden,
Nijhoff, 2009, 819; contra: C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974,
182; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 170.
792
If a party has pursuant to Article 65 (3) resorted to arbitration, which has failed, it can after twelve months
have recourse to the International Court of Justice: M.E. VILLIGER, Commentary on the 1969 Vienna
Convention on the Law of Treaties, Leiden, Nijhoff, 2009, 820.
793
Ibid, 820; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland,
1976, 174-175.
794
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 182
795
Article 63 Statute of the International Court of Justice (1945).
796
Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Application to Intervene, Judgment, ICJ Rep. 1981, §
33; Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application to Intervene, Judgment,
ICJ Rep. 1990, § 76 and § 82 (mere interest in the application of general rules is not sufficient) and § 100
(jurisdictional link).
797
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 184; M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the
Law of Treaties, Leiden, Nijhoff, 2009, 821.
798
M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden, Nijhoff, 2009,
821; CAPOTORTI is of the opinion that the judgment of the Court as such suffices to eliminate or terminate the
treaty: F. CAPOTORTI, “L’extinction et la suspension des traités”, Recueil des Cours 1971-III, 577.

180
194. During the whole procedure the treaty remains in force pursuant to Article 42, 69 and
73. Indeed parties can only invoke grounds of invalidity or termination, not merely end the
treaty by initiating the procedure; the treaty will only cease to apply after the termination of
the procedure.799 Of course, if the dispute is brought before the International Court of Justice,
it has the power to adopt provisional measures pursuant to Article 41 of its Statute provided
that the rights of one of the parties are at stake, not merely the interest of the international
community.800 Such power is normally also granted to arbitration panels.801

B. Critical analysis of the procedure

195. The procedure described above was the result of a political compromise at the end of
the conference and its major merit is that the adoption of the procedure provided for in Article
65 and 66 of the Convention saved the Vienna Conference. Nevertheless, the procedure raises
some serious difficulties for the issue of jus cogens. Firstly, the Vienna Conference adopted a
procedure without taking into account the specific nature of norms of jus cogens. In
particular, the invalidity on the basis of jus cogens is the only ground not based upon a defect
in the will of one of the parties.802 Rather, it is inconsistency of the object of the treaty with a
peremptory norm, as such an objective ground for invalidity, which leads to invalidity (or
termination) of the convention. Since such norms are adopted by the international community
of States as a whole to protect the interests and values that community considers of the
highest importance, a treaty derogating from jus cogens is not merely an issue between the
parties, which is the case with most other grounds for invalidity,803 but an issue for the
international community of States which should be able to invoke collectively or unilaterally
the invalidity of treaties. Nonetheless, the Vienna Convention only permits parties to the
contested treaty to invoke the nullity or termination of a treaty derogating from jus cogens.804

799
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 179; M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the
Law of Treaties, Leiden, Nijhoff, 2009, 806-807; C. ROZAKIS, The Concept of Jus Cogens in the Law of
Treaties, Amsterdam, North-Holland, 1976, 114 and 165; F. CAPOTORTI, “L’extinction et la suspension des
traités”, Recueil des Cours 1971-III, 576; S. ROSENNE, “The Settlement of Treaty Disputes under the Vienna
Convention of 1969”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1971, 44.
800
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 106-
107; C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974, 184.
801
S. ROSENNE, “The Settlement of Treaty Disputes under the Vienna Convention of 1969”, Zeitschrift für
öffentliches Recht und Völkerrecht 1971, 44.
802
C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974-1975, 171.
803
See in this respect: Ceylon, 22nd Plenary Meeting, United Nations Conference on the Law of Treaties,
Official Records, Vol. II, 1970, §§ 58-59
804
Supra, No. 190. ORAKHELASHVILI maintains that also other States can invoke the procedure of the
Convention with regard to treaties inconsistent with jus cogens since nothing in the text or the preparatory
works excludes this possibility and since Article 66 only contains a limitation ratione materiae: A.
ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 142-143
and 514-516. Nevertheless, from Article 2 of the Convention it is clear that the term “parties” refers to parties
to the treaty. Furthermore, Article 65 and 66, despite their different origin are linked: M. COSNARD, “Article 65
– Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de Vienne sur le droit des traités,
Commentaire article par article, Brussels, Bruylant, 2006, 2352; A.L. PAULUS, “Jus Cogens in a Time of
Hegemony and Fragmentation, An Attempt at a Re-appraisal”, Nordic Journal of International Law 2005, 304-
305. Moreover, the Convention has established for the first phase of the dispute only one procedure for all cases

181
196. As the procedure stands now, it would likely to be completely ineffective, especially in
the most serious case of derogation from a pre-existing peremptory norm.805 In such case the
parties are likely willingly derogating from the peremptory norm, but only these parties are
able to invoke the invalidity of the treaty. Of course, it might be possible that one of the
parties does challenge the validity of a treaty, for instance after a regime change, but in the
meantime the damage to the international community may have already occurred. Naturally,
expanding the scope of subjects having the right to invoke the invalidity of the treaty brings
along the risk of political abuse and the launching of frivolous applications.806 Nevertheless,
the international reality contradicts or at least minimizes such risks. For instance, States have
rarely used the complaint procedures in human rights treaties;807 Article IX Convention on the
Prevention and Punishment of the Crime of Genocide would have allowed all State parties to
launch an application against the former Yugoslavia for breach of the Genocide Convention,
yet only Bosnia and Herzegovina and Croatia have done so. A fortiori, it can be doubted that
States would launch procedures to void treaties. Therefore, a different procedure for invalidity
on the basis of inconsistency with peremptory norms should have been devised, which should
at least have opted for allowing the parties to the Vienna Convention to raise the issue of
invalidity for derogating of jus cogens. Nevertheless, the fact that no other State than the
parties to the treaty may invoke the invalidity of the treaty does not entail that voidness on the
basis of jus cogens when established does not have effects erga omnes. Since the treaty is
void or has become void because it has infringed a norm of jus cogens, a norm recognized by
the whole international community, it cannot (anymore) be relied upon by other States. For
instance, a treaty between two States wrongly interpreting an obligation in a multilateral
convention, which has acquired jus cogens status, cannot be relied upon by other States or an
international judicial body to interpret the multilateral convention.

197. A second remark is that Articles 65 and 66 have put the substantial aspect of Article 53
in a procedural straightjacket. Article 53 does not merely lay down a rule of recognition, but
also establishes the invalidity of treaties conflicting with norms which via Article 53 of the
Convention have been identified as peremptory norms. A substantive rule can exist without
procedural norms to enforce it and remain valid even if the legal procedures are faulty or
lacking.808 From Article 42 of the Convention it is however clear that treaties remain in force
until they have been declared invalid or terminated in accordance with the Vienna Convention
on the Law of Treaties, through the procedure of Article 65 and 66. Thereby the Vienna
Convention has subjected the substantial rules on invalidity, termination and suspension to

of invalidity, termination or suspension of a treaty. In addition, Article 66 (2) also refers to the notion “parties to
the dispute”; consequently, because of the link between Article 65 and 66 and the similar reference to “parties
to the dispute” for all disputes concerning the invalidity and termination of the treaty the interpretation of
ORAKHELASHVILI would lead to the result that third States could invoke all grounds of invalidity, termination or
suspension for treaties to which they are not a party to.
805
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 294-295; C.L. ROZAKIS, “The Law on Invalidity of
Treaties”, Archiv für Völkerrecht 1974, 171-172.
806
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 164-165.
807
E.-U. PETERSMANN, “Constitutionalism and International Adjudication: How to Constitutionalize the U.N.
Dispute Settlement System”, New York University Journal of International Law and Politics 1998-1999, 783.
808
AGO, 845th Meeting of the International Law Commission, Yearbook of the International Law Commission
1966, Vol. I, § 38.

182
procedural rules.809 Consequently, not only can the invalidity of the treaty solely be invoked
by the parties to it, a treaty clearly conflicting with a peremptory norm will remain in force
until the end of the lengthy procedure, although according to the substantive rule of Article 53
and Article 64 such treaties are void ab initio or become void and terminate from the moment
a new peremptory norm has arisen. Therefore, this contradiction begs the question whether
the procedure is rather declarative or constitutive. If the procedure is constitutive for the
invalidity or termination to arise then there is a necessary link between the procedure and the
grounds of invalidating, terminating or suspending the treaty. In this respect, some States have
declared that Article 53 and 64 are inextricably linked to Article 66 (a); others have stated that
reservations to Article 66 would lead to the inapplicability of Articles 53 and 64 because of
the inseparability of the substantive and procedural provisions.810 Nonetheless, the procedure
is considered declarative rather than constitutive.811 Whereas the concept of jus cogens has
become part of customary international law, Article 65 and 66 have no customary status.812 It
would be hard to maintain that the compulsory settlement of disputes is part and parcel of the
definition of a peremptory norm; there is a link between the two, but this only a political link
not a strictly legal link.813 States not party to the Vienna Convention can also invoke the
invalidity of a treaty because of derogation of a norm of jus cogens, without having to accept

809
S. ROSENNE, “Settlement of Treaty Disputes under the Vienna Convention of 1969”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1971, 26; T.O. ELIAS, “Problems concerning the Validity of
Treaties”, Recueil des Cours 1971-III, 345; M.E. VILLIGER, Commentary on the 1969 Vienna Convention on the
Law of Treaties, Leiden, Nijhoff, 2009, 806; F. CAPOTORTI, “L’extinction et la suspension des traits”, Recueil
des Cours 1971-III, 446.
810
Reservation of Belgium, Reservation of Denmark, Reservation of Finland, Reservation of Portugal,
Objection of Egypt, Objection of Japan, Objection of Germany, Objection of the Netherlands, Objection of New
Zealand, Objection of Sweden, Objection of the United Kingdom, Objection of the United States, at
http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&chapter=23&Temp=mt
dsg3&lang=en.
811
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 142;
E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit international public,
Athens, Éditions Papazissis, 1974, 184; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot,
1992, 325. Contra: C.L. ROZAKIS, “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974, 171; C.L.
ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 109 and 114.
This also flows from the difference in wording between Article 69 and 71 on the consequences of invalidity: the
former reads: “A treaty the invalidity which is established under the present convention”, whereas the latter
reads: “In case of a treaty which is void under Article 53”.
812
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 125; European Court of Justice, A. Racke
GmbH & Co. v. Hauptzollamt Mainz, Case No. C-162/96, Judgment, 16 June 1998, European Court Reports
1998, I-3655, §§ 58-59; M. COSNARD, “Article 65 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.),
Les conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006,
2353-2359; J. VERHOEVEN, “Jus Cogens and Reservations or ‘Counterreservations’ to the Jurisdiction of the
International Court of Justice”, in K. WELLENS (ed.), International Law: Theory and Practice, Essays in
Honour of Eric Suy, Den Haag, Nijhoff, 1998, 198.
813
M. COSNARD, “Article 65 – Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de
Vienne sur le droit des traités, Commentaire article par article, Brussels, Bruylant, 2006, 2355. According to
RUIZ FABRI the link between Article 53 and 64 and Article 66 is logical since jus cogens is an objective ground
for invalidity or termination and hence should be decided by an impartial entity: H. RUIZ FABRI, “Article 66 –
Convention de 1969”, in O. CORTEN and P. KLEIN (eds.), Les conventions de Vienne sur le droit des traités,
Commentaire article par article, Brussels, Bruylant, 2006, 2425, note 122.

183
the compulsory jurisdiction of the Court.814 Moreover, the legality of some of these objections
can be doubted: if the objections go further than objecting to the reservation concerning the
compulsory jurisdiction of the Court, for instance by declaring Article 53 and 64 inapplicable,
the objections are partially reservations. Since reservations to Article 53 and 64 would
undermine jus cogens such reservations are invalid.815

198. In conclusion, the procedure established at the Vienna Conference has in effect led to a
complete ineffectiveness of the principle of jus cogens, especially by limiting the invocation
of this ground for invalidity or termination by the parties to the treaty. The reasons offered at
the conference to introduce the procedure are no longer convincing. First, the reason that
procedures were necessary for safeguarding the principle of pacta sunt servanda does not
apply to invalidity because of infringement of jus cogens since in such a case there was never
a treaty or the treaty has become void. Consequently, there is no pacta. 816 The second reason,
the novelty of the ground of jus cogens, justified the introduction of a procedure to settle
disputes, especially since it was unclear which norms were peremptory in character. However,
jus cogens has not appeared to constitute a threat to the stability of treaties it was feared to be;
moreover, it has become more clear which norms are considered peremptory. Furthermore,
States invoking arbitrarily a ground of invalidity or fictitious peremptory norms will lose their
credibility and reputation in the international community.817 Nevertheless, some form of
dispute settlement will remain indispensable since States might in good faith dispute the
existence of peremptory norms, their scope or since new peremptory norms may arise.
However, it would have been better to expand the scope of States able to invoke the invalidity
or termination of a treaty and to provide for a more rapid dispute settlement procedure by
immediately seizing the International Court of Justice which could take provisional measures
to safeguard the interests of the parties and the international community, although admittedly
there will be no political will for these changes. Consequently, parties to the Vienna
Convention will have to deal with an ineffective means of dispute settlement for invalidity or
termination on the ground of jus cogens, which precisely risks entailing unilateralism and
disregarding the procedure.

814
J. VERHOEVEN, “Jus Cogens and Reservations or ‘Counterreservations’ to the Jurisdiction of the
International Court of Justice”, in K. WELLENS (ed.), International Law: Theory and Practice, Essays in
Honour of Eric Suy, Den Haag, Nijhoff, 1998, 202.
815
Ibid., 204-205.
816
Cuba, 68th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, §§41-45.
817
A point aptly made by Myanmar, then Burma: Burma, 25th Plenary Meeting, United Nations Conference on
the Law of Treaties, Official Records, Vol. II, 1970, § 22.

184
SECTION.3. LEGAL CONSEQUENCES OF NORMS OF JUS COGENS OUTSIDE THE LAW OF
TREATIES

§1. Invalidity of other norms of international law

199. Although jus cogens was initially introduced in the law of treaties, it is now generally
agreed that it prohibits and voids any legal act which would go against peremptory norms.818
Peremptory norms limit the law-making capacity of international subjects, in particular States,
by protecting certain norms from derogation, or the creation of norms by a limited group of
law-making subjects.819 Therefore, no method of law-creation should undermine the
community interest. Indeed, the focal point is the protection of community interests and
values, which has led to the introduction of the concept of jus cogens in the law of treaties.
Consequently, jus cogens is an emanation of a principle of international law that some
interests and values are of such importance that no law-making activity of a limited group of
international subjects is tolerated.820 Hence, some scholars have used the term international
ordre public to encapsulate all instances of invalidity due to inconsistency with norms
reflecting the highest community values.821 Nonetheless, since jus cogens is part of general
international law and its definition independent from the type of law-making which is
contemplated, the distinction is as such not necessary.

200. Despite widespread agreement that peremptory norms do not solely operate in the law
of treaties, the issue is not as obvious as it appears, especially in the field of unilateral acts
which are not generally considered to be able to derogate from peremptory norms; they either
respect or violate jus cogens.822 In other words, the inconsistency between unilateral acts and

818
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, § 153;
Inter-American Court on Human Rights, Juridical Condition and Rights of the Undocumented Migrants,
Advisory Opinion OC-18/03, 17 September 2003, Series A, No. 18, § 99; European Court of First Instance,
Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T-306/01, Judgment, 21
September 2005, European Court Reports 2005, II-3626, § 277; Id., Kadi v. Council and Commission, Case T-
315/01, Judgment, 21 September 2005, European Court Reports 2005, II-3724, § 226; L. HANNIKAINEN,
Peremptory Norms in International Law: Historical Development, Criteria, Present Status, Helsinki,
Lakimiesliiton Kustannus, 1988, 7 and 9; E.P. NICOLOUDIS La nullité de jus cogens et le développement
contemporain du droit international public, Athens, Éditions Papazissis, 1974, 134; R.Y. JENNINGS, “General
Course on Principles of International Law”, Recueil des Cours 1967-II, 564; J. ALLAIN, “The Jus Cogens
Nature of Non-refoulement”, International Journal of Refugee Law 2002, 535; A. GÓMEZ ROBLEDO, “Le ius
cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours 1981-III, 194-196; C.A. FORD,
“Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 146; J. CRAWFORD, “The Criteria
for Statehood in International Law”, British Yearbook of International Law 1976-1977, 147; A.
ORAKHELASHVILI, “International Public Order and the International Court’s Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, Archiv des Völkerrecht
2005, 243; R. KOLB, “Observation sur l’évolution du concept de jus cogens”, Revue Générale de Droit
International Public 2009, 844.
819
Supra, No. 128.
820
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 205.
821
E. SUY, “New Normativity in the International Community? Discussion”, in A. CASSESE and J.H.H. WEILER
(eds.), Change and Stability in International Law-Making, Berlin, de Gruyter, 1988, 97; H. MOSLER, “The
International Society as a Legal Community”, Recueil des Cours 1974-IV, 35-36; H. MOSLER, “Völkerrecht als
Rechtsordnung”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1976, 46.
822
P. WEIL, “Le droit international en quête de son identité: Cours général de droit international public”,
Recueil des Cours 1992-VI, 261; K. MAREK, “Contribution à l’étude du ius cogens en droit international”, in

185
peremptory norms is a problem of international responsibility not of validity, and the two
issues should not be conflated. In the following sections I will look more closely at the
problem of inconsistency of unilateral acts with peremptory norms, but first I will address the
normative conflict between peremptory norms on the one hand and customary international
law and general principles of law.

A. Conflicts between peremptory norms and customary international law and general
principles

201. At first sight it seems evident that a custom cannot derogate from peremptory norms
since due to the goal of jus cogens norms, the limitation of the law-making powers of
international subjects in order to protect a community interest, it would be absurd to void
treaties going against peremptory norms, while at the same time allowing States to create
derogating customs with the same content. Furthermore, it may happen that a particular norm
is laid down in treaty law and is at the same time a customary norm,823 or that some States
may be bound by the customary norm, whereas other are bound by an identical conventional
norm. However, the question arises whether a customary norm can emerge against an existent
peremptory norm. As has been pointed out, practice going against existing peremptory norms
will have no effect and thus never give rise to a rule of customary international law.824 Since
custom is gradually established and each instance of practice to which an opinio necessitatis
is attached will be void ab initio a conflict between an existing peremptory norm and a
custom will normally never arise.825 However, this is not always the case. Firstly, customary
norms can sometimes quickly arise, with a minimum of practice. It is the density of the
practice which in the end counts.826 For instance, a joint declaration that a customary norm
exists as between the States making the recognition might in particular circumstances
suffice.827 Furthermore, practice might predate the creation of a peremptory norm, whereas
the legal conviction on the binding nature of the practice might arise after the emergence of
the peremptory norm. Thus, a customary rule is formed derogating from an existing

INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international
en hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 441; A. ZIMMERMAN, “Sovereign
Immunity and Violations of International Jus Cogens – Some Critical Remarks”, Michigan Journal of
International Law 1994-1995, 437-438; J. SZTUCKI, Jus Cogens and the Vienna Convention on the Law of
Treaties, A Critical Appraisal, Vienna, Springer, 1974, 67-68.
823
The incorporation of a customary norm in a treaty does not remove its customary character: Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
ICJ Rep. 1986, § 176. Also a conventional right or obligation may become part of customary law: supra No. 44
and Nos. 46-47.
824
Dissenting Opinion Judge ad hoc FERNANDES, Right of Passage over Indian Territory (Portugal v. India),
Merits, Judgment, ICJ Rep. 1960, 135; Judge ad hoc LAUTERPACHT, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and
Montenegro)), Provisional Measures, Order of 13 September 1993, ICJ Rep. 1993, § 100; C.A. FORD,
“Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 146
825
R. KOLB, “Observation sur l’évolution du concept de jus cogens”, Revue Générale de Droit Internationale
Public 2009, 845.
826
Supra, No. 201.
827
See for example UN General Assembly Resolution 96 (I), in which the General Assembly recognizes that
the crime of genocide is part of international law, although the Convention on the Prevention and Punishment of
the Crime of Genocide was not yet adopted.

186
peremptory norm. Of course, one could object that in these instances the joint declaration or
the expression of opinio juris is invalid so that a customary norm never has arisen. However,
this point of view equates cause and effect. Invalidity is the result of an unlawful derogation,
i.e. the law-making activity by a restricted group whose outcome is not deemed to be
permitted since it conflicts with the norm laid down by the whole group. In effect, a norm has
been created which fulfils all the requirements of custom, but is invalidated because of its
unlawful content. Hence, the issue does not concern the question whether a valid custom can
arise in conflict with a peremptory norm – it cannot – but whether derogation from a
peremptory norm through custom is materially possible.828 Whereas the gradual and
decentralized establishing of a contrary custom will not occur – each individual instance of
practice accompanied by opinio necessitatis will be immediately void so that no practice can
be accumulated – the coordinated and collective effort to establish a custom can lead to
derogation through custom. In such instance, the custom becomes invalid and its
consequences should be removed as far as possible by analogy with the law of treaties.829
Furthermore, States have to bring their mutual relations in accordance with the peremptory
norm.830

202. The emergence of a new peremptory norm will invalidate and terminate an existing
customary norm. Evidentially, special customs will be terminated upon the emergence of a
new peremptory norm. A conflict between a general customary norm and a new norm of jus
cogens will not arise since either the peremptory norm is based on a general custom, which
already implies the desuetude of the previous general customary norm, or either it will be
introduced on the basis of a conventional right or obligation, but then the opinio juris cogentis
will have already eliminated the opinio juris of the old general custom, so that one of the
requirements for the existence of custom has disappeared. Situations, legal rights and
obligations created before the custom has become invalid will remain valid, provided the
maintenance of these situations, rights and obligations in itself is not inconsistent with the
new peremptory norm.

203. Concerning general principles of law, it is unlikely that they will derogate from an
established peremptory norm. With regard to general principles of law derived from domestic
law, they are used to fill in lacunae. Yet, if a peremptory norm exists, there is no lacuna and
an international tribunal will apply the peremptory norm and not a general principle of law.
The second category of general principles, general principles inherent in every legal system,
cannot derogate from jus cogens. As previously established, since these principles are
inherent in every legal system, without which there would be no legal system, a conflict
between such principles and peremptory norms part of the international legal system is not
conceivable. Nevertheless, since these principles are general they need to be individuated and
these individuations, whether by international courts, States or other international subjects,
may derogate from a peremptory norm. Yet, then it is the particular individuation and not the

828
In this respect, it has to be pointed out that treaties inconsistent with an existing peremptory norm are also
void ab initio, and have never existed, but by their conclusion the derogation has in fact occurred.
829
As KOLB correctly points out that a rule of general customary law and a peremptory norm can never
coincide: either the general custom is invalid or the peremptory norm has lost its status: R. KOLB, “Observation
sur l’évolution du concept de jus cogens” Revue Générale de Droit Internationale Public 2009, 845.
830
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 215-
216.

187
principle, which is inconsistent with the peremptory norm, but not the principle itself.831
Finally, the third conception of general principles – general principles of international law –
can be equated with either general conventional or general customary norms and would thus
concern derogation from jus cogens by either treaty or custom.

B. Invalidity of unilateral acts

204. In doctrine a lively debate has been held whether unilateral acts going against
peremptory norms could be said to derogate from norms of jus cogens. According to some
scholars unilateral acts could either violate or respect international law, particularly
peremptory norms. Since a single subject of international law is always subjected to
international law, it logically cannot derogate from that law by unilateral act. The proponents
of this view can point to the Spanish version of Article 53 Vienna Convention on the Law of
Treaties, which replaces the notion of derogation with “acuerdo en contrario”.832 Since
differences in authentic texts have to be interpreted in such a way that the different meanings
are reconciled,833 the concept of derogation/dérogation in the English and French version of
Article 53 should be read as “contrary agreements”. On the other hand, this conclusion is not
surprising because Article 53 deals with the nullity of treaties going against a peremptory
norm and because derogation by other means than treaties would fall outside the scope of the
Vienna Convention, which does not address the consequences of unilateral acts or customary
international law going against peremptory norms of general international law. Furthermore,
the definition of Article 53 is as such only limited to the Vienna Convention of the Law of
Treaties. Hence, even if derogation should be equated with “contrary agreements”,834 this
would not bar another meaning of the term outside the framework of the Convention. Other
authors subscribing to the view of jus cogens norms as ordre public have argued that since
derogation by means of particular agreements is not permitted, a fortiori a subject of
international law cannot negatively impact a norm of jus cogens by unilateral acts since they
are hierarchically on a lower scale than treaties. More generally they contend that derogation
is the supplanting of one legal regime by a more specific legal regime by whatever means.835

831
Supra, No. 104.
832
The verb “to derogate” and the noun “derogation” do exist in Spanish, but have a different meaning, namely
to (partially) change an existing law by the legislator: A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa
genèse, sa nature, ses fonctions”, Recueil des Cours 1981-III, 91.
833
Article 33 (4) Vienna Convention on the Law of Treaties (1969).
834
A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature, ses fonctions”, Recueil des Cours
1981-III, 92; K. MAREK, “Contribution à l’étude du ius cogens en droit international”, in INSTITUT
UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en
hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 458; P. WEIL, “Le droit international
en quête de son identité: Cours général de droit international”, Recuil des Cours 1992-VI, 281-282.
835
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 96; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003, 18;
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 73;
R.St.J. MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Journal of
International Law 1987, 136; E. SUY, “The Concept of Jus Cogens in Public International Law”, in CARNEGIE
ENDOWMENT FOR INTERNATIONAL PEACE, Conference on International Law, Lagonissi (Greece), April 3-8,
1966, Papers and Proceedings, the Concept of Jus Cogens in International Law, Geneva, Carnegie Endowment
for International Peace, 1967, 75; SUY did however later change his view on unilateral acts and jus cogens: he
confined jus cogens to the law of treaties, while siding with MOSLER on the existence of an international public

188
205. The discussion can be resolved by making a distinction between material unilateral acts
and unilateral acts which intend to create legal effects.836 The latter, unilateral juridical acts
can be defined as unilateral – either by a sole or a collectivity of international subjects –
manifestations of will to which the international legal order attaches consequences
corresponding to the expressed will.837 The first category are juridical facts, acts or situations
to which the legal system attaches some consequences,838 and can only respect or violate
peremptory norms: they are either lawful or unlawful. For instance, it is rather absurd to speak
of the normative validity of gross human rights violations, for example genocide, since the
perpetrators typically do not claim that these acts have law-making effects.839 Such unilateral
acts have no law-making effects and thus it is pointless to speak of the validity of such acts. In
this respect the peremptory character of a norm is not into play; whether peremptory norms or
not, the consequences will be regulated by the law on State responsibility, which provides for
reparation, preferably in the form of restitution if materially possible. For instance, the arrest
and detention of a diplomat will violate international law and the diplomat will have to be set
free, regardless whether the rules concerning diplomatic immunity are jus cogens. Concerning
unilateral acts it has been held that national legislation, administrative decisions and
judgments violating peremptory norms have no legal value.840 However, such acts are in the
first place breaches of international law, not necessarily derogations which have to be
declared void. In principle, national acts are facts under international law that may breach
international law,841 not normative acts, and can therefore not be declared invalid. Thus, a
national amnesty law for war crimes would violate the duty to prosecute war criminals and as
a matter of reparation will have to be repealed and the perpetrators prosecuted, but will not be
declared invalid under international law.842 Only when such acts are invoked at the
international level to create international rights and obligations, for instance a customary

order which could nullify unilateral acts: E. SUY, “New Normativity in the International Community?
Discussion”, in A. CASSESE and J.H.H. WEILER (eds.), Change and Stability in International Law-Making,
Berlin, de Gruyter, 1988, 97.
836
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 91-93; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003,
17; K. ZEMANEK, “How to Identify Peremptory Norms of International Law”, in P.-M. DUPUY et al. (eds),
Völkerrecht as Wertordnung, Festschrift für Christian Tomuschat, Kehl, Engel, 2006, 1116.
837
E. SUY, Les actes juridiques unilatéraux, Paris, LGDJ, 1962, 22 ; E.P. NICOLOUDIS, La nullité de jus cogens
et le développement contemporain du droit international public, Athens, Éditions Papazissis, 1974, 17-18. SUY
limits the scope of this definition: unilateral acts should be independent, i.e. not depend upon another legal act
such as a treaty, custom or other unilateral act, and not create obligations for third parties: Ibid., 30-33. For the
purpose of the thesis I will however adopt the general definition. The definition excludes intentionally
committed international wrongful acts since the consequences attached to these acts, the making of reparation,
do not correspond to the expressed will.
838
Ibid., 21-22.
839
L. HANNIKAINEN, Peremptory Norms in International Law: Historical Development, Criteria, Present
Status, Helsinki, Lakimiesliiton Kustannus, 1988, 7 and 9; S. TALMON, “The Constitutive versus the
Declaratory Theory of Recognition, Tertium non datur?”, British Yearbook of International Law 2004, 134.
840
E. DE WET, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for
National and International Customary Law”, European Journal of International Law 2004, 97
841
Certain German Interests in Polish Upper Silesia (Germany v. Poland), Merits, Judgment, PCIJ Publ.,
Series A, No. 7, 19.
842
Inter-American Court on Human Rights, Castillo-Páez v. Peru, Reparations and Costs, Judgment, 27
November 1998, Series C, No. 43, § 70 and §§ 105-107; T. MERON, Human Rights Law-making in the United
Nations, Oxford, Clarendon, 1986, 199-200.

189
norm, the issue of derogation will come into play, since at that point actors will claim that the
acts have certain legal consequences at the international level, or if the acts inherently have
legal consequences at the international level.843 Typically, national legislation annexing
territory captured by an illegal use of force or incorporating territory without regard to the
right of self-determination will be invalid; furthermore the incorporation of territory or the
creation of a new State in violation of the right to self-determination or to further a policy of
apartheid is void.844 By annexing territory or creating new States in contradiction to
peremptory norms, States are not merely violating jus cogens, but intend to create a legal
situation at the international level derogating from peremptory norms. The mere occupation of
a territory in violation of the prohibition on the use of force is merely a breach of a
peremptory norm and cannot be declared invalid, but only illegal; however making changes to
that occupied territory for the purpose to change its status is a law-making activity and hence
a derogation.845 Similarly, while the policy of apartheid is a breach of the principle of self-
determination and the prohibition of racial discrimination, the creation of independent
Bantustans to further the policy of apartheid and to negate the people’s right to self-
determination is a law-making enterprise in order to systematically derogate from peremptory
norms.846 In most instances however, national acts will rather qualify as breaches of
peremptory norms, but then the peremptory nature of the norm will not be significant since

843
In Prosecutor v. Furundžija the International Criminal Tribunal for the Former Yugoslavia held that
peremptory norms serve at the international level to de-legitimize any national act and therefore they cannot be
recognized: Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, §
155. Hence, jus cogens is not directly concerned with the invalidity of national acts, but will only play a role if
other States or international subjects would rely on national acts. In any event, the national act has to be
repealed as a matter of reparation in the form of a restitution or by analogy to Article 71 Vienna Convention on
the Law of Treaties that requires States to bring their relations in conformity with jus cogens.
844
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 218
et seq.
845
For instance, changes made by Israel to the Occupied Palestinian Territory and the city of Jerusalem have
been declared null and void by the Security Council: Security Council Resolution 298 (1971), § 3; Security
Council Resolution 478 (1980), § 3. The same has been held for the Golan Heights: Security Council
Resolution 497 (1981), § 1. When the Security Council (and the General Assembly) uses the words void or
invalid, they typically refer to breaches of fundamental norms belonging to jus cogens: J. DUGARD, Recognition
and the United Nations, Cambridge, Grotius, 1987, 130. The International Court of Justice concluded that all
Israeli actions have not affected the status of the territories so that despite Israeli legislative acts they remain
occupied territories: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Rep. 2004, § 78. The issue of invalidity did not arise in the occupation of part of the
Democratic Republic of Congo by Uganda since Uganda did not intend to incorporate the territory: Armed
Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ Rep. 2005,
§ 167 et seq. Similarly, the Security Council called the proclamation of the Turkish Republic of Northern
Cyprus invalid: Security Council Resolution 541 (1983), § 2; Security Council Resolution 550 (1984), § 2; the
European Court on Human Rights followed suit by imputing human rights violations in the Turkish occupied
territory in Cyprus to Turkey and not to the Turkish Republic of Northern Cyprus, implying that it did not
recognize the creation of the Turkish Republic of Northern Cyprus: Loizidou v. Turkey, Application No.
15318/89, Merits and Just Satisfaction, Judgment, 18 December 1996, Reports of Judgments and Decisions
1996-VI, No. 26, §§ 39-44. Concerning the occupation of Kuwait by Iraq, the Security Council declared this to
be without legal validity and null and void: Security Council Resolution 672 (1990), § 1.
846
J. DUGARD, Recognition and the United Nations, Cambridge, Grotius, 1987, 102-103, 156-162.

190
international law does not make a distinction between the legal consequences of a breach of
peremptory norms and other norms of international law: both are equally binding.847

206. The second category, while also violating jus cogens, can however derogate from such
norms, since they create legally binding effects, which if not declared void would undermine
peremptory norms. Not only has their legality come into play, but equally their validity. A
typical example is a resolution of the Security Council, which has to respect peremptory
norms.848 For instance, a Security Council resolution, depriving individuals of certain human
rights in the framework of the fight against terrorism might violate jus cogens. In this respect,
the European Court of First Instance has recognized that the right of access to a court is a
peremptory norm, which the Security Council should respect.849 Equally, a Security Council
resolution recognizing the results of an aggressive war would be contrary to jus cogens.850 In
any event, the International Law Commission has accepted that certain unilateral acts, namely
unilateral acts “taking the form of formal declarations formulated by a State with the intent to
create obligations under international laws”, will be void if they conflict with a peremptory
norm of general international law.851 It has to be noted that the Guiding Principles only apply
to unilateral acts creating obligations, for instance promises, but not to other unilateral acts
which though not creating obligations, have legal effects such as protests. Yet, the limited
scope of the Guiding Principles does not entail that the latter category of unilateral acts cannot
derogate from jus cogens norms: if the legal effects could be later invoked by other States
against the State making the unilateral act, this would undermine the peremptory norm and
hence constitute an impermissible derogation.

207. Related to the foregoing is the issue of the legal value of practice inconsistent with a
peremptory norm and the creation of a new rule of peremptory international law. It has been

847
D. SHELTON, “Normative Hierarchy in International Law”, American Journal of International Law 2006,
304.
848
Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, § 296; European
Court of First Instance, Kadi v. Council and Commission, Case T-315/01, Judgment, 21 September 2005,
European Court Reports 2005, II-3725, § 230; Id., Yusuf and Al Barakaat International Foundation v. Council
and Commission, Case T-306/01, Judgment, 21 September 2005, European Court Reports 2005, II-3627, § 281;
Court of Appeal, R (on the application of Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327, §
71; Tribunal fédéral, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November 2007, § 7;
Separate Opinion Judge ad hoc LAUTERPACHT, Application of The Convention on the Prevention and
Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),
Provisional Measures, Order of 13 September 1993, ICJ Rep. 1993, § 100; A. ORAKHELASHVILI, “The Impact
of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions”,
European Journal of International Law 2005, 59 and f; M. PAYANDEH, “Rechtscontrolle des UN-
Sicherheitsrates durch staatliche und überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht 2006, 46-47; H.P. AUST and N. NASKE, “Rechtsschutz gegen den UN-Sicherheitsrat durch
europäische Gerichte? Die Rechtsprechung des EuG zur Umsetzung ‘gezielter Sanktionen’ aus dem
Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht 2006, 602.
849
European Court of First Instance, Yusuf and Al Barakaat International Foundation v. Council and
Commission, Case T-306/01, Judgment, 21 September 2005, European Court Reports 2005, II-3626, §§ 277-
284 juncto §§ 332 et seq; Id., Kadi v. Council and Commission, Case T-315/01, Judgment, 21 September 2005,
European Court Reports 2005, §§ 226-232 juncto 277 et seq.
850
A. ORAKHELASHVILI, “The Impact of Peremptory Norms on the Interpretation and Application of United
Nations Security Council Resolutions”, European Journal of International Law 2005, 72.
851
Guiding Principle 8, “Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating
Legal Obligations, with Commentaries”, UN Doc. A/61/10, 369.

191
argued that violations of an existing rule of customary international law carries with it the
seed of a new rule of customary international law.852 Previously I have however submitted
that inconsistent practice is in the first place to be regarded as a violation of the existing
customary rule; only if the practice is accompanied with an opinio necessitatis, subsequently
accepted by other States, can this conduct give rise to a change in the existing rule or the
creation of a new rule of customary international law because of the gradual erosion of the
communis opinio juris.853 Could the same happen with peremptory norms? Put otherwise,
might conduct inconsistent with a peremptory norm have the legal consequence of eating
away the acceptance of the international community of States as a whole that a norm belongs
to jus cogens? That there does not exist a communis opinio juris cogentis anymore? It is
contended that such isolated conduct is to be regarded as a breach of the peremptory norm, as
was the case with an ordinary norm of customary international law. Moreover, even if such
conduct is accompanied by declarations from which an opinio necessitatis cogentis can be
deduced, the conduct cannot be considered as giving rise to legal consequences, i.e. to have
precedential value, since this would constitute an undermining of the existing peremptory
norm and hence constitute derogation. Furthermore, a gradual building up of a new opinio
juris cogentis is impossible, since this would amount to the creation of a separate legal regime
alongside the existing peremptory norm and constitute derogation. Hence, inconsistent
conduct will not only be illegal, but will be devoid of any legal consequence, since if such
conduct claims to have legal consequences, it would constitute derogation and becomes void
ab initio.854

208. Despite the theoretically clear distinction between material unilateral acts, which
merely constitute violations of peremptory norms, and unilateral acts with the intention to
create binding legal effects, the distinction might not be that clear in reality. In international
law the illegality of the conduct might be removed by the subsequent acceptance of the victim
State or of the international community. The State victim of an international wrongful act
might consent to or acquiesce in the breach of the international obligation afterwards. Also,
third States might recognize the situation resulting from the initial violation of international
law. But then it is not the breach itself which raises the issue of invalidity, but its validation
through recognition or acquiescence or any other means of validation. While validation of
breaches of international law is accepted for violations of bilaterally owed rights and
obligations, which in the end only involve the interests of the States affected by the violation,
the same cannot be accepted for violations of norms of jus cogens.855 Hence, for violations of
jus cogens, the adagio “ex factis jus oritur” does not apply.

852
A. D’AMATO, The Concept of Custom in International Law, London, Ithaca, 1971, 97-98.
853
Supra, No. 71.
854
See: Dissenting Opinion Judge ad hoc FERNANDES, Right of Passage over Indian Territory (Portugal v.
India), Merits, Judgment, ICJ Rep. 1960, 135; G.A. CHRISTENSON, “Jus Cogens: Guarding Interest
Fundamental to the International Society”, Virginia Journal of International Law 1988, 611-614; K. PARKER
and L.B. NEYLON, “Jus Cogens: Compelling the Law of Human Rights”, Hastings International &
Comparative Law Review 1988-1989, 418-419; A.M. WEISBURD, “The Emptiness of the Concept of Jus
Cogens, As Illustrated by the War in Bosnia-Herzegovina, Michigan Journal of International Law 1995-1996,
19.
855
G.G. FITZMAURICE, “The General Principles of International Law Considered from the Standpoint of the
Rule of Law”, Recueil des Cours 1957-II, 120; I. BROWNLIE, Principles of Public International Law, Oxford,
Oxford University Press, 2003, 63, 67, 85-86, 615; A. ORAKHELASHVILI, Peremptory Norms in International

192
209. Validation mechanisms, such as recognition, acquiescence, waiver, and prescription are
all based on good faith and typically operate in inter-se relations.856 Validation might occur
through recognition or a unilateral manifestation of will of a subject of international law,
acknowledging an existing situation and with the purpose of accepting that situation as in
accordance with law.857 Consequently, recognition establishes an agreement creating a
separate legal regime between the State having committed the breach and the recognizing
State, undermining the peremptory norm. 858 In fact, it can be argued that recognition is a sort
of legislative process in which the law is brought into accordance with the existing situation,
instead of the reverse.859 This would constitute a derogation, and therefore recognition of
violations of jus cogens norms cannot have any validity or produce legal effects.860 Hence, the
recognition of a State which has been established in violation of a peremptory norm would
not be valid and have no effect on the legal validity of the created State.861 The only form of
recognition of a breach of a peremptory norm which would be allowed is the recognition by
the international community of States as a whole, since it is in the end upon the international
community to determine whether an act is in breach of jus cogens. However, although such
recognition is theoretically possible, it is unlikely to arise in reality. In any event, if it would
occur, it would in fact amount to a modification of a previous peremptory norm, namely that
the norm of jus cogens which would be applicable to the situation is no longer recognized by
the international community as applying to these situations. States may also not validate
breaches of peremptory norms by waiver, i.e., an expression of will by which a subject of law
renounces a subjective right without any intervention of will by a third party,862 of a claim
resulting from a violation of a jus cogens norm. Peremptory norms are established by the
international community of States as a whole and it is not upon the injured State to supplant
the peremptory norm by declaring that it condones the violations of peremptory norms in
bilateral relations between it and the State committing the breach.863 Evidently, the
renunciation of jus cogens norms in advance would not be valid since in such case a State
declares that it is not bound by the peremptory norm, which constitutes a derogation because
by renouncing the peremptory norm the State attempts to change the legal framework
applicable to it. Similarly, acquiescence to violations of peremptory norms, or the tacit
acceptance by one’s conduct or omissions of the violation of jus cogens would be invalid:
acquiescence is in fact the silent equivalent of recognition and therefore constitutes derogation
in the same way as recognition. Furthermore, it is theoretically conceivable that the inaction
of the international community to breaches of jus cogens would lead to a modification of the

Law, Oxford, Oxford University Press, 2006, 362; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker &
Humblot, 1992, 335.
856
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 368.
857
E. SUY, Les actes juridiques unilatéraux, Paris, LDGJ, 1962, 191.
858
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 285.
859
J. DUGARD, Recognition and the United Nations, Cambridge, Grotius, 1987, 134.
860
Special Rapporteur RODRÍGUEZ-CEDEÑO, “Sixth Report on Unilateral Acts of States”, UN Doc. A/CN.4/534,
19.
861
Commission d'Arbitrage de la Conférence européenne pour la paix en Yougoslavie, Avis No. 10, Revue
Générale de Droit International Public 1993, 595; see also: The Republica Srpska v. The Federation of Bosnia
and Herzegovina, Arbitration for the Brcko Area, Arbitral Award, 14 February 1997, 36 International Legal
Materials 1997, 422, § 77.
862
E. SUY, Les actes juridiques unilatéraux, Paris, LDGJ, 1962, 156.
863
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”, Yearbook
of the International Law Commission 2001, Vol. II, Part 2, 115 and 122.

193
peremptory norm,864 although this would be hard to prove since it would require that the
silence of the international community can unambiguously be clarified as an acceptance that
the particular breach is validated by an amendment of the previous peremptory norm.865 In
other words, the inactivity should be qualified as an opinio juris cogentis. Finally, breaches of
jus cogens cannot be validated through prescription or the mechanism through which an
illegal act is validated by the passage of time. It has been argued that international law
contains two forms of prescription, acquisitive prescription which plays a role in the transfer
of territory over which a State does not have title, and extinctive prescription, or an
unreasonable delay in the presentation of an international claim which results in a
disadvantage to the defendant, in particular the presumption that the right on which the claim
is based has become non-existent.866 Nevertheless, acquisitive prescription is a highly
controversial means of transferring title and has not been applied by the International Court of
Justice; furthermore, acquisitive prescription can in fact be regarded as a form of
acquiescence by inactivity during a long period of time.867 Concerning extinctive prescription
the principle is accepted in international law, but it does not operate between States on issues
regulated by international law; rather it is limited to claims of individuals against States or of
States acting in a private capacity for breaches of contracts or torts.868 It will thus hardly play
any role in the field of jus cogens. In any event, even if it would apply, extinctive prescription
is an issue of fairness and justice and it is unlikely that the barring of a claim arising out of a
jus cogens violations would be accepted because of the late presentation of the claim.

210. Since States cannot validate a breach of a peremptory norm, the concept of estoppel
cannot be invoked against a State which has validated in some way a breach of jus cogens.
According to the doctrine of estoppel, a State having performed certain conduct or adopted a
certain attitude on which other States relied cannot subsequently change its conduct or attitude
to the disadvantage of the States relying upon the conduct or attitude.869 Hence, estoppel
operates as a consequence of a validation device: if a State has made a validation of an illegal
situation, it would be barred from retracting its validation.870 Thus, pursuant to the principle
of estoppel a State having validated an infringement of a peremptory norm would be estopped
to retract its validation. However, this would undermine the peremptory norm and hence
constitute derogation, since it implies the continued existence of a legal relation contrary to
jus cogens between the State having initially validated the breach of a peremptory norm and
the States relying upon the initial validation. Moreover, States cannot invoke an estoppel
against a validation of a violation of a peremptory norm since estoppel is based on good faith
and validation of a violation of a peremptory norm cannot be said to create any good faith

864
A. GÓMEZ ROBLEDO, “Le ius cogens international: Sa genèse, sa nature, ses functions”, Recueil des Cours
1981-III, 197; C. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North Holland,
1976, 128.
865
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 403.
866
J. WOUTERS and S. VERHOEVEN, “Prescription” in R. WOLFRUM, Max Planck Encyclopedia of Public
International Law, Heidelberg, Max Planck Institute for Comparative Public Law and International Law, 2010,
at www.mpepil.com.
867
Ibid..
868
Ibid.
869
Dissenting Opinion Judge WELLINGTON KOO, Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, ICJ Rep. 1962, § 47; Dissenting Opinion Judge SPENDER, Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, ICJ Rep. 1962, 143-144.
870
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 369.

194
obligations towards other States, since other States should be aware that the validation is void
ab initio. Indeed, virtually all States of the international community have accepted that a
particular norm cannot be derogated from, i.e. that no other particular legal regime may
govern their international relations, whether that regime is established by agreement or any
other form. In other words, they are not entitled in good faith to rely on the conduct of the
recognizing State going against a peremptory norm, which they themselves have established,
as a norm from which no derogation is permitted.

§2. Hierarchy in international law

A. The existence of hierarchy in international law

211. International law is traditionally conceived as a horizontal legal system with no

hierarchy between the two major sources, treaties and custom. Hence, international law does
not know a formal hierarchy since none of the two mentioned sources has an absolute
precedence over the other. Instead, the question of primacy of two rules covering the same
field is determined by the legal maxims lex specialis derogat legi generali and lex posterior
derogat legi priori.871 Some authors have however held that custom is the primary source of
international law because the rule of pacta sunt servanda is customary in nature.872 Yet, this is
confusing custom with the supreme rule of recognition in international law. The ultimate rule
of recognition of international law contains the different primary sources of international law,
namely treaties, custom and general principles of law, whose validity depend on their
consistence with jus cogens.873 Since the rule of recognition can be recognized by its
application by law-applying authorities, which in the international context are mainly States,
the confusion between the rule of recognition and custom is easily made since States are also
creating custom by their practice. Others have supported general principles of law as the
primary source of international law.874 Furthermore, the Vienna School, with its main
representatives KELSEN and VERDROSS, has equally introduced a formal hierarchy, a
Stufenbau. KELSEN introduced the Grundnorm, which is however a pure hypothetical norm.875
VERDROSS first introduced a Stufenbau with at the top the Grundnorm of pacta sunt

871
M. AKEHURST, “The Hierarchy of Sources of International Law”, British Yearbook of International Law
1974-1975, 273; A. CASSESE, International Law, Oxford, Oxford University Press, 2005, 198-199.
872
H. KELSEN, Pure Theory of Law, Union, New Jersey, The Lawbook Exchange, 2002, 323-324; E. SUY, Les
actes juridiques unilatéraux, Paris, LGDJ, 1962, 13; R. JENNINGS and A. WATTS, Oppenheim’s International
Law, Volume I, Peace, Introduction and Part 1, London, Longman, 1992, 31; J.A. BARBERIS, “La liberté de
traiter des États et le jus cogens”; Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1970, 24 et
seq.
873
For the rule of recognition in international law, see Infra. No. 331. Initially, the thesis did not pronounce
itself upon whether jus cogens operates outside the law of treaties. Since jus cogens has been found to invalidate
all normative acts, it is a necessary requirement for all norms resulting from all the sources of international law
and hence a part of the supreme rule of recognition.
874
G. BARILE, “La structure de l’ordre juridique international: règles générales et règles conventionnelles”
Recueil des Cours 1978-III, 63; A VERDROSS, “Zum Problem der völkerrechtlichen Grundnorm”, in W.
SCHÄTZEL und H.-J. SCHLOCHAUER (eds.), Rechtsfragen der internationalen Organisation, Festschrift für Hans
Wehberg, Frankfurt, Klostermann, 1956, 391 et seq.
875
H. KELSEN, Pure Theory of Law, Union, New Jersey, The Lawbook Exchange, 2002, 201 et seq.

195
servanda,876 which is however not hypothetical but a positive rule of law founded on
justice.877 Yet despite these positions, a formal hierarchy is generally not accepted in
international law.878

212. The absence of any formal hierarchy does not entail that there can be no hierarchy in
international law in any other way. Hierarchy is deemed to be essential to every system of
law.879 International law does not have an absolute hierarchy, in the sense that there is a
hierarchical relation between the sources so that one source will always have precedence.
Rather, international law knows a relative normativity, or a gradual differentiation of the
normativity of international legal norms based upon the substance of the norms or the values
they protect.880 In this respect, there is widespread opinion that the introduction of jus cogens
in international law has created such a hierarchy in international law and that it transformed a
horizontal system of law into a (semi-)vertical system of law.881 Indeed, in case of jus cogens

876
A. VERDROSS, “Règles générales du droit international de la paix”, Recueil des Cours 1929-V, 290 et seq; A.
VERDROSS, Die Verfassung der Völkerrechtsgemeinschaft, Berlin, Springer, 1926, 32 and 42 et seq.
877
A. VERDROSS, “Le fondement du droit international”, Recueil des Cours 1927-I, 286.
878
C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 20; J.A.
CARRILLO SALCEDO, “Reflections on the Hierarchy of Norms in International Law”, European Journal of
International Law 1997, 585; P.-M. DUPUY, Droit international public, Paris, Dalloz, 2006, 18-19; R.
MONACO, “Observations sur la hierarchie des sources du droit international”, in R. BERNHARDT et al. (eds.),
Völkerrecht als Rechtsordnung, Menschenrechte, Internationale Gerichtsbarkeit, Festschrift für Herrmann
Mosler, Berlin, Springer, 1983, 608-610; J. PAUWELYN, “Bridging Fragmentation and Unity: International Law
as a Universe of Inter-connected Islands”, Michigan Journal of International Law 2003-2004, 908; S.
KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 182; R. KOLB, “Observation sur
l’évolution du concept de jus cogens”, Revue Générale de Droit International Public 2009, 843.
879
M. KOSKENNIEMI, “Hierarchy in International Law: A Sketch”, European Journal of International Law
1997, 566-567; U. FASTENRATH, “Relative Normativity in International Law”, European Journal of
International Law 1993, 338.
880
U. FASTENRATH, “Relative Normativity in International Law”, European Journal of International Law 1993,
305 et seq; J. TASIOULAS, “In Defence of Relative Normativity: Communitarian Values and the Nicaragua
Case”, Oxford Journal of Legal Studies 1996, 88; J.A. BECKETT, “Behind Relative Normativity: Rules and
Processes as Prerequisites of Law”, European Journal of International Law 2001, 629.
881
Prosecutor v. Furundžija, Case no. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, § 153;
Inter-American Commission on Human Rights, Pinkerton and Roach v. United States of America, Resolution
3/87, Case No. 9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), § 55; Id., Survivors of the Tugboat ‘13 de
Marzo’ v. Cuba, Case 11.436, Report No. 47/96, OEA/Ser.L/V/II.95 Doc. 7 rev. (1996), § 79; Inter-American
Court on Human Rights, Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-
18/03, 17 September 2003, Series A, No. 18, §§ 100-101; European Court of First Instance, Kadi v. Council and
Commission, Case T-315/01, Judgment, 21 September 2005, European Court Reports 2005, II-3724, § 226;
Dissenting Opinion Judge ad hoc FERNANDES, Right of Passage over Indian Territory (Portugal v. India),
Merits, Judgment, ICJ Rep. 1960, 135; Separate Opinion Judge ad hoc LAUTERPACHT, Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 13 September 1993, ICJ Rep. 1993, §
100; Separate Opinion Judge ad hoc DUGARD, Armed Activities on the Territory of the Congo (Democratic
Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 10; Joint Dissenting
Opinion Judge ROZAKIS and CAFLISH, Joined by Judges WILDHABER, COSTA, CABRAL BARRETO and VAJIĆ, Al-
Adsani v. The United Kingdom, Application No. 35763/97, Merits, Judgment, 21 November 2001, Reports of
Judgments and Decisions 2001-XI, § 1; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford,
Oxford University Press, 2006, 8-9; C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties,
Amsterdam, North-Holland, 1976, 22-23; I.D. SEIDERMAN, Hierarchy in International Law: The Human Rights
Dimension, Antwerp, Intersentia, 2001, 66; M. AKEHURST, “The Hierarchy of the Sources of International
Law”, British Yearbook of International Law 1974-1975, 281-282; U. FASTENRATH, “Relative Normativity in

196
it will not be the form of the general international law norm which will bestow upon a norm a
peremptory status, but instead it is the subject-matter which is determinative.882 Indeed,
peremptory norms are customary norms and conventional provisions with a certain
characteristic, attached to it by the international community of States as a whole, namely the
impermissibility of derogation. States consider certain norms as jus cogens because they
commonly agree and accept that the norm represent a value which they, as a community,
consider of such importance that they aim to protect against law-making activity going against
the norm. In such case, the peremptory norm does not only have precedence, but the sanction
is the invalidity of the contradicting norm. Even new peremptory norms terminate previously
valid norms. Consequently, in a conflict between a peremptory norm and another norm the
peremptory norm will emerge victorious, and in this respect, peremptory norms are
hierarchically higher because the collectively shared values they enshrine are considered more
important than the law-making autonomy of the individual members of the international
community. Accordingly, because of their content or the values they enshrine peremptory
norms in international law, though formally at the same hierarchical level as others, are
considered more important for the international legal order than others because of their
substance, thus introducing a hierarchical component in international law.

213. Despite general agreement that jus cogens has introduced a form of hierarchy in
international law, some arguments against the hierarchical aspect of peremptory norms have
been advanced. The first argument is that not all fundamental norms of international law can
be classified as peremptory norms.883 HANNIKAINEN for instance mentions sovereignty and
sovereign equality of States as principles which are fundamental but do not belong to jus
cogens because States can derogate from them.884 Regardless of the correctness of this
assertion, which will be investigated later,885 by arguing that not all fundamental norms are
peremptory norms, one at least accepts that international law has a relative normativity, in that
some norms are more fundamental than others. Moreover, even if not all fundamental norms
are of jus cogens nature peremptory norms can coexist with other fundamental norms because
they have to fulfil a certain function which other fundamental norms need not fulfil, but that

International Law”, European Journal of International Law 1993, 322-323; R. KOLB, “The Formal Source of
Ius Cogens in Public International Law”, Zeitschrift für öffentliches Recht 1998, 76; K. TERAYA, “Emerging
Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights”,
European Journal of International Law 2001, 929 and 936; J.A. CARRILLO SALCEDO, “Reflections on the
Hierarchy of Norms in International Law”, European Journal of International Law 1997, 595; R.St.J.
MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Yearbook of International
Law 1987, 134; P. WEIL, “Le droit international en quête de son identité: Cours général de droit international
public”, Recueil des Cours 1992-VI, 266-267; S. KIRCHNER, “Relative Normativity and the Constitutional
Dimension of International Law: A Place for Values in the International Legal System?”, German Law Journal
2004, 52; B. SIMMA, “From Bilateralism to Community Interest in International Law”, Recueil des Cours 1994-
VI, 289 et seq; C. TOMUSCHAT, “Obligations Arising for States without or against Their Will”, Recueil des
Cours 1993-IV, 306; A. BIANCHI, “Human Rights and the Magic of Jus Cogens”, European Journal of
International Law 2008, 494-495.
882
“Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the International Law Commission
1966, Vol. II, 248.
883
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 11; G.J.H. VAN HOOF, Rethinking the Sources of
International Law, Deventer, Kluwer Law and Taxation, 1983, 157.
884
Ibid., 11.
885
Infra, Chapter 6, Section 2, § 1.

197
still places them from a substantial perspective hierarchically higher than other rules of
international law.

214. Some scholars have rejected the hierarchical superior position of jus cogens norms
because they do not follow from a hierarchically higher organ, do not authorize the
promulgation of hierarchically lower norms, nor are there separate sources and procedures for
the creation of such norms.886 Yet, these remarks concern the formal hierarchy of peremptory
norms which are indeed hierarchically not superior to “ordinary” conventional and customary
rules; they do not address the substantial hierarchy of peremptory norms and one wonders
why the concept of hierarchy would be limited to formal hierarchy. In any event, it is rather
peculiar to demand a hierarchical higher source or organ to speak of hierarchy. One organ and
one source may create different rules which are considered not to be of the same substantial
hierarchy. For instance a national legislator can determine that contract law can be set aside
by the conclusion of agreements, but for some rules which protect certain fundamental values
of the legal system. One law from one organ thus creates a legal regime which contains rules
which are not to be considered substantially equal. Moreover, even formally hierarchically
higher rules do not always authorize the enactment of lower rules. Some rules of a
constitution lay down rights of citizens towards the government but do not authorize as such
the creation of lower rules; instead they impose minimum guarantees to the authorities when
they, pursuant to other rules of the constitution, enact norms of lower rank. Peremptory norms
operate rather similarly: they establish norms from which States – and international
organizations – as the law-making authorities in international law may not derogate as
between themselves by one of the recognized sources of international law. Although they do
not themselves create rules of international law, they operate as the yardstick to which norms
of international law will be scrutinized and eventually be declared void. Hence, they are
substantially higher ranked since norms derogating from the substance of the peremptory
norm will be void and thus non-existent.

215. The most outspoken critic of hierarchy in international law is WEIL, who in an
influential contribution pointed to the dangers of relative hierarchy in international law by
focusing on its manifestations, namely soft law, jus cogens, international crimes, obligations
erga omnes and obligations omnium.887 For the purpose of the doctoral thesis I will only focus
on the arguments against relative hierarchy related to jus cogens.

216. WEIL’s paradigm is that of a classical international lawyer, who considers international
law as a legal system with the function of regulating international politics for ensuring that
States coexist and cooperate.888 According to WEIL in order for international law to perform
its functions it should be based on voluntarism, neutrality of the law and positivism. The first
element, voluntarism, means that States are the creators as well as the addressees of the norms
of international law; in other words States are only bound by the rules they create. Secondly,
related to voluntarism, is the ideological neutrality of international law. Since international

886
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 11-12; L.A. ALEXIDZE, “The Legal Nature of Jus
Cogens in Contemporary International Law”, Recueil des Cours 1981-V, 237 and 260.
887
P. WEIL, “Towards Relative Normativity?”, American Journal of International Law 1983, 413.
888
Ibid., 413 and 418-419.

198
law has the task of ensuring coexistence and cooperation between heterogenous entities it may
not impose a value-system of some of the members of the international community, unless a
member has consented to be bound by the rules embodying certain values. Lastly, linked to
voluntarism and neutrality, international law is characterized by positivism, or the strict
separation between lex lata and lex ferenda.889 Thus, only norms to which States have
consented and who reflect the values they have accepted are part of international law. WEIL’s
contention is that inter alia jus cogens risks endangering these characteristics of international
law and hence its function. Indeed, due to the theory of jus cogens a relative normativity in
international law is introduced so that some norms are more binding than others. As a result,
the unitary structure of normativity has been fractured. 890 WEIL also acknowledges positive
aspects of relative normativity in international law since it orients this legal system towards
the common good and common ethical values,891 but in the end the negative consequences
outweigh the positive aspects. The negative aspects are in the first place that the criterion for
normative differentiation is substantial instead of formal or organic: which norms belong to
jus cogens is determined by the elusive concept of the international community of States as a
whole. For WEIL the international community means the collectivity of States. But in his
view, jus cogens does not require an unanimous acceptance and recognition of all States.
Rather, norms of jus cogens need to be recognized by all “essential components of the
international community.892 WEIL fears that because of the vagueness of the requirement
some States would usurp the notion and limit membership to the club of essential components
of the international community so that they determine the norms of jus cogens for others.
Furthermore, nothing would prevent these States to adopt more and more peremptory norms
so that the exception becomes the rule, making ordinary international law merely a
transitional stage between non-law and jus cogens.893 Added to this is the uncertainty as to the
scope of the legal regime of supernorms. Peremptory norms are no longer limited to the law
of treaties, but are also linked with obligations erga omnes, giving each State the right to
invoke the norm against another State and States disagreeing with the qualification of a norm
as peremptory would still be bound by this norm. Consequently, States part of the essential
components of the international community can determine for other States to which rules they
are bound without any possibility of the latter States to escape.894

217. WEIL’s publication has resulted in sharp responses in legal doctrine. Some failed to see
the point raised by WEIL that the creation of international norms should be a value free
undertaking,895 and dismissed it as the aspirations of an individual longing for a previous era

889
Ibid., 420-421.
890
Ibid., 421.
891
Ibid., 422 and 423-424.
892
Ibid. 426-427.
893
Ibid., 427.
894
Ibid., 429-430.
895
Value-free in the sense that it is not the substantive value, an underlying ethical or moral proposition that
influences the creation of an international norm, but only pedigree criteria: a customary norm concerning human
rights or the visibility at night of ships requires the same amount of practice and opinio juris to be established:
J.A. BECKETT, “Behind Relative Normativity: Rules and Process as Prerequisites of Law”, European Journal of
International Law 2001, 632-634. Of course, this does not entail that norms in international law are not value-
laden.

199
of international law dominated by Western States.896 Others have however criticized the
arguments of WEIL in more depth and have defended relative normativity in international law,
although they have not focused on the issue of jus cogens, but addressed the underlying
positivist conceptions of WEIL.897 I will limit myself to refuting the perceived dangers of jus
cogens as establishing a relative normativity in international law identified by WEIL, without
going into a detailed discussion on whether positivism can be reconciled with relative
normativity.898

218. The position of WEIL on jus cogens in “Towards Relative Normativity in International
Law” is rather ambiguous. On the one hand, he does accept a handful of peremptory norms
protecting the most basic values within the international community. On the other hand, he is
highly critical for the concept which is responsible for introducing a differentiation within
posited norms of international law, thereby endangering the goals of the international legal
system to provide for coexistence and cooperation. First, WEIL contends that such a
graduation has created “norms and norms” in the international legal system: some norms are
considered supernorms which are more binding than others. However, jus cogens has as such
no impact on the obligatory nature of international rules. Peremptory norms are not more
binding than other norms, they are just as binding and ordinary norms need to be respected as
well.899 In effect, there is no formal hierarchy between jus cogens norms and other norms of
international law. The only extra quality is that jus cogens norms cannot be set aside by
derogatory rules.900 The reason therefor is that the international community of States aims to
protect certain values of the community against infringement by its individual members. If

896
R.A. FALK, “To What Extent are International Law and International Lawyers Ideologically Neutral?”, in A.
CASSESE and J.H.H. WEILER (eds.), Change and Stability in International Law-Making, Berlin, de Gruyter,
1988, 137.
897
FASTENRATH discusses the point of view of WEIL concerning the relevance of soft law by demonstrating that
even the positivism espoused by WEIL needs soft law to function: U. FASTENRATH, “Relative Normativity in
International Law”, European Journal of International Law 1993, 305-340; TASIOULAS argues against the
positivism of WEIL by defending a natural law conception of custom based on KIRGIS’ theory of custom as a
sliding scale and DWORKIN’s theory of interpretation. He maintains that customary international law is the result
of a dynamic interplay between the dimension of fit (i.e. State practice and opinio juris) and the dimension of
substance (i.e. world order values), where in the end it will be the dimension of substance which will have
preponderant influence in determining the existence of a customary norm. For TASIOULAS, this conception of
custom, as in his opinion was applied by the International Court of Justice in the Nicaragua case, fares the best
in guaranteeing the goals of international law: J. TASIOULAS, “In Defence of Relative Normativity:
Communitarian Values and the Nicaragua Case”, Oxford Journal of Legal Studies 1996, 85-128. The theory of
TASIOULAS has in turn been contested and the position of WEIL defended by BECKETT: J.A. BECKETT, “Behind
Relative Normativity: Rules and Process as Prerequisites of Law”, European Journal of International Law
2001, 627-650.
898
It is submitted that positivism and relative normativity, understood as the gradual differentiation of law on
the basis of the underlying values of norms can be reconciled with positivism so that the position of TASIOULAS,
that relative normativity requires a natural law approach to international law is not necessarily true; it might
suffice to indicate that a hierarchy in international law can be created by various strengths in the legislative will.
Since States find certain values more important than others they can introduce norms higher in the hierarchy of
international law: U. FASTENRATH, “Relative Normativity in International Law”, European Journal of
International Law 1993, 325.
899
R.St.J. MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Yearbook of
International Law 1987, 134; D. SHELTON, “Normative Hierarchy in International Law”, American Journal of
International Law 2006, 304.
900
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 33.

200
peremptory norms are limited to “innocuous examples, of interest to nobody”, a point that
WEIL does accept,901 it is very likely that peremptory norms will never be activated, so that
the difference between elite norms and ordinary norms is merely of a theoretical nature.
Consequently, the difference in normativity will in practice not lead to a weakening of the
duty to obey ordinary norms of international law.

219. The real disquiet of WEIL lies however in the manner how peremptory norms are
determined. WEIL adheres to classical international law which is characterized by
voluntarism, i.e. international law is made – primarily – by States for States, by neutrality, i.e.
norms are created through formal criteria,902 and by positivism as the difference between lex
lata and lex ferenda. For WEIL jus cogens undermines traditional international law because it
cannot be determined by formal criteria, but instead relies on substantive values or world
order values.903 Therefore, it is not a neutral criterion which gives rise to a peremptory norm,
but the subjective values of States. Moreover, because of the reliance on subjective values the
difference between lex lata and lex ferenda disappears: the mere fact that a value is deemed
important can immediately transform that value in a supernorm.904 In addition, jus cogens
goes against voluntarism since it is the vague notion of international community of States as a
whole which determines the norms of jus cogens; this does not require the assent of all States,
but in WEIL’s opinion only the recognition of the most important components thereof.
Consequently, jus cogens has introduced into international law a category of supernorms
which ultimately are determined by the subjective values of some major powers resulting in
norms binding on all member States and invalidating derogatory norms that may reflect the
values which States that have not participated in the creation of the peremptory norm deem
worthwhile.905

220. Although I share the concern of WEIL that value imposition by a small group of States
risks endangering the international legal order, his critique against jus cogens in the end is not
convincing. The whole argument against jus cogens hinges upon a doubtful interpretation of
international community as a whole. It is indeed correct that not each and every State of that
international community has to accept or recognize a norm as peremptory, but this is still very
far removed from a directorate of the major powers. As established before, the notion of
international community as a whole implies the near unanimity of States, with a limited
amount of States dissenting not barring the formation of a peremptory norm,906 so that the
danger of value-imposition by a limited group of States is exaggerated. Of course, a group of

901
P. WEIL, “Towards Relative Normativity?”, American Journal of International Law 1983, 428.
902
This cannot be literally found in the text, but deduced therefrom. It follows from the statement that “Both
religious and ideological neutrality are inherent in the basic concept of international law.”: Ibid., 420;
furthermore, WEIL stresses the importance of positivism, or the distinction between lex lata and lex ferenda, as
a conditio sine qua non for the neutrality of international law and contrasts positivism with “ill-defined values”:
Ibid., 421 and 423. From this it follows that values do not directly create law, but must go through some neutral
legal process in order to become incorporated in international law.
903
U. FASTENRATH, “Relative Normativity in International Law”, European Journal of International Law 1993,
307-308; J. TASIOULAS, “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case”,
Oxford Journal of legal Studies 1996, 88.
904
P. WEIL, “Towards Relative Normativity in International Law?”, American Journal of International Law
1983, 427 and 441.
905
Ibid., 441.
906
Supra, note 539.

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States may claim that a certain norm is peremptory, but this has to be verified with the
acceptance or recognition of other States of the norm as peremptory. In this respect, it has to
be pointed out that peremptory norms are not determined by the relative importance of a
value, but by the (near) universal recognition and acceptance of States that the norm belongs
to jus cogens, an objective verifiable fact, as easy (or difficult) to establish as opinio juris in
custom. Consequently, it is not the value underlying a norm that is determinative, but the
recognition by the international community of States. WEIL seems to have mixed a general
characteristic of peremptory norms – the important values they protect – with the manner in
which peremptory norms arise: it is not because international law has a relative normativity
based on the substance of norms, that the substance of a norm alone suffices to become a
norm of jus cogens. Of course, all fundamental values will be laid down in law and be
awarded jus cogens status, but this requires that States have acted upon the importance of a
certain value and have introduced through the normal processes of international law norms
protecting such values. For instance, the prohibition on inter-State use of force and slavery
reflect important values of the international community, but one may not forget that use of
force and slavery were permitted in the past and that the prohibition of slavery and use of
force have only been introduced after a struggle to change existing international law. In the
end, only the criticism by WEIL concerning jus cogens and voluntarism seems to be correct. It
is indeed the case that a peremptory norm does not require the consent of each and every
member of the international community of States and that it binds the members which have
opposed the norm.907 Nevertheless, as pointed out, consent is not a necessary element in all
sources of international law, in particular custom and general principles of law; so even
ordinary norms may bind States that have not consented to them. Furthermore, even if
international law is established by the will of its subjects, the possibility of relative
normativity remains because the will of the legislators may vary in strength depending on the
value they seek to protect.908 Thus, international subjects may consent to protecting certain
values by intentionally creating norms against which they do not bear derogation. In addition,
they may decide that in order to establish such norms not each and every law-making subject
has to give its consent. If this is the case – and the analysis made in the thesis of jus cogens
confirms this – then the argument based on voluntarism loses much of its force.

221. In later work WEIL is more reconciliatory towards the theory of jus cogens, which he
deems necessary as a weapon of dissuasion, a super-sanction against States which would go
against the most essential norms of the international legal order, whose effects are such that it
will never have to be applied. Jus cogens is needed to limit the autonomy of States but at the
same time it is too dangerous: it is too imprecise in content and in the creation of peremptory
norms, it is a danger to the stability of treaties and it is not adapted to the international legal
system.909 Consequently, it is impossible to apply the theory of jus cogens. Only if jus cogens
remains an empty box will it be able to fulfil its function of dissuading States to adopt

907
Infra, No. 227; F. FORREST MARTIN, “Delineating a Hierarchical Outline of International Law Sources and
Norms”, Saskatchewan Law Review 2002, 343.
908
U. FASTENRATH, “Relative Normativity in International Law”, European Journal of International Law 1993,
325.
909
P. WEIL, “Le droit international en quête de son identité: Cours général de droit international public”,
Recueil des Cours 1992-VI, 269-273.

202
reprehensible treaties.910 On the one hand, WEIL might be right that peremptory norms will
not be frequently invoked and that they serve more as an arm of dissuasion. It is indeed a
Rolls Royce911 which international lawyers painstakingly take care of and polish, a show-car
for the sceptical neighbours of national law in order to demonstrate what magnificent machine
international law has, but which the owners, the States, do not allow to leave the garage. On
the other hand, jus cogens can only have dissuading force if it has practical consequences, in
particular the voidness of the norm contradicting jus cogens.912 The Rolls Royce can drive and
in emergency situations, when all other cars have broken down, it might be very reassuring
that one finds that old well-maintained Rolls in the garage.

222. Nevertheless, there is some merit in the arguments of WEIL, namely that arguing on the
basis of values in international law to establish a hierarchy without those values being
incorporated in positive law could lead to abuse by some powerful States to flout international
law in the name of some abstract ethical value and impose its value-understanding on less
powerful States. His contribution actually warns against the problems associated with natural
law. Although it would go beyond the scope of this chapter to discuss the struggle between
positivism and naturalism in international law, the problems of a natural law approach will be
sketched out by a brief outline and critique on the theory developed by TASIOULAS in
response to WEIL.913

223. According to TASIOULAS, natural law, or the “derivation of norms in conformity with
ethical-political knowledge as to the right ordering of the international community because it
regards such knowledge as both attainable and partially constitutive of the idea of legality”,914
offers a better account of relative normativity, in particular with regard to customary
obligations omnium. Such obligations have two typical features, namely the relative
irrelevance of the traditional requirement of practice in the formation of the custom and their
expansion or universalization of States bound by these customs.915 The driving force beyond
obligations omnium are the values they seek to protect: because of their importance less State
practice is required and once a norm is formed it has the tendency to bind each member of the
international community. However, this raises issues of indeterminacy and anti-pluralism,
against which TASIOULAS defends his theory in the following manner. Concerning
indeterminacy, TASIOULAS retains the classical elements of State practice and opinio juris, but
grounds them in a natural law paradigm by turning to the conception of custom on a sliding

910
Ibid., 277-278. Similar remarks on the symbolic value of jus cogens have been made by CZAPLIŃSKI and
DANILENKO and by CHARLESWORTH and CHINKIN: W. CZAPLIŃSKI and G.M. DANILENKO, “Conflicts of Norms
in International Law”, Netherlands Yearbook of International Law 1990, 11, 42; H. CHARLESWORTH and C.
CHINKIN, “The Gender of Jus Cogens”, Human Rights Quarterly 1993, 66.
911
The analogy originates from BROWNLIE, but is further developed by WEIL: P. WEIL, “Le droit international
en quête de son identité: Cours général de droit international public”, Recueil des Cours 1992-VI, 274.
912
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 34-
35.
913
J. TASIOULAS, “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case”,
Oxford Journal of Legal Studies 1996, 85 et seq.
914
Ibid., 89.
915
Ibid., 96 et seq. Although TASIOULIAS focuses on custom, his theory can also be applied mutatis mutandis to
norms of jus cogens: since peremptory norms are the most important norms in the international community,
they would require less State practice and acceptance to become binding upon all States.

203
scale by KIRGIS, which in turn is based on DWORKIN’s natural law theory.916 According to the
theory of custom on a sliding scale, the more the value underlying the customary norm is
ethically important, the less recourse should be had to confirming State practice, while norms
which are less vital from this perspective need more State practice.917 Thus, it is the
importance of world order values which determines how much State practice and opinio juris
is needed in each instance of custom formation. The theory of DWORKIN considers law as
essentially an interpretative concept: interpretation is a matter of imposing purpose on an
object or practice in order to make it the best possible example of the form and genre to which
it is taken to belong.918 DWORKIN distinguishes between three stages in the process of
interpretation. First, the pre-interpretative stage, at which the practice to be interpreted or the
raw data, is identified. The raw data ensure a common focus for competing interpretations
enabling us to regard them as the interpretation of the same object; this identification requires
a great degree of consensus of the interpreters. During the second stage, an interpretation of
the raw data is forwarded, or a general justification for the main elements of the practice
showing why it is worth pursuing. In the third stage, the post-interpretative stage, the
interpreter adjusts his sense of what the practice really requires so as to better serve the
justification he accepts at the second stage.919

224. TASIOULAS uses this theory to interpret the institution of custom in order to find the best
interpretative account of custom. Custom implies that norms are derived from State practice
and opinio juris. During interpretation two dimensions have to be taken into consideration:
the dimension of fit and the dimension of substance. The dimension of fit requires that the
interpretation should cohere with the raw data. Therefore, an interpretation of custom should
involve both practice and opinio juris. The second dimension is the dimension of substance: if
more than one interpretation satisfies the dimension of fit, then the interpretation which makes
the practice appear in its best light should be chosen, namely the interpretation which
possesses the greatest substantive moral soundness. In the case of custom, that would be the
interpretation which best advances world order values.920 TASIOULAS points out that the two
dimensions are not fixed towards each other, but are on a sliding scale, the relation between
the dimension of fit and the dimension of substance depends on substantive values, or on
world order values. Yet, this reinforces the indeterminacy: not only is the content of custom
dependent on the outcome of the comparison between fit and substance, but also dependent on
substantive consideration on the relation between fit and substance. Thus, in the end world
order values do not only determine the scope of the customary norm, but also whether more or
less attention should be paid to fit. Consequently there is no real threshold of fit since world
order values are in the end all that matters; thus state practice is no restraint in interpretation.
DWORKIN solves this problem by referring to the political context in which interpretation
takes place: if one accepts law as integrity, then one’s convictions will be influenced by the

916
Ibid., 109 et seq.
917
F.L. KIRGIS, JR. “Custom on a Sliding Scale”, American Journal of International Law 1987, 148-149; J.
TASIOULAS, “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case”, Oxford
Journal of Legal Studies 1996, 109.
918
R. DWORKIN, Law’s Empire, London, Fontana, 1986, 52.
919
R. DWORKIN, Law’s Empire, London, Fontana, 1986, 64-67; J. TASIOULAS, “In Defence of Relative
Normativity: Communitarian Values and the Nicaragua Case”, Oxford Journal of Legal Studies 1996, 111.
920
J. TASIOULAS, “In Defence of Relative Normativity: Communitarian Values and the Nicaragua Case”,
Oxford Journal of Legal Studies 1996, 112.

204
political history of his or her community. Thus, the convictions on the relation between fit and
substance are checked by his overall beliefs and attitudes. Hence, the determinacy of
interpretation depends upon the tension among and the process of mutual adjustment between
the different convictions of fit and substance the interpreter accepts.

225. TASIOULAS then challenges the argument that relative normativity is anti-pluralistic.
Against custom as constructive interpretation one could object that there is no consensus on
world order values and their weight in relation to each other. Therefore relativistic doctrines
are indeterminate since they have no criterion to establish how the values judgments should
be assessed.921 Yet, TASIOULAS responds to that charge that much will depend on the society
one has in mind: if one focuses on a statist conception of international society, then the
international society is a heterogeneous association of sovereign and equal States, which in
the end are only concerned with their own interests. Relative normativity on the other hand
has a communitarian model of the international society, which denies the priority of the State
over the international society. It is only as members of the community of mankind, which
presupposes shared values, that the components can understand their identities. Consequently,
it is the membership to this community of shared values upon which the obligatory character
of legal norms depends, not the will of the State. Since communitarism is the best way to
secure the goals of the international legal order, international co-existence and co-operation, it
is the better conception of the international society and not a mere chimera.922 Hence, relative
normativity, with its stress on world order values, is not dysfunctional at all, as WEIL
contends, rather these values are a necessity in order to co-exist.923

226. Regardless of whether DWORKIN’s theory can be applied at the international level
which in the field of adjudication is substantially different from the domestic level,924 and the
correctness of the reply of TASIOULAS to WEIL,925 the main problem of the theory is that the
relative importance of a value determines whether a legal rule exists. The higher the value on
the hierarchy, the more easy the value will become a rule of law, the highest values nearly
automatically becoming legal rules of customary nature. Since customary obligations omnium
require less State practice, the determining element is opinio juris, which expresses the
obligation to be bound by a certain customary rule in light of the importance of the value.
Moreover, the relation between fit and substance and their relative importance is in its turn
again determined by the importance of the value. Hence, the higher the value, the more
emphasis will be laid on the dimension of substance and the more the (remaining) dimension
of fit is determined by opinio juris and less by State practice.926 However, this presupposes a

921
Ibid., 116.
922
Ibid., 119.
923
Ibid., 120.
924
The legal theory of DWORKIN depends on a thick, value-homogenized community and the central role of
adjudication therein: J.A. BECKETT, “Behind Relative Normativity: Rules and Process as Prerequisites of Law”,
European Journal of International Law 2001, 634.
925
DWORKIN’s theory in the first place concerns adjudication, whereas the attack of WEIL against relative
normativity concerns the question when a law exists and is binding on the subjects of international law. By
focusing on DWORKIN’s theory of interpretation, TASIOULAS is in reality addressing the issue of law-
application, not law-creation, the latter logically preceding the former: J.A. BECKETT, “Behind Relative
Normativity: Rules and Process as Prerequisites of Law”, European Journal of International Law 2001, 629.
926
J.A. BECKETT, “Behind Relative Normativity: Rules and Process as Prerequisites of Law”, European
Journal of International Law 2001, 629-633.

205
consensus on the existing values in the international community, their content and their
relative hierarchy which considering the abstract character of values might not be the case.
The inherent problem with any natural law approach seems to be that it takes its values as
objective data that can be discovered and will be accepted by each rational or moral person.927
Of course, this is not the case since one can reasonably disagree about values, their meaning
and their importance.928 Consequently, values can only be relevant if the members of the
community agree upon which values should play a role, their content and their relative
hierarchy.929 However, even if this were to be the case, the agreed upon values have to be put
in an operative legal system which requires the laying down of values in legal rules, giving
them a concrete meaning in various legal contexts and developing mechanisms for conflicts
between values. The promotion of human rights is a value in the international community, but
the content of human rights has been spelled out in different conventions and their
hierarchical relation laid down in or inferred from the human rights conventions.930 But then,
it is these legal norms that are applied and not their underlying values so that the legal system
giving effect to its underlying values will be solely relevant.931 Consequently, in order to
become effective values need to be incorporated in international law, but this incorporation
will necessarily follow one of the law-making procedures in international law. Hence, the
intrinsic worth of a value is in itself not sufficient to establish it as a legal norm or to give it a
place at the apex of the hierarchy. Consequently, a relative normativity that is solely based on

927
As succinctly remarked by WEIL: “il en est du droit naturel, des nécessités sociales et des valeurs comme il
en est des auberges espagnoles: chacun y trouve ce qu’il apporte.”: P. WEIL, “Le droit international en quête de
son identité: Cours général de droit international public”, Recueil des Cours 1992-VI, 74.
928
R.-J. DUPUY, “Les ambiguités de l’universalisme”, in X (ed.), Le droit international au service de la paix, de
la justice et du développement, Mélanges Michel Virally, Paris, Pedone, 1991, 275; M. PROST, “Discours sur le
fondement, l’unité et la fragmentation du droit international : À propos d’une utopie paresseuse”, Revue Belge
de Droit International 2006, 651.
929
P. WEIL, “Le droit international en quête de son identité: Cours général de droit international public”,
Recueil des Cours 1992-VI, 74; M. KOSKENNIEMI, “What is International Law for?”, in M.D. EVANS (ed.),
International Law, Oxford, Oxford University Press, 2003, 91; M. PROST, “Discours sur le fondement, l’unité et
la fragmentation du droit international: À propos d’une utopie paresseuse”, Revue Belge de Droit International
2006, 652.
930
Concerning a hierarchy based on the non-derogable character of human rights: Human Rights Committee,
General Comment No. 29, Article 4 (State of Emergency), UN Doc. CCPR/C/21/Rev.1/Add.11, § 11 (non-
derogable human rights are related to peremptory norms); I.D. SEIDERMAN, Hierarchy in International Law,
The Human Rights Dimension, Antwerp, Intersentia, 2001, 84 et seq; T.C. VAN BOVEN, “Distinguishing Criteria
of Human Rights”, in K. VASAK, and P. ALSTON (eds), The International Dimensions of Human Rights,
Westport (Conn.), Greenwood, 1982, 43; T. MERON, “On a Hierarchy of International Human Rights”,
American Journal of International Law 1986, 13 et seq; K. TERAYA, “Emerging Hierarchy in International
Human Rights and Beyond: From the Perspective of Non-derogable Rights”, European Journal of International
Law 2001, 927-931; F. FORREST MARTIN, “Delineating a Hierarchical Outline of International Law Sources and
Norms”, Saskatchewan Law Review 2002, 345.
931
E. SUY, Les actes juridiques unilatéraux, Paris, LGDJ, 1962, 15 (“Mais la norme juridique ne vaut pas en
raison des valeurs quelle renferme…”); M. PROST, “Discours sur le fondement, l’unité et la fragmentation du
droit international: À propos d’une utopie paresseuse”, Revue Belge de Droit International 2006, 655-656. For
an example: Inter-American Court on Human Rights, Juridical Condition and Rights of the Undocumented
Migrants, Advisory Opinion OC-18/03, 17 September 2003, Series A, No. 18, §§ 100-101. Whereas the Inter-
American Court on Human Rights adopted a natural law approach by holding that individuals have certain
inherent fundamental rights, in particular the right to non-discrimination, it relied on various legal instruments
to demonstrate the legal existence of this norm: D. SHELTON, “Normative Hierarchy in International Law”,
American Journal of International Law 2006, 310.

206
the importance of a certain value cannot be maintained; instead the value has to be
incorporated through the normal law-creating processes – it has to be included in international
law by a formal source – and the resulting norm recognized or accepted by the international
community of States as a whole as one of the highest values in the international legal order,
invalidating norms reflecting other values at a lower place in the hierarchy.932 Thus, relative
normativity in international law depends on formal and substantive criteria. In this respect the
warning of WEIL should be heeded: the mere imposition of values by some powerful members
of the international community without respecting the formalities of international law, may
indeed be a hegemonic enterprise clothed in seemingly evident ethical discourse.

B. Consequences of hierarchy of jus cogens norms

1. Persistent objectors are still bound

227. The hierarchically higher position of peremptory norms compels all States to respect
peremptory norms, even if they have opposed the peremptory norms. Norms of jus cogens are
created by the collectivity of States, but as has been demonstrated this does not imply that
each and every State has to recognize or accept a norm as peremptory; the near universality of
States suffices. Nevertheless, it is not because the consent or acceptance of each and every
State is not required for the creation of a peremptory norm that States which have always
objected are bound by the norm. By comparison, a rule of general customary international law
could also come into existence despite the opposition of a minority of States, but these States
could claim that they are persistent objectors and that the customary norm cannot be opposed
to them.933 Similarly, a norm of jus cogens might come in operation for the community of
States which have accepted it, but not for the small number of States opposing it.
Nevertheless, such States are deemed to be bound.934 It has been argued that this flows

932
See: M. AKEHURST, “The Hierarchy of the Sources of International Law”, British Yearbook of International
Law 1974-1975, 283-284.
933
Supra, No. 66.
934
Ghana, 53rd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 19; Czechoslovakia, 55th Meeting of the Committee of the Whole, l.c., § 55;
Iraq, 80th Meeting of the Committee of the Whole, l.c., § 7; Libya Arab Jamahiriya, 20th Plenary Meeting,
United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 63; Inter-American
Commission on Human Rights, Pinkerton and Roach v. United States of America, Resolution 3/87, Case No.
9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987), § 53; Dissenting Opinion Judge LACHS, North Sea Continental
Shelf (Federal Republic of Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment,
ICJ Rep. 1969, 229; L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical
Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 241; L.A. ALEXIDZE, “The
Legal Nature of Jus Cogens in Contemporary International Law”, Recueil des Cours 1981-V, 246-247, 258; R.
KOLB, “Observation sur l’évolution du concept de jus cogens” Revue Générale de Droit Internationale Public
2009, 843; C. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North Holland, 1976,
77; U. SCHEUNER, “Conflict of Treaty Provisions with a Peremptory Norm of General International Law and Its
Consequences, Comments on Arts. 50, 61 and 67 of the ILC’s Draft Articles on the Law of Treaties”, Zeitschrift
für ausländisches öffentliches Recht und Völkerrecht 1967, 522; U. SCHEUNER, “Conflict of Treaty Provisions
with a Peremptory Norm of International Law”, Zeitschrift fur ausländisches öffentliches Recht und Völkerrecht
1969, 30; M. BOS, “The Identification of Custom in International Law”, German Yearbook of International Law
1982, 43; R.St.J. MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Yearbook
of International Law 1987, 131 and 136; C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law

207
directly from the concept of jus cogens.935 It is impossible for States to claim the status of
persistent objector, since this would entail that a State can opt out of a norm of jus cogens
creating a legal status in which they would not be bound by a norm of jus cogens and thus
derogating from the norm.936 Although this reasoning is superficially correct, it is flawed
since it assumes that States opposing the norm are in any event bound. Derogation of a
peremptory norm, the law-making activity of a limited group of States in defiance of the norm
accepted by the collectivity, is only meaningful if States voicing opposition are bound
nevertheless; if such States would not be bound by the norm in the first place there will be no
normative conflict between the peremptory norm and their legal position. Consequently, the
binding nature of peremptory norms for such States cannot be explained by the conceptual
nature of jus cogens, but only from a hierarchical perspective. It is because the norms to
which jus cogens status is bestowed are deemed to be essential for the international
community that a contrary legal position is not accepted since otherwise the values which the
norms protect will be undermined. Hence, in order to safeguard the essential interests of the
international community, the interests protected by peremptory norms acquire a higher
position in the international legal order so that individual opposition on the basis of individual
interest is not accepted and that opposing States are bound. The objection might be made that
this undercuts the consensual basis of international law since States will become bound even
against their own explicit intention. Yet, as has been established above, international law is
not based on consent alone. Even at the level of customary international law, States may
become bound by a customary norm even if they did not consent to it. The only option
allowed, but disputed, is persistently objecting to the custom. A fortiori, considering the
interests involved it would from the perspective of the international legal system not be
problematic to extend the peremptory norm to a small number of States opposing it. In any
event, States may consensually adopt a legal mechanism which binds them even though they
have not consented to the norm in question. Precisely because of the consensual introduction
of a limited form of hierarchy in international law by the acceptance of jus cogens, States
have agreed that some community interest are deemed more important than the position of the
individual members of the community and that therefore these members are bound.

2. Limiting fragmentation in international law

228. International law has been significantly transformed after the end of the Cold War by
the rise of special regimes covering certain fields of international law, often accompanied by

Journal 1994-1995, 146-147; D. SHELTON, “Normative Hierarchy in International Law”, American Journal of
International Law 2006, 305; E.M. KORNICKER UHLMANN, “State Community Interest, Jus Cogens and
Protection of the Global Environment: Developing Criteria for Peremptory Norms”, Georgetown International
Environmental Law Review 1998, 101. The United Kingdom and Norway in discussing the possibility of a
persistent objector in the Fisheries case agreed that it could not be invoked against fundamental principles:
Fisheries Case (United Kingdom v. Norway), Reply submitted by the Government of the United Kingdom, 413,
at http://www.icj-cij.org/docket/files/5/11027.pdf; Id., Duplique soumise par le Gouvernement du Royaume de
Norvège, 292, at http://www.icj-cij.org/docket/files/5/11029.pdf.
935
R.St.J. MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Yearbook of
International Law 1987, 131 and 136.
936
C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 146-147; D.
SHELTON, “Normative Hierarchy in International Law”, American Journal of International Law 2006, 305.

208
institutions to foster the goals of the regime and ensure its compliance, in particular through
judicial or quasi-judicial means. This evolution has been dubbed the fragmentation of
international law or the compartmentalising of general international law in various subsystems
containing not only primary rules, but also rules concerning their implementation and
sanctioning.937 Hence, there exist different regimes on the same issue which often contradict
general international law over which they have precedence through the principle of lex
specialis derogat legi generali.938 Furthermore, the rise of international organizations and the
proliferation of international tribunals risk endangering the unity of general international law
since those organizations and tribunals may interpret general international law from their
particular perspective and create different understandings of norms of general international
law.939 A(n) (in)famous example is the conflicting interpretation of the standard to attribute
conduct from armed groups receiving support from a State to that State. In Military and
Paramilitary Activities in and against Nicaragua the International Court of Justice concluded
that such conduct is attributable on the condition that the State exercises effective control,940
whereas the International Criminal Tribunal for the Former Yugoslavia in the Tadić case held
that overall control over the group would suffice.941 Another inconsistency concerns the
validity of reservations to human rights treaties,942 which departs from the general rules laid

937
These are the so-called “self-contained regimes”, or regimes which besides primary obligations also contain
rules on implementation and responsibility so that they theoretically do not need to fall back to general
international law: B SIMMA, “Self-contained Regimes”, Netherlands Yearbook of International Law 1985, 111
et seq. The International Court of Justice for instance has coined diplomatic law a self-contained regime since it
contains its own sanctions for non-compliance: United States Diplomatic and Consular Staff in Tehran (United
States of America v. Iran), Judgment, ICJ Rep. 1980, § 86, although it can be doubted that diplomatic law is
really a fully self-contained regime: D. LAPAŠ, “Some Remarks on Fragmentation of International Law:
Disintegration or Transformation?”, Comparative and International Law Journal of South Africa 2007, 6-8. In
any event the warning of BROWNLIE that one should not overzealously regard a body of norms on a certain topic
as a separate legal subsystem should be headed: I. BROWNLIE, “The Rights of Peoples in Modern International
Law”, in J. CRAWFORD (ed.), The Rights of Peoples, Oxford, Clarendon, 1988, 15.
938
G. HAFNER, “The Pros and Cons Ensuing from Fragmentation of International Law”, Michigan Journal of
International Law 2003-2004, 856.
939
C. LEATHLEY, “An Institutional Hierarchy to Combat the Fragmentation of International Law: Has the ILC
Missed an Opportunity?”, New York University Journal of International Law and Policy 2007-2008, 264-267;
J.I. CHARNEY, “Is International Law Threatened by Multiple International Tribunals”, 271 Recueil des Cours
1998, 125; SIMMA on the other hand is of the opinion that courts and tribunals are deferential to contradict each
other: B. SIMMA, “Fragmentation in a Positive Light”, Michigan Journal of International Law 2003-2004, 846.
Equally, CHARNEY while recognizing that the proliferation of tribunals leads to a loss in uniformity, found that
courts and tribunals have similar points of view on international law: J.I. CHARNEY, “The Impact on the
International Legal System of the Growth of International Courts and Tribunals”, New York University Journal
of International law and Politics 1998-1999, 699.
940
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 115; Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007,
§§ 403-404.
941
Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, §§ 115 et seq. It has to
be remarked however that the Tribunal previously had regarded Bosnian Serb forces as part of the Yugoslav
army: Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, §§ 232-
234.
942
Under general international law reservations are considered valid if they are not opposed to by other States
and objections to reservations do not necessarily hinder the entry into force of the treaty between the State
making the reservation and the objecting State: Articles 19-20 Vienna Convention on the Law of Treaties
(1969); Reservations to the Convention on Genocide, Advisory Opinion, ICJ Rep. 1951, 26 and 29-30; “Report

209
down in the Vienna Convention on the Law of Treaties and the jurisprudence of the
International Court of Justice, as supported by the International Law Commission.943
Moreover, the ascent of individuals in international law has been considered as a factor
increasing fragmentation: if individuals are given direct access to treaty implementation
bodies, they might challenge the legal understanding of norms by States, which might give
rise to pronouncements on the content of the norm going against the States’ understanding of
the said norm.944

229. The proliferation of separate and specialized regimes with its own rules, sources,
dispute settlement procedures and implementation bodies have by some, in particular the
Presidents of the International Court of Justice,945 been regarded as a threat to the unity and
consistency of international law. At first instance this might appear strange: how can the
proliferation of specialized bodies of international law be a danger towards international law?
Rather, the use of international law in various new fields varying from trade law to

of the International Law Commission on the Work of Its Forty-ninth Session”, Yearbook of the International
Law Commission 1997, Vol. II, Part 2, 46 et seq. Human rights bodies have however held that even in the
absence of protest against a reservation, the reservation might be held invalid if it goes against the object and
purpose of the convention: Human Rights Committee, General Comment No. 24, Issues relating to Reservations
Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to
Declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1./Add.6, § 17; European Court on
Human Rights, Belilos v. Switzerland, Application No. 10328/83, Merits and Just Satisfaction, Judgment, 29
April 1988, Series A, No. 132, § 60; Id., Loizidou v. Turkey, Application No. 15318/89, Preliminary Objections,
Judgment, 23 March 1995, Series A, No. 310, §§ 67-75.
943
It may however be doubted whether there is disagreement about the law on validity of reservations. The
Vienna Convention on the Law of Treaties establishes that in case the convention does not provide for a
separate regulation on the validity of reservations, reservations will be invalid if they go against the object and
purpose of the convention: Article 19 Vienna Convention on the Law of Treaties (1969). This is not disputed by
human rights bodies. The disagreement concerns rather how it is established that a reservation goes against the
object and purpose of the convention, a dispute which can be traced back to the divide between proponents of
the permissibility school and the opposability school. According to the former there is a difference between
validity and opposability: if the reservation goes against the object and purpose it is invalid, regardless of
whether it is later accepted by other parties. The latter school equals validity and opposability: if the reservation
is accepted, it is valid. However, if the debate is recast in terms of the competent authority to judge upon
whether a reservation is valid, the dispute becomes almost moot: in case there exist an institution guaranteeing
the functioning of the regime (for instance a tribunal) with the (implied) power to review the validity of
reservations, it will decide whether the reservation goes against the object and purpose of the treaty even if the
reservation is accepted by other parties. On the other hand, if such institution is lacking, the other parties will be
the only authorities to judge whether a certain reservation is valid; in such case the opposability of reservation
will indicate the validity of the reservation.
944
W.W. BURKE-WHITE, “International Legal Pluralism”, Michigan Journal of International Law 2003-2004,
969-970.
945
Judge SCHWEBEL, “Address to the Plenary Session of the General Assembly of the United Nations” (1999),
at http://www.icj-cij.org/court/index.php?pr=87&pt=3&p1=1&p2=3&p3=1; Judge GUILLAUME, “Address to the
United Nations General Assembly” (2000), at http://www.icj-
cij.org/court/index.php?pr=84&pt=3&p1=1&p2=3&p3=1; Judge GUILLAUME, “The Proliferation of
International Judicial Bodies: The Outlook for the International Legal Order, Speech to the Sixth Committee of
the General Assembly of the United Nations” (2000), at http://www.icj-
cij.org/court/index.php?pr=85&pt=3&p1=1&p2=3&p3=1; Judge GUILLAUME, “Speech to the General
Assembly of the United Nations” (2001), at http://www.icj-
cij.org/court/index.php?pr=82&pt=3&p1=1&p2=3&p3=1. See also in the framework of the law of the sea: S.
ODA, “Dispute Settlement Prospects in the Law of the Sea”, International and Comparative Law Quarterly
1995, 864.

210
environmental law demonstrates its vitality as a means to influence behaviour of international
agents and its use as a problem-solving tool in various international domains. Nevertheless,
since each and every regime has its own perspective on a multi-faceted problem, one could
end up with different contradictory solutions resulting from the implantation of each regime
separately depending on which aspect of the problem the regime covers. Thus the WTO has
not taken environmental measures restricting trade into account when deciding cases brought
before its panels.946 Moreover, it can be questioned whether a certain implementation
mechanism can take other goals and interests than the ones of its constituent document into
account. WTO panels are primarily concerned with enhancing trade via the WTO legal
framework, not with environmental law or human rights law.947 Furthermore, different
interpretations of general international law by different regimes could lead to the highjacking
of general international law for the goals of the special regime and in the end to its
absconding. The future of international law might resemble legal islands of highly regulated
specialized regimes in a sea of power politics. Consequently, opponents of fragmentation
stress the need to preserve the unity of international law.948 Others have questioned the
existence of international law as a unified legal system or doubt that it has ever existed or can
exist in the context of international politics.949 Rather, the aspiration for a unified and
hierarchically ordered international law is a hegemonic enterprise.950 Furthermore,

946
See: United States – Restriction on Import of Tuna, 30 International Legal Materials 1598 and United States
– Restriction on Import of Tuna, 33 International Legal Materials 842 (both not adopted). On the other hand, in
the Beef Hormones dispute it would have considered the precautionary principle if it would have constituted
customary international law: Appellate Body, European Communities – Measures concerning Meat and Meat
Related Products (Hormones), WTO Doc. WT/DS26/AB/R (1998), § 125; in addition, the WTO has on
occasion interpreted the words “exhaustible natural resources” in Article XX (g) GATT in light of
environmental treaties: Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WTO Doc. WT/DS58/AB/R (1998), §§ 128-132.
947
M. KOSKENNIEMI and P. LEINO, “Fragmentation of International Law? Postmodern Anxieties”, Leiden
Journal of International Law 2002, 572.
948
Besides the Presidents of the Court, one can refer to DUPUY: P.-M. DUPUY, “L’unité de l’ordre juridique
international”, 297 Recueil des Cours 2002, 460 et seq; According to CONFORTI, the questioning of the unity of
international law is not really useful and out of place: B. CONFORTI, “Unité et fragmentation du droit
international: ‘Glissez, mortels, n’appuyez pas!’”, Revue Générale de Droit International Public 2007, 7. Some
authors have stressed that an institutional hierarchy is the best guarantee for the unity of the system: C.
LEATHLEY, “An Institutional Hierarchy to Combat the Fragmentation of International Law: Has the ILC Missed
an Opportunity?”, New York University Journal of International Law and Policy 2007-2008, 271 et seq. The
International Law Commission in its study on fragmentation accepts that international law is a system, which
implies a minimum of coherence and unity: “Report of the Study Group of the International Law Commission,
Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International
Law”, UN Doc. A/CN.4/L.682, § 17.
949
M. KOSKENNIEMI and P. LEINO, “Fragmentation of International Law? Postmodern Anxieties”, Leiden
Journal of International Law 2002, 576-577; M. PROST, “Discours sur le fondement, l’unité et la fragmentation
du droit international: À propos d’une utopie paresseuse”, Revue Belge de Droit International 2006, 664 et seq,
although the author is not completely denying the existence of some universal systems.
950
M. PROST, “Discours sur le fondement, l’unité et la fragmentation du droit international: À propos d’une
utopie paresseuse”, Revue Belge de Droit International 2006, 639; critical legal studies is focused against the
idea of the existence of the rule of law in international law and regards international law as a discourse, a
discipline instead of a legal system. Consequently, international law has no fixed substance but consists of
argumentative structures. It reproaches positivism to present international law as an objective normative system,
thereby covering the policy choices behind it: Ibid., 635 et seq. On the other hand, one could argue that the
understanding of international law by critical legal scholars also is a policy choice and a hegemonic enterprise:

211
fragmentation has some benefits. First, by its restricted membership with the same interests or
background compliance with the regime – and with the law – will be enhanced.951 Second,
specialized regimes may serve as a laboratory for new policies and new solutions to
international problems,952 which can be incorporated later in general international law; the
norms of the special regime might be the avant-garde of general international law.
Furthermore, specialized regimes can reflect the perspective of a group whose views would
otherwise not be heard at the international level and force general international law to become
more inclusive.

230. It can be doubted that international law has ever known a homogeneous substantive
unity. Because of its decentralized nature and the derogable character of most norms of
general international law, international law has always been characterized by different legal
relations between States.953 States have always set aside general international law by
concluding special agreements, creating regional organizations and creating law in domains
which were not covered by general international law. Even if international law would only
consist of general norms, unity would still not be guaranteed since it is unlikely that each and
every State will agree on the exact application or interpretation of a particular norm of general
international law. This phenomenon is not unknown to national law, where disagreement
about the law is solved in the end by the highest court or the legislator. Yet, since
international law has no central legislator or court system it is more prone to remain in a state
of flux until agreement is reached on the exact scope or application of a norm of general
international law. It can even be argued that fragmentation is necessary for the vitality of
international law. International law lacking a centralized enforcement mechanism depends on
the legitimacy of its norms. By allowing special regimes to experiment and propose new
norms or by having a debate on the scope of application or the interpretation of general
international law, established norms are challenged, which might lead to frictions, but also to
a new consensus taking into account the criticism levied at the norm, and making the adjusted
norm more accepted by all and more complied with.954

M. CRAVEN, “Unity, Diversity and the Fragmentation of International Law”, Finnish Yearbook of International
Law 2003, 5
951
G. HAFNER, “The Pros and Cons Ensuing from Fragmentation of International Law”, Michigan Journal of
International Law 2003-2004, 859; J. PAUWELYN, “Bridging Fragmentation and Unity: International law as a
Universe of Inter-connected Islands”, Michigan Journal of International Law 2003-2004, 904.
952
J.I. CHARNEY, “Is International Law Threatened by Multiple International Law Tribunals?”, 271 Recueil des
Cours 1998, 347; J.I. CHARNEY, “The Impact on the International Legal System of the Growth of International
Courts and Tribunals”, New York University Journal of International law and Politics 1998-1999, 700.
953
G. HAFNER, “Pros and Cons Ensuing from Fragmentation of International Law”, Michigan Journal of
International Law 2003-2004, 850; J. PAUWELYN, “Bridging Fragmentation and Unity: International law as a
Universe of Inter-connected Islands”, Michigan Journal of International Law 2003-2004, 903; P.S. RAO,
“Multiple International Judicial Forums: A Reflection on the Growing Strength of International Law or Its
Fragmentation?”, Michigan Journal of International Law 2003-2004, 931; C. LEATHLEY, “An Institutional
Hierarchy to Combat the Fragmentation of International Law: Has the ILC Missed an Opportunity?”, New York
University Journal of International Law and Policy 2007-2008, 261-262.
954
The International Court of Justice for instance while retaining its effective control standard has given a place
to overall control in international law: while the former deals with State responsibility, the latter may be used to
determine the international nature of the conflict: Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment,
ICJ Rep. 2007, § 405; the solution of the Court on the one hand confirms its previous judgment in the
Nicaragua case while at the same time takes into consideration the interest of the International Criminal

212
231. Despite fragmentation within international law it would be too far-reaching to hold that
international law has ceased to be or has never been a legal system.955 For DUPUY,
international law is characterized by a formal unity and a substantial unity. The formal unity
is made out of Hartian secondary rules. In contrast to HART, DUPUY does recognize the
existence of secondary rules in international law, especially rules of change and
adjudication.956 This is correct since international law contains rules on the creation and
abolishment of international rules, for instance the rules laid down in the Vienna Convention
on the Law of Treaties. Yet, having rules of change is not sufficient to identify the existence
of a legal system. Although nearly all special regimes are created by treaty, this does not
necessarily entail that all these regimes belong to the international legal system since the
treaty might create a separate legal order detached from the international legal system. A
treaty establishing a confederation, with a clear division of competences between the States
and the confederate authorities, does not make the legal order of the confederation part of
international law; similarly the establishing by treaty of a federation through a fusion of States
for instance does not entail that the legal order it establishes is part of international law.

232. Since a chain of valid laws does not suffice as a criterion for the identity of a legal
system, i.e. the issue which normative statements belong to the same legal system, RAZ turns
to primary law applying organs to establish which laws belong to a legal system. Primary law-
applying organs are organs entitled to decide whether a law prohibiting the use of force is
violated and their decision allows for a sanction either by those organs or by others.957 On the
basis of this criterion general international law and various regimes cannot be said to form a
legal system. Although States have the power to judge whether other States have violated
international law, to apply sanctions against those States and to use force in self-defence, they
are not primary organs since RAZ makes a distinction between societies where there exist
rules and sanctions without primary law-applying organs and other societies, the latter only
having a legal system.958 Of course, one could argue that the Security Council is such a
primary law applying organ. However, the Security Council does not necessarily decide on
the basis of law. Furthermore, even if the Security Council would merely to decide on the
basis of law, the question then arises whether its decisions imply the recognition, expressly or
tacitly, of each and every law of the international legal system. It would in any event
recognize implicitly all the laws of the United Nations-system. Nevertheless, decisions of the
Security Council may indicate whether a certain regime belongs to international law. For
instance, if the Security Council determines that the settlements in the Occupied Palestinian
Territory are illegal,959 it considers humanitarian law as part of international law which is
binding upon a State. On the other hand, it is recognized that the Security Council might
breach international law and that if such breaches concern peremptory norms, the decision of

Tribunal for the Former Yugoslavia by retaining the overall control test for the nature of the armed conflict, the
reason why the overall control test was introduced.
955
International law has been regarded as a legal system with a “géométrie variable”: K. ZEMANEK, “The Legal
Foundations of the International System: General Course on Public International Law”, 266 Recueil des Cours
1997, 62-63.
956
P.-M. DUPUY, “The Danger of Fragmentation or Unification of the International Legal System and the
International Court of Justice”, New York University Journal of International Law and Policy 1998-1999, 793.
957
J. RAZ, The Concept of a Legal System, Oxford, Clarendon, 1980, 193.
958
Ibid., 193-194.
959
Supra, note 868.

213
the Council is invalid and hence cannot constitute recognition that a certain set of norms
belongs to the international legal system.960 This implies that there other norms of
international law (i.e. jus cogens) that determine which norms may belong to the international
legal system over which the Security Council has no power to set them aside. The
International Court of Justice might also be a suitable candidate to be labelled a primary law
applying organ since it normally decides according to law whether a State has violated
international law and which reparation should be made as a sanction. Yet, the Court has no
compulsory jurisdiction over States and it stands not in a hierarchically higher position than
other international courts, contradicting it on whether a normative statement belongs to the
international legal system. Moreover, its judgments are only binding as between the parties to
the dispute per Article 59 of its Statute. Nevertheless, RAZ leaves the possibility open that a
legal system does exist if there is a substantial, but partial overlap between sets of laws, each
recognized by one of the organs instituted under it.961 On this account international law would
be regarded as a legal system if the organs of the sub-regime recognize (parts of) general
international law as being relevant to the subsystem. In other words, if the organs of the
regime consider the regime as belonging to international law, then the regime will form part
of the international legal system. At this point in time, there is no indication that sub-regimes
created by international law have considered themselves to be independent of general
international law.962 In this respect, it has to be noted that general international law is typically
used to fill in lacunae in the special regimes963 and special regimes take into account general
international law when applying their own law.964 In fact, each and every special regime relies

960
Supra, No. 206.
961
J. RAZ, The Concept of a Legal System, Oxford, Clarendon, 1980, 192.
962
A whole overview of each sub-regime and its position towards general international law would be outside
the scope of the thesis, but some examples may be mentioned. For instance, the European Court on Human
Rights has recognized that the European Convention on Human Rights should not be interpreted in a vacuum,
but should besides the special regime of the Convention also take into account the relevant rules of international
law and interpret the Convention in harmony with them: Banković et al. v. Belgium et al., Application No.
52207/99, Admissibility, Decision, 12 December 2001, Reports of Judgments and Decisions 2001-XII, § 57; Al-
Adsani v. the United Kingdom, Application No. 35763/97, Merits, Judgment, 21 November 2001, Reports of
Judgments and Decisions 2001-XI, § 55. For the WTO: Korea – Measures Affecting Government Procurement,
WTO Doc. WT/DS163/R, § 7.96, where it was held that as long as there are no inconsistent conventional
obligations, WTO-law is regulated by customary international law; equally, Panels and the Appellate Body have
used the Vienna Convention on the Law of Treaties to interpret the GATT: for an overview see: J.I. CHARNEY,
“International Law and Multiple International Tribunals”, 271 Recueil des Cours 1998, 145 et seq. Even the
European Court of Justice, the court at the apex of one of the most independent legal orders, has considered
European law as a “new legal order of international law”: NV Algemene Transport- en Expeditieonderneming
Van Gend en Loos v. The Netherlands Inland Revenue Administration, Case No. 26/62, Judgment, 5 February
1963, European Court Reports 1963, 23, although there is some dispute whether the European legal order is
still part of international law: L. HANCHER, “Constitutionalism, the Community Court and International Law”,
Netherlands yearbook of International Law 1994, 290; J.H.H. WEILER, “The Transformation of Europe”, Yale
Law Journal 1990-1991, 2407; contra: B. DE WITTE, “Rules of Change in International Law: How Special is the
European Community?”, Netherlands Yearbook of International Law 1994, 331.
963
INTERNATIONAL LAW COMMISSION, “Report of the Study Group on Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law”, UN Doc.
A/CN.4/L.663/Rev.1, § 24; J. PAUWELYN, “Bridging Fragmentation and Unity: International Law as a Universe
of Inter-connected Islands”, Michigan Journal of International Law 2003-2004, 906.
964
W.W. BURKE-WHITE, “International Legal Pluralism”, Michigan Journal of International Law 2003-2004,
970-971.

214
partially on general international law.965 Thus, diversification and specialization of
international law have not undermined the systemic nature of international law.

233. Since general international law and its sub-regimes form a legal system, mechanisms
need to be in place to solve conflicts between general international law and special
international law. Typically, the conflict is solved by the cardinal principle of lex specialis
derogat legi generali, a mechanism embedded in general international law and ensuring a
minimum of coherence: in so far as norms are more specific, they will be given precedence,
but general international law remains in the background to regulate areas which are not
covered by the sub-regime.966 However, a consistent application of the principle lex specialis
derogat legi generali would in the end lead to the creation of ever-expanding sub-regimes,
reflecting specific values and interests at the cost of universal interests and values, whose
importance will decrease as the sub-regimes develop and grow. It has been held that
international law needs hierarchically higher norms in order to prevent the disintegration of
international law into continuously expanding sub-regimes.967 If the principle of lex specialis
would not be counterbalanced, no universal substantive norm would remain since each and
every subject might be regulated by different, sometimes conflicting sub-regimes binding a
limited amount of international subjects. This evolution would not affect the systemic nature
of international law since the primary law-applying organs may still regard the regime as part
of international law. However, one would not find universally shared values or interests, or if
such values and interests exist, they would only be accepted as highly abstract concepts, filled
in differently by each and every regime and devoid of any practical relevance. The danger for
international law is not that it will lose its systemic character, but that it will be reduced to
norms that are only concerned with upholding its systemic character, i.e. merely containing
norms solving problems between conflicting sub-regimes. As a result, international law will
become a value-barren desert and loses its legitimacy as a tool to foster cooperation and
coexistence at the international level, which implies a minimum of universally accepted
norms. Thus, there is a need to have a mechanism that while respecting the principle of lex
specialis, limits its operation as not to affect the basic, commonly shared values and interests.
Therefore, it is not unremarkable that together with highlighting the fragmentation of
international law, more importance is attached to norms reflecting the basic values of the
international community, binding upon all States, and that an increasing scholarly voice on
the constitutionalization of international law has grown.968

965
INTERNATIONAL LAW COMMISSION, “Report of the Study Group on Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law”, UN Doc.
A/CN.4/L.663/Rev.1, § 16 and § 23; G. ABI-SAAB, “Fragmentation or Unification. Some Concluding
Remarks”, New York University Journal of International Law and Politics 1998-1999, 926; D. LAPAŠ, “Some
Remarks on Fragmentation of International Law: Disintegration or Transformation?”, Comparative and
International Law Journal of South Africa 2007, 24.
966
D. LAPAŠ, “Some Remarks on Fragmentation of International Law: Disintegration or Transformation?”,
Comparative and International Law Journal of South Africa 2007, 24-26.
967
D. SHELTON, “International Law and Relative Normativity”, in M.D. EVANS (ed.), International Law,
Oxford, Oxford University Press, 2003, 148-149; D. SHELTON, “Normative Hierarchy in International Law”,
American Journal of International Law 2006, 293; S. KIRCHNER, “Relative Normativity and the Constitutional
Dimension of International Law: A Place for Values in the International Legal System?”, German Law Journal
2004, 63-64.
968
B. SIMMA, “Fragmentation in a Positive Light”, Michigan Journal of International Law 2003-2004, 845.

215
234. Jus cogens, by establishing a hierarchy in international law between norms of general
international law recognized by the international community of States as a whole as
peremptory and sub-regimes tackles this aspect of fragmentation in international law.969 By
attaching a hierarchically superior status to some norms of general international law it
establishes a minimum of substantial unity in the international legal system, while allowing at
the same time the development of special regimes in areas not covered by peremptory norms.
Nevertheless, special regimes which would in any respect derogate from an existing
peremptory norm would be void ab initio, even if only one of its norms contradicts a
peremptory norm. Furthermore, new peremptory norms will terminate an existing regime,
unless the parts inconsistent with the new peremptory norm can be severed. Thus, the
acceptance of jus cogens in the general legal system has created a substratum of norms which
are applicable to general international law and every subsystem. Thus, international law can
be regarded as a pluralist legal system: a system which allows diversity of normative choices
in the framework of universal norms.970

235. The typical means by which jus cogens safeguards the substantial coherence of the
international legal system is by voiding derogating norms, which are either expressly
contradicting norms of jus cogens or are found after interpretation to be inconsistent with a
peremptory norm. Yet, jus cogens also operates in a more subtle manner via Article 31 (3)(c)
Vienna Convention on the Law of Treaties by limiting the permissibility of certain
interpretations of norms which as such are not contrary to jus cogens.971 The situation
envisaged is not where the validity of a treaty or other norm is in debate, but where a State or
other subject of international law advances an interpretation of a norm, which, if followed,
would lead to a construction of the norm contrary to jus cogens. Therefore, a tribunal cannot
retain that interpretation and interpret the norm in such a manner that it does not contradict jus
cogens.972

236. Pursuant to Article 31 (3)(c) Vienna Convention on the Law of Treaties, treaties should
be interpreted taking into account any relevant rules of international law applicable between
the parties. The rule operates in any interpretation exercise, not only when peremptory norms
are involved. It is based upon the presumption that by concluding an agreement, the parties
had the intention to apply general international law for all issues the treaty does not deal

969
S. KIRCHNER, “Relative Normativity and the Constitutional Dimension of International Law: A Place for
Values in the International Legal System?”, German Law Journal 2004, 63 and 64; A.L. PAULUS, “Jus Cogens
in a Time of Hegemony and Fragmentation, An Attempt at a Re-appraisal”, Nordic Journal of International
Law 2005, 332.
970
W.W. BURKE-WHITE, “International Legal Pluralism”, Michigan Journal of International Law 2003-2004,
977-978.
971
Separate Opinion Judge SIMMA, Oil Platforms (Iran v. United States of America), Merits, Judgment, ICJ
Rep. 2003, § 9; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University
Press, 2006, 167-168; W. JENKS, The Prospects of International Adjudication, London, Stevens & Sons, 1964,
458; A. CASSESE, International Law, Oxford, Oxford University Press, 2005, 206; J. SZTUCKI, Jus Cogens and
the Vienna Convention on the Law of Treaties, A Critical Appraisal, Vienna, Springer, 1974, 124; E. DE WET,
“The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and
Customary Law”, European Journal of International Law 2004, 99.
972
S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 326; U. FASTENRATH,
“Relative Normativity in International Law”, European Journal of International Law 1993, 335.

216
with.973 Furthermore, it is assumed that in concluding conventions, parties do not wish to act
inconsistently with general international law.974 Therefore, treaties should be interpreted in
such a way that they are integrated into the international legal system and take general
international law or other relevant treaties into consideration.975 However, the provision is
very unclear,976 since it does not specify which other rules are relevant and have to be taken
into account, what precisely “taking into account” means and whether one should have
reference to the rules applicable between the parties at the moment the interpreted convention
was concluded or those applicable between the parties at the moment of interpretation. It has
been held that “rules” refers to all the sources of international law as long as the source has
created a relatively clear rule and not a principle.977 This does not entail that general
principles of law are excluded since their application involves judicial law-making by
extracting rules from principles contained in domestic jurisdictions to solve a legal
loophole978 or the individuation of general principles underlying each and every legal
system.979 Moreover, principles can also be created by custom or treaty law.980 Whether such
rules should be taken into account can only be decided on a case-by-case basis, weighing the
importance of the systemic coherence against the need to specially regulate a field of
international law.981 For instance, the Permanent Court of International Justice held in the
Wimbledon case that the treaty rights of Germany under the Versailles treaty were not
affected by general international law even if by living up to its treaty relations Germany
would violate international law.982 Conversely, in its Namibia advisory opinion the
International Court of Justice held that for the interpretation of the Mandate Agreement it
should take the principle of self-determination into account, which was not yet legally
entrenched at the moment the Agreement was concluded, and that it should interpret an
instrument within the framework of the legal system in operation at the time of

973
See: George Pinson, (France v. Mexico), Award of 13 April 1928, Reports of International Arbitration
Awards, Vol. V, 422; Korea – Measures Affecting Government Procurement, WTO Doc. WT/DS163/R, § 7.96;
C. MCLACHLAN, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention”,
International and Comparative Law Quarterly 2005, 311.
974
Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, Judgment, ICJ Rep.
1957, 142; C. MCLACHLAN, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna
Convention”, International and Comparative Law Quarterly 2005, 311
975
INTERNATIONAL LAW COMMISSION, ““Report of the Study Group on Fragmentation of International Law:
Difficulties Arising from the Diversification and Expansion of International Law”, UN Doc. A/CN.4/L.682, §
413 and § 415; C. MCLACHLAN, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna
Convention”, International and Comparative Law Quarterly 2005, 280-281.
976
Separate Opinion Judge WEERAMANTRY, Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment,
ICJ Rep. 1997, 114; H.W.A. THIRLWAY, “The Law and Procedure of the International Court of Justice 1960-
1989, Part Three” British Yearbook of International Law 1991, 58.
977
C. MCLACHLAN, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention”,
International and Comparative Law Quarterly 2005, 290.
978
Supra, Nos. 89 et seq.
979
Supra, Nos. 93 et seq.
980
Supra, Nos. 99-100.
981
INTERNATIONAL LAW COMMISSION, “Report of the Study Group of the International Law Commission,
Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International
Law”, UN Doc. A/CN.4/L.682, §§ 473-474.
982
S.S. Wimbledon (United Kingdom, France, Italy and Japan v. Germany, Poland Intervening), Judgment,
PCIJ Publ., Series A, No. 1, 23-25 and 29-30.

217
interpretation.983 Finally, the starting point should be that the treaty provision is interpreted in
light of the rules existing at the moment of its conclusion, but the parties may agree that the
treaty should be interpreted in light of the rules applicable at the moment the treaty is
interpreted, for instance by including an evolutionary concept or using general language.984
Whereas the foregoing considerations apply to non-peremptory international law, systemic
interpretation involving a peremptory norm does not require that the peremptory norm is a
rule: a peremptory principle has equally to be taken into account. Furthermore, if relevant, the
peremptory norm has to be applied, regardless of other considerations. In addition, the issue
of the applicable law is non-existent: it is the peremptory norms existing at the moment the
treaty is interpreted which have to be applied, not the peremptory norms which were existing
at the moment the treaty was concluded.985

237. The mechanism of systemic integration of a treaty with peremptory norms has been put
in operation in the Oil Platforms case.986 In that case, the attacks on certain Iranian oil
platforms was alleged to be a breach of the 1955 Treaty of Amity, in particular Article X,
since the attacks on the platforms constituted an infringement of the freedom of trade between
the two countries. The United States responded that even if there would be a breach of Article
X, it could not be held responsible since Article XX (1) (d) of the Treaty, which stated that the
treaty could not preclude the taking of measures to protect the essential security interests of
the parties.987 In this respect Iran had argued that this clause could not be read to allow a use
of force which would go against the peremptory prohibition of the use of force unless in case
of self-defence. Hence, in order to guarantee the validity of the treaty, the Court should
interpret the provision in accordance with jus cogens.988 The United States on the other hand
was of the opinion that the Court had no jurisdiction to judge upon the legality of its use of
force, but only over the interpretation of Article XX (1)(d) and that the actions of the United
States could only be reviewed in light of that provision.989 Hence, following the reasoning of
the United States, if the court would find that the measures were taken in order to protect its
essential security interests, then Article XX (1)(d) would apply and there would be no breach
of the Treaty of Amity. Nevertheless, the Court held that it could not accept that the provision
should be read independently from the rules on the use of force and that therefore they had to

983
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 Rep. 1970, § 53.
984
INTERNATIONAL LAW COMMISSION, “Report of the Study Group of the International Law Commission,
Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International
Law”, UN Doc. A/CN.4/L.682, § 478.
985
It has to be noted that when the treaty at the moment of its conclusion was contrary to a peremptory norm, it
cannot be interpreted in light of the less strict peremptory norm at the moment the treaty is interpreted, since
that treaty was void ab initio.
986
Oil Platforms (Iran v. United States of America), Merits, Judgment, ICJ Rep. 2003, 161.
987
Ibid., § 32.
988
Oil Platforms (Iran v. United States of America), Reply and Defence to Counter-claim Submitted by the
Islamic Republic of Iran, Vol. 1, 10 March 1999, 164-165, at http://www.icj-cij.org/docket/files/90/8630.pdf;
Oil Platforms (Iran v. United States), Oral Statement of Iran, CR 2003/8, 19 February 2003, 16, at
http://www.icj-cij.org/docket/files/90/5141.pdf; Oil Platforms (Iran v. United States of America), Oral
Statement of Iran, CR 2008/16, 3 March 2003, 13, at http://www.icj-cij.org/docket/files/90/5173.pdf.
989
Oil Platforms (Iran v. United States of America), Merits, Judgment, ICJ Rep. 2003, § 39. See also: Oil
Platforms (Iran v. United States of America), Oral Statement of the United States of America, CR 2003/12, 26
February 2003, 18-19, at http://www.icj-cij.org/docket/files/90/5157.pdf where it was argued that Article XX
was the applicable law according to the principle of lex specialis.

218
be interpreted pursuant to Article 31 (3)(c) in line with the law on the use of force.990 Thus,
the Court set aside the principle of lex specialis and construed Article XX (1)(d) in
accordance with general international law on the use of force, which judges AL KHASAWNEH,
ELARABY and SIMMA regarded as jus cogens.991 Indeed, if the argument of the United States
would have been followed, then a broad reading of measures necessary to protect the essential
security interests of the party to the treaty would have led to an interpretation which would
have allowed the measures the United States took. This would constitute a derogation from
the peremptory norm that prohibits the use of force and give the treaty a meaning contrary to
jus cogens.

§3. Legal consequences of jus cogens in the field of State responsibility

A. Introduction

238. Peremptory norms protect certain international norms from derogation because the
international community of States considers these norms of such importance that deviations
therefrom by a limited number of States are deemed to be invalid ab initio; treaties concluded
prior to the existence of the peremptory norm become void and terminate. Since each and
every State has recognized or accepted the norm to belong to jus cogens it might be expected
that the international community of States as a whole has an interest in protecting peremptory
norms from derogations and from violations. Nevertheless, having an interest does not entail
that the interest is legally recognized,992 that a State has a legal interest to bring action against
the States derogating or violating the peremptory norm. This is particularly evidenced by the
Vienna Convention on the Law of Treaties itself since it allows only the parties to the treaty
derogating from jus cogens to invalidate the treaty.993 However, the procedure of the Vienna
Convention on the Law of Treaties is not considered to be customary international law and in
any event does not pronounce on the legal interest of States in acting against violations of
peremptory norms outside the context of the law of treaties. Therefore, it remains to be
examined whether States under customary international law have a legal interest in protecting
peremptory norms against derogations and violations. In essence, this protection will be
performed by invoking the international responsibility of the States derogating or violating the
peremptory norm. In this regard it has to be noted that the conclusion of an agreement or the
adoption of another instrument derogating from a peremptory norm does not necessarily
imply a violation of the norm of jus cogens, yet the execution thereof will lead to the

990
Ibid., § 41.
991
Dissenting Opinion Judge AL KHASAWNEH, Oil Platforms (Iran v. United States of America), Merits,
Judgment, ICJ Rep. 2003, § 9; Dissenting Opinion Judge ELARABY, Oil Platforms (Iran v. United States of
America), Merits, Judgment, ICJ Rep. 2003, 291; Separate Opinion Judge SIMMA, Oil Platforms (Iran v. United
States of America), Merits, Judgment, ICJ Rep. 2003, § 9.
992
South West Africa (Ethiopia v. South Africa/Liberia v. South Africa), Second Phase, Judgment, ICJ Rep.
1966, §§ 49-51; Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase,
Judgment, ICJ Rep. 1970, § 46, § 54 and §§ 86-87; Separate Opinion Judge AMMOUN, l.c., § 35; Lac Lanoux
(Spain v. France), Award of 16 November 1957, Reports of International Arbitration Awards, Vol. XII, 315.
993
Article 66 Vienna Convention on the Law of Treaties (1969); see supra, No. 190.

219
international responsibility of the States concerned.994 In such case, a derogatory act will
result in the invalidity of the act and international responsibility. Conversely, a mere violation
of a peremptory norm will not entail invalidity, since as demonstrated previously, invalidity is
attached to a legal norm and not to mere breaches.995 Thus, claims against treaties derogating
from a peremptory norm can be brought on the basis of State responsibility for a breach of
international law. For instance, Portugal has invoked the responsibility of Australia for its
breach of the right of self-determination of the East Timorese people, a norm that in its view
had peremptory status, by its conclusion and implementation of the Timor Gap Treaty it had
concluded with Indonesia.996 Whether, this implies that a State may also ask for the invalidity
of the treaty because it violates a peremptory norm is an issue of remedies against a breach of
international law and will be discussed under this part.

B. The legal interest in invoking breaches of peremptory norms

239. The focus of this part will be on whether States that are not personally injured, have a
legal interest to invoke the responsibility of States for derogations and violations of
peremptory norms. In this respect, responsibility can be invoked through international
organizations or special treaty regimes which can provide for mechanisms generally
permitting States not personally injured to invoke the responsibility of the State committing a
violation, regardless of the peremptory nature of the norm; the inter-State complaint
procedures in human rights treaties are a perfect example of this. Nevertheless, the thesis will
not explore these mechanisms since they do not take into consideration the peremptory status
of the norm. Instead, the emphasis will be put on two other avenues of invoking State
responsibility, namely, bringing a case before the International Court of Justice and the taking
of countermeasures, through the use of the concept of obligations erga omnes, a notion that is
intrinsically linked with peremptory norms.

1. The concept of obligations erga omnes

240. The concept of obligations erga omnes was introduced in the famous Barcelona
Traction, Light and Power Company, Limited,997 in which the Court tried to remedy its
dubious latest decision in the South West Africa cases.998 In the latter cases the International

994
G. GAJA, “Jus Cogens beyond the Vienna Convention”, Recueil des Cours 1981-III, 281; W. CZAPLIŃSKI,
“Jus Cogens and the Law of Treaties”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules
of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 90; J.-M.
THOUVENIN, “La seizine de la CIJ en cas de violation des règles fondamentales”, in C. TOMUSCHAT and J.-M.
THOUVENIN (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga
Omnes, Leiden, Nijhoff, 2006, 317.
995
Supra, Nos. 204 et seq.
996
East Timor (Portugal v. Australia), Mémoire du gouvernement de la République portugaise, Volume I, 123,
at www.icj-cij.org/docket/files/84/6834.pdf.
997
Barcelona Traction Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, 3.
998
Separate Opinion Judge AMMOUN, Barcelona Traction, Light and Power Company, Limited (Belgium v.
Spain), Second Phase, Judgment, ICJ Rep. 1970, §§ 34-35; Dissenting Opinion Judge SCHWEBEL, Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional

220
Court of Justice in the second phase adhered to a strictly traditional view of legal interest and
standing, namely that States could only bring an action against another State before the Court
if they had been personally and directly injured.999 Although this dictum is generally correct
in that every personally and directly injured State has a legal interest, it does not entail that a
State solely has a legal interest if it is personally and directly affected by a breach of
international law. The decision of the Court overlooked the development in international law
at the time of extending the scope of legal interest to include rights and obligations which
were not owed to States individually, but collectively or owed to non-State actors, especially
individuals. In particular there were at the time of the judgment numerous treaties concluded
allowing States to have recourse to the International Court of Justice even though their rights
would not be directly affected.1000 Furthermore, as early as the S.S. Wimbledon case, the
Permanent Court of International Justice accepted that not directly injured States could bring a
case before it. In that case, the Court succinctly accepted the standing of Italy and Japan,
which were not directly affected by the decision of Germany not to allow passage of the S.S.
Wimbledon, on the basis that they were a party to the Treaty of Versailles and had
commercial shipping fleets.1001 Therefore, TAMS is correct to conclude that the strict judgment
of the International Court of Justice on the issue of standing in the Second Phase of the South
West Africa Cases did not reflect international law.1002 Hence a correction on this issue had to

Measures, Order of 10 May 1984, ICJ Rep. 1984, 197; M. BYERS, Custom Power and the Power of Rules,
Cambridge, Cambridge University Press, 1999, 196, note 144. J. CHARPENTIER, “Cour Internationale de Justice:
Affaire de la Barcelona Traction, Arrêt du 5 février 1970”, Annuaire Français de Droit International 1970, 312;
H.W.A. THIRLWAY, “The Law and Procedure of the International Court of Justice 1960-1989, Part One”,
British Yearbook of International Law 1989, 94 and 98; J.A. FROWEIN, “Reactions by Not Directly Affected
States to Breaches of Public International Law”, Recueil des Cours 1994-IV, 428; B. SIMMA, “From
Bilateralism to Community Interest”, Recueil des Cours 1994-VI, 295; E. MILANO, “Diplomatic Protection and
Human Rights before the International Court of Justice: Re-Fashioning Tradition”, Netherlands Yearbook of
International Law 2004, 111 and 115; I. SCOBBIE, “The Invocation of Responsibility for the Breach of
‘Obligations under Peremptory Norms of General International Law’”, European Journal of International Law
2002, 1208-1209.
999
This can be deduced from the Court’s opinion that although States may agree on jurisdictional clauses
granting jurisdiction to States that are not injured, this is exceptional and should be clearly laid down: South
West Africa (Ethiopia v. South Africa/Liberia v. South Africa), Second Phase, Judgment, ICJ Rep. 1966, § 44
and § 67.
1000
Article IX Convention on the Prevention and Punishment of the Crime of Genocide (1948); Article 8
Convention to Suppress the Slave Trade and Slavery (1926); Article 22 Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of Others (1949); Article 38 Convention relating to
the Status of Refugees (1951); Article 9 Convention on the Political Rights of Women (1952); Article 34
Convention on the Status of Stateless Persons (1954); Article 10 Supplementary Convention on the Abolition of
Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956); Article 10 Convention on the
Nationality of Married Women (1957); Article 14 Convention on the Reduction of Statelessness (1961); Article
22 International Convention on the Elimination of All Forms of Racial Discrimination (1965).
1001
S.S. Wimbledon (United Kingdom, France, Italy and Japan v. Germany, Poland Intervening), Judgment,
PCIJ Publ., Series A, No.1, 20. More astonishingly the treaty was applied against a non-member of the League,
the USSR, since according to the decision of the Court Germany was obliged pursuant to the Treaty of
Versailles to breach its duty of neutrality against the USSR, a State not a party to that convention.
1002
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 94-96; it has to be noted however that the decision of the International Court of Justice in the South
West Africa Cases initially centred on the interpretation of the clause in the Mandate agreement giving the
Permanent Court of International Justice jurisdiction over disputes arising out of the Mandate, see: South West
Africa (Ethiopia v. South Africa/Liberia v. South Africa), Preliminary Objections, Judgment, ICJ Rep. 1962,
341 and 343-344. The issue was later turned into a matter of standing in order to circumvent the decision on the

221
be made, ultimately done in Barcelona Traction, Light and Power Company, Limited in
which the Court made a distinction between international obligations which could only be
invoked by the directly affected State and obligations erga omnes in whose protection every
State had a legal interest.1003

241. Before going into the relationship between jus cogens and obligations erga omnes, it
will be clarified what is exactly meant with the notion of erga omnes, a concept whose use
predates the Barcelona Traction, Light and Power Company, Limited and has afterwards
expanded in scope. Originally and traditionally, the wording of “erga omnes” indicated a
widening of the circle of international subjects bound by a certain obligation or to respect a
certain situation, although they were not formally bound.1004 The most classical examples are
border treaties and other treaties establishing rights in rem: such conventions do not only
create legal effects between the parties, but must be recognized by all States.1005 Furthermore,
the concept of erga omnes featured in the case law of the International Court of Justice. In its
Advisory Opinion on the Reparation for Injuries Suffered in the Service of the United Nations
it held that the Members had endowed the United Nations with an objective legal personality,
also opposable against non-member States,1006 a statement that has been qualified as creating
an international personality erga omnes.1007 Besides bestowing the United Nations with an
erga omnes legal personality, the World Court has also held that decisions of the United
Nations General Assembly and Security Council create an erga omnes obligation towards
non-Members, although such States are according to the Charter only bound to respect the

interpretation of the jurisdictional clause in the first phase: South West Africa (Ethiopia v. South Africa/Liberia
v. South Africa), Second Phase, Judgment, ICJ Rep. 1966, §§ 60 et seq.
1003
However the Court seemed to qualify its earlier sweeping dictum later by holding that in the case of human
rights human rights instruments at the universal level do not allow States to bring a claim irrespective of the
nationality of the victims: Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second
Phase, Judgment, ICJ Rep. 1970, § 91. This issue will be discussed infra, Nos. 254-255.
1004
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 103-104; for use of the concept of erga omnes in this sense: Declaration Judge BEDJAOUI, Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 23; see also: Separate Opinion
Judge ad hoc KREĆA, Application of the Convention on the Prevention and the Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, § 51 and §§
57-59.
1005
See for title over territory: Island of Palmas Arbitration (United States v. The Netherlands), Reports of
International Arbitration Awards, Vol. II, 840; in the Armed Activities on the Territory of the Congo (New
Application: 2002) the Court reiterated its finding in the Reservations advisory opinion that the Genocide
convention did not only create rights and duties between the parties, but was binding on all States; it therefore
held that the obligations therein are obligations erga omnes: Armed Activities on the Territory of the Congo
(New Application: 2002) (Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility,
Judgment, ICJ Rep.2006, § 64.
1006
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Rep. 1949,
185.
1007
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 105; S. ROSENNE, “Some Reflections, Erga Omnes”, in A. ANGHIE and G. STURGESS (eds.), Legal
Visions of the 21st Century, Essays in Honour of Judge Christopher Weeramantry, The Hague, Kluwer Law
International, 1998, 513; Special Rapporteur WALDOCK, “Third Report on the Law of Treaties”, Yearbook of
the International Law Commission 1964, Vol. II, 31; J.-A. CARILLO SALCEDO, “Droit international et
souveraineté des états: Cours général de droit international public”, 257 Recueil des Cours 1996, 141.

222
principles of the United Nations.1008 In addition the Court used the concept of erga omnes to
indicate the binding effects of its judgments which are normally only binding upon the parties
of the dispute; ironically, in the South West Africa cases it recognized nevertheless that in
exceptional cases judgments could have erga omnes effects.1009

242. In Barcelona Traction, Light and Power Company, Limited, the Court departed from
this traditional understanding and used the concept of erga omnes not as to establish effects
on States which were not bound by a certain norm or situation, but to establish which States
have a legal interest in the protection of certain important norms of general international law
and universal or quasi-universal conventional norms.1010 It thus established that because of the
importance of certain norms every State had a legal interest in presenting a case before the
Court, even if they were not personally and directly affected by the breach. It did not use the
concept of erga omnes to extend the circle of States bound by the norm – in fact it assumed
that all States were bound by those important norms – but established an entitlement for each
and every State to protect those norms even if not directly affected by the breach. Of course,
the two notions could coincide, but that is not necessarily so. The circle of States bound by a
certain norm may be expanded, but this does not necessarily result in the granting of a legal
interest to each and every State to invoke the norm if not directly affected. The concept of
erga omnes in this sense has been reaffirmed in the East Timor case in which Portugal inter
alia based its claim against Australia on the erga omnes character of the right to self-
determination, a claim the Court seemed to accept, but could not alter the fact that the Court
had no jurisdiction.1011 That the qualification of an obligation as owed to the international
community or as a peremptory obligation does not impact on the jurisdiction of the Court was
reiterated in the Armed Activities on the Territory of the Congo (DRC v. Rwanda) and the
Application of the Convention on the Punishment and Prevention of the Crime of Genocide
case.1012 Furthermore, it indicated in the latter case that invoking the responsibility of
genocide for genocidal acts committed against non-nationals raises issues of standing, the
peremptory nature of the obligation and of the erga omnes nature of the obligations.1013

1008
See: 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 Rep. 1971, § 126;
Separate Opinion Judge DE CASTRO, l.c., 219; C.J. TAMS, Enforcing Obligations Erga Omnes in International
Law, Cambridge, Cambridge University Press, 2006, 108-109; W. GRAF VITZTHUM, “Article 2(6)”, in B.
SIMMA et al. (eds.), The Charter of the United Nations, A Commentary, Vol. I, Oxford, Oxford University
Press, 2002, 144; H.W.A. THIRLWAY, “The Law and Procedure of the International Court of Justice 1960-1989
– Part Eight”, British Yearbook of International Law 1996, 5.
1009
South West Africa (Ethiopia v. South Africa/Liberia v. South Africa), Second Phase, Judgment, ICJ Rep.
1966, § 70. See also: Separate Opinion Judge ad hoc KREĆA, Application of the Convention on the Prevention
and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits,
Judgment, ICJ Rep. 2007, § 58.
1010
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34.
1011
East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 29.
1012
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 64 and § 125; Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Merits, Judgment, ICJ Rep. 2007, § 147.
1013
Ibid., § 185.

223
243. Besides continuing to use the concept of erga omnes in its traditional and Barcelona
Traction meaning, the Court has inflated the concept even more. In some cases it has used the
wording of erga omnes in a merely descriptive manner. This use did not ascribe any legal
consequence to the obligation being erga omnes, but merely indicated that factually every
State was affected. Thus, in the Nuclear Tests cases the French unilateral statement was made
in public and erga omnes, or towards all States.1014 The concept was not used to broaden the
group of States bound by the obligation since the unilateral act was directed at all States and
the Court did not grant legal standing to all States.1015 Although an unfortunate and careless
use of the concept, more troublesome is the use of the concept of erga omnes in two recent
cases, where the Court did attach legal consequences to a norm being an erga omnes
obligation, but consequences which could not be reduced to the pre-Barcelona Traction
meaning or to the issue of legal standing. In the Application of the Convention on the
Punishment and Prevention of the Crime of Genocide the Court rather lapidary held that since
the duty to prevent and punish genocide is an obligation erga omnes, it is therefore applicable
extraterritorially.1016 In the case Serbia (and Montenegro) had argued that the Convention was
not applicable inter alia because the duty to prevent and punish genocide is limited to the
territory of the State party and since the events occurred outside Serbia and (Montenegro) the
Convention could not be applied.1017 The Court rejected this argument by quoting from its
advisory opinion on the Genocide Convention that the principles underlying the Genocide
Convention are recognized by all civilized nations as binding even outside conventional
bonds, stating that therefore the duty to punish and prevent genocide is an obligation erga
omnes and thus applicable outside the territory of the State party. Due to the lack of any clear
reasoning, it is impossible to construe the meaning of erga omnes in this context. It could
firstly refer to the traditional meaning of erga omnes taken into account the citation from the
advisory opinion that the Genocide Convention is not only binding as between the parties; it
might also refer to the legal interest of each and every State to punish and prevent genocide

1014
Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, § 50; Nuclear Tests (New Zealand v.
France), Judgment, ICJ Rep. 1974, § 52. See also: Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, ICJ Rep. 1984, §
55, where the United States argued that its modification of the declaration of acceptance of the Court’s
jurisdiction was effective erga omnes and in particular Nicaragua.
1015
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 114; H.W.A. THIRLWAY, “The Law and Procedure of the International Court of Justice 1960-1989,
Part One”, British Yearbook of International Law 1989, 11-12; G. GAJA, “Obligations Erga Omnes,
International Crimes and Jus Cogens, A Tentative Analysis of Three Related Concepts”, in J.H.H. WEILER, A.
CASSESE and M. SPINEDI (eds.), International Crimes of States, A Critical Analysis of the ILC’s Draft Article 19
of State Responsibility, Berlin, De Gruyter, 1989, 153. In fact, the Court stated that the unilateral statement
made erga omnes entailed that each State could take note thereof and that the statements would be effective:
Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, § 51; Nuclear Tests (New Zealand v. France),
Judgment, ICJ Rep. 1974, § 53.
1016
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Preliminary Objections, Judgment, ICJ Rep. 1996, § 31.
1017
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Preliminary Objections of the Federal Republic of Yugoslavia, 129-
130, at www.icj-cij.org/docket/files/91/8618.pdf.

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and launch a complaint before the Court.1018 But from neither follows that thus the Genocide
Convention is not limited to the territory of the party and that States have a duty to prevent
and punish genocide outside their territory.1019 Yet, pursuant to the Court an obligation erga
omnes differs from other norms in regard to its territorial scope and that violations occurring
outside States’ territory may lead to their responsibility being infringed.1020 Since the duty to
prevent international crimes is commonly present in treaties,1021 the dictum of the Court
entails far-reaching consequences. For instance, States have a duty to punish and prevent
torture,1022 the prohibition of which has been held to constitute an erga omnes obligation.1023
Does this entail that States have a duty to prevent torture worldwide and that they could
become responsible if they fail to prevent it? Unfortunately, the Court did not elaborate on
this dictum in the merits. It merely stressed that its dictum was limited to the punishment and
prevention of genocide, not to any other part of the Convention;1024 furthermore in its
elaboration on the duty to prevent genocide, it restricted its analysis to the Genocide
Convention stating that the duty of prevention depends from convention to convention and the
acts involved.1025 If this would also be the case concerning the territorial application of the
duty to prevent if that duty is an erga omnes obligation remains clouded by mysteries.

244. On another occasion, in its advisory opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the Court held that since Israel
had infringed several obligations erga omnes, in particular the right to self-determination and
certain obligations under international humanitarian law, other States had the obligation not to
recognize the situation resulting from the construction of the wall and not to render aid or
assistance in constructing the wall.1026 Again the consequences flowing from erga omnes –
the duty not to recognize and not to render aid and assistance – cannot be regarded as being
related to the traditional understanding of erga omnes or to erga omnes obligations conferring
standing to not-directly affected States. Instead, the Court applied the legal consequences
resulting from serious violations of peremptory norms as set out in the Draft Articles on

1018
C. GRAY, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Admissibility and Jurisdiction”, International and Comparative Law
Quarterly 2005, 692 (calling the passage “obscure”).
1019
With regard to the punishment the Convention itself states that the prosecution of genocide is only possible
on the basis of the territoriality principle or through an international criminal tribunal: Article VI Convention on
the Prevention and Punishment of the Crime of Genocide (1948). Furthermore, pursuant to Article 29 Vienna
Convention on the Law of Treaties (1969) treaties are only applicable within the territory of the State party.
1020
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 110.
1021
See the examples listed by the Court in the merits phase: Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits,
Judgment, ICJ Rep. 2007, § 429.
1022
Article 2 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment
(1984).
1023
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, §§ 151-
152.
1024
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, § 147.
1025
Ibid., § 429.
1026
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Rep. 2004, § 159.

225
Responsibility of States for Internationally Wrongful Acts to erga omnes obligations.1027 The
reasons for attaching these consequences to the notion of obligations erga omnes are not clear,
as is the invocation of the concept itself, which was unnecessary.1028 The Court might be
influenced by several written briefs in which the right to self-determination and the most
important obligations of international humanitarian law were considered to be obligations
erga omnes and peremptory norms.1029 Nevertheless, it still remains unclear why the Court
then solely relied upon the concept of obligations erga omnes and did not invoke the
peremptory status of these norms and their legal consequences for third States under the law
of State responsibility.

245. From the foregoing it is clear that only obligations erga omnes, or obligations owed to
the international community whose members considering the importance of the rights
involved have a legal interest in their protection, are relevant for the discussion on State
responsibility for violations, including derogations, of peremptory norms. The traditional
meaning of erga omnes only widens the circle of States being bound, without however giving
them necessarily the right to invoke the breach of the obligation. Border treaties are the
clearest example: they have effect erga omnes, in that every State has to recognize the
established border, but they do not have a legal interest in invoking a breach of the border
treaty. Furthermore, the descriptive use of erga omnes to indicate that factually all States were
addressed by a certain statement does not imply any legal consequence and is thus not
relevant for the present examination. Lastly, the expansion of erga omnes with regard to the
territorial application of the obligation or with regard to certain consequences attached to
violations of obligations erga omnes is still too particular, disputed and vague to draw general
conclusions therefrom. In any event, the extension of the territorial scope of an obligation
does not entail that States other than the injured State have a legal interest in invoking the
obligation.1030 Finally, concerning the consequences of a breach of an erga omnes obligation
for third States, such consequences are actually attached to serious breaches of peremptory
norms1031 and the Court can be criticized for its incorrect use of terminology. Nevertheless,
even if one accepts the dictum of the Court, it merely concerned the consequences of a

1027
Ibid.
1028
See in this respect the Separate Opinion of Judge HIGGINS, Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 216-217, § 38; Judge KOOIJMANS
as well had difficulties in understanding why a violation of an erga omnes obligation resulted in these
consequences: Separate Opinion Judge KOOIJMANS, l.c., 239, § 40.
1029
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
Written Statement of the Kingdom of Saudi Arabia (30 January 2004), 3, at www.icj-
cij.org/docket/files/131/1543.pdf; Id., Written Statement of Egypt (28 January 2004), 32, at http://www.icj-
cij.org/docket/files/131/1547.pdf; Id., Written Statement of the League of Arab States (28 January 2004), § 8.2,
at http://www.icj-cij.org/docket/files/131/1545.pdf; Id., Written Statement of Palestine (30 January 2004), §§
634-636, at http://www.icj-cij.org/docket/files/131/1555.pdf; Id., Written Statement of Jordan (30 January
2004), 54, at http://www.icj-cij.org/docket/files/131/1559.pdf; Id., Written Statement of South Africa (30
January 2004), § 25, at http://www.icj-cij.org/docket/files/131/1597.pdf; Id., Written Statement of Morocco (30
January 2004), 12-13, at http://www.icj-cij.org/docket/files/131/1585.pdf; Id., Written Statement of France (30
January 2004), §§ 69-71, at http://www.icj-cij.org/docket/files/131/1591.pdf.
1030
C.J. TAMS, o.c., 111-112 (speaking of a deepening of the international obligation); others have argued that
the Court mixed obligations erga omnes and jus cogens: A. PAULUS, Die internationale Gemeinschaft im
Völkerrecht, Munich, Beck, 2001, 376; B. SIMMA, “From Bilateralism to Community Interest, Recueil des
Cours 1994-VI, 299.
1031
See: Articles 40-41 Draft Articles on State Responsibility for Internationally Wrongful Acts (2001).

226
violation of an obligation erga omnes in the meaning of the Barcelona Traction case.1032
Hence, in such case the conclusion would merely be that every State has an interest in
invoking the violation of the rights protected by the obligation erga omnes and that in
addition certain consequences would apply for all not directly affected States. In light of the
issue of the invocation of State responsibility for breaches of peremptory norms, the following
parts will only focus on obligations erga omnes in the sense used in Barcelona Traction, Light
and Power Company, Limited.

2. The connection between jus cogens and obligations erga omnes

246. In doctrine a close connection between the concept of jus cogens and obligations erga
omnes is recognized. Some have found an identity between the norms covered by the concepts
of jus cogens and obligations erga omnes. Both concepts are considered just to be two sides
of the same coin.1033 Nevertheless, the majority of legal scholars are of the opinion that all
norms of jus cogens also create obligations erga omnes, but that the reverse is not correct: not
all obligations erga omnes are peremptory norms.1034 Theoretically the majority in doctrine
has a point: whereas peremptory norms operate preventively by declaring derogatory norms
void even if they have not yet taken effect, obligations erga omnes are not concerned with

1032
See the reference to the East Timor case and the Barcelona Traction case: Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, § 88 and §§
155-156.
1033
B. SIMMA, “From Bilateralism to Community Interest”, Recueil des Cours 1994-IV, 300; see also: C.
DOMINICÉ, “The International Responsibility of States for Breach of Multilateral Obligations”, European
Journal of International Law 1999, 358-359; A.J.J. DE HOOGH, Obligations Erga Omnes and International
Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of
States, Nijmegen, s.n., 1995, 48; A. VERMEER-KÜNZLI, “A Matter of Interest: Diplomatic Protection and State
Responsibility Erga Omnes”, International and Comparative Law Quarterly 2007, 569; E. MILANO,
“Diplomatic Protection and Human Rights before the International Court of Justice: Re-Fashioning Tradition”,
Netherlands Yearbook of International Law 2004, 115-116; A. ORAKHELASHVILI, “International Public Order
and the International Court’s Advisory Opinion on Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory”, Archiv des Völkerrecht 2005, 252.
1034
M. BYERS, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, Nordic Journal
of International Law 1997, 236-237; R.St.J. MACDONALD, “Fundamental Norms in Contemporary International
Law”, Canadian Yearbook of International Law 1987, 138; J.-A. CARILLO SALCEDO, “Droit international et
souveraineté des états: Cours général de droit international public”, 257 Recueil des Cours 1996, 144; J.A.
FROWEIN, “Collective Enforcement of International Obligations”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1987, 68; L.-A. SICILIANOS, “The Classification of Obligations and the Multilateral
Dimension of the Relations of International Responsibility”, European Journal of International Law 2002,
1137; K. ZEMANEK, “New Trends in the Enforcement of Erga Omnes Obligations”, Max Planck Yearbook of
United Nations Law 2000, 6 (however ZEMANEK makes no distinction between obligations owed to the
international community as a whole and obligations owed to a specific collective group: Ibid., 12); P.-M.
DUPUY, “A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and
Codification of the Law of State Responsibility”, European Journal of International Law 2002, 1062; J.-M.
THOUVENIN, “La seizine de la CIJ en cas de violation des règles fondamentales”, in C. TOMUSCHAT and J.-M.
THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga
Omnes, Leiden, Nijhoff, 2006, 326-327; E. DE WET, “The Emergence of International and Regional Value
Systems as a Manifestation of the Emerging International Constitutional Order”, Leiden Journal of
International Law 2006, 616-617. This is also the position of the majority of the International Law
Commission: “Report of the International Law Commission on the Work of Its Fiftieth Session”, Yearbook of
the International Law Commission 1998, Vol. II, Part 2, 69, §§ 279-280 and 76, § 326.

227
invalidity but with legal interest for acting against a violation of the rights protected by the
obligation erga omnes.1035 Nevertheless, substantially at least both categories overlap,1036 and
it is submitted that jus cogens norms and obligations erga omnes cover the same norms.

247. Both peremptory norms and obligations erga omnes depend on the importance of the
values involved. The criterion to identify norms as having peremptory status is that they
protect important values of the international community. Similarly, obligations erga omnes
are identified in light of the importance of the rights they protect; it is because of this
importance that they establish a legal interest for each and every State.1037 Obligations erga
omnes are not identified on the basis of their non-reciprocal character or on their non-
bilateralisable nature, as some scholars have contended.1038 If that would be the case, all
interdependent obligations, i.e. obligations having to be performed between all the parties in
order to reach the desired outcome,1039 and all absolute obligations, i.e. obligations upon
States to adopt a certain parallel conduct within its jurisdiction,1040 would qualify as
obligations erga omnes. At least for interdependent obligations this would be unnecessary
since they fall under Article 42 (b) (ii) Draft Articles on State Responsibility for
Internationally Wrongful Acts and not under Article 48 (1)(b).1041 Concerning absolute
obligations, this would conflate the notion of obligations erga omnes to all obligations
according to which States have to adopt parallel conduct within their own jurisdiction, for
instance the adoption or harmonization of certain national laws. This would go far beyond the
examples given by the Court or beyond the already broad contention that all human rights
norms and obligations protecting the environment are obligations erga omnes.1042

1035
C.J. TAMS, o.c., 152; G. GAJA, “Obligations Erga Omnes, International Crimes and Jus Cogens: A Tentative
Analysis of Three Related Concepts”, in J.H.H. WEILER, A. CASSESE and M. SPINEDI (eds.), International
Crimes of States, A Critical Analysis of the ILC’s Draft Articicle 19 of State Responsibility, Berlin, de Gruyter,
1989, 159.
1036
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 111-112, § 7; M. PAYANDEH,
“Rechtscontrolle des UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 2006, 56.
1037
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 33; “Report of the International Law Commission on the Work of Its Twenty-Eight Session”,
Yearbook of the International Law Commission 1976, Vol. II, Part 2, 99; P.D. COFFMAN, “Obligations Erga
Omnes and the Absent Third State”, German Yearbook of International Law 1996, 309 (adding however a
second criterion of the incapability of the United Nations to represent the community interest); D. SHELTON,
“Normative Hierarchy in International Law”, American Journal of International Law 2006, 318.
1038
See: Special Rapporteur ARANGIO-RUIZ, “Fourth Report on State Responsibility”, Yearbook of the
International Law Commission 1992, Vol. II, Part 1, 34, § 92; C. ANNACKER, “The Legal Régime of Erga
Omnes Obligations under International Law”, Austrian Journal of Public International Law 1994, 135-136 and
149; I.D. SEIDERMAN, Hierarchy in International Law, The Human Rights Dimension, Antwerp, Intersentia,
2001, 129; O. LOPEZ PEGNA, “Counter-Claims and Obligations Erga Omnes before the International Court of
Justice”, European Journal of International Law 1998, 732-733.
1039
Special Rapporteur FITZMAURICE, “Second Report on the Law of Treaties”, Yearbook of the International
Law Commission 1957, Vol. II, 54.
1040
Ibid.
1041
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 117, § 5, and 119, §§ 13-14.
1042
See for instance: I.D. SEIDERMAN, Hierarchy in International Law, The Human Rights Dimension,
Antwerp, Intersentia, 2001, 126-129; C. ANNACKER, “Régime of Erga Omnes Obligations under International
Law”, Austrian Journal of Public International Law 1994, 146-148.

228
Furthermore, the Court itself gave an example of an obligation erga omnes that is perfectly
reciprocal, namely the prohibition of aggression.1043 Hence, obligations erga omnes do not
have to be non-reciprocal or non-bilateralisable, but are selected on the basis of their
importance, as is clear from the selection of the prohibition of aggression as an obligation
erga omnes.

248. Peremptory norms and obligations erga omnes are thus both selected on the basis of the
importance of the values they protect. Furthermore, peremptory norms are necessarily
obligations erga omnes in the sense that peremptory norms imply a legal interest for all States
to see the norm respected.1044 If that would not be the case, States would be able to conclude a
derogatory treaty or adopt in any other way a derogatory norm, which could not be attacked
by any other member of the international community since they would lack a legal interest
and the treaty or other norm would be entitled to exist.1045 Of course, pursuant to Article 53
Vienna Convention on the Law of Treaties that treaty or norm would be invalid and create no
legal rights and obligations, but as long as other States cannot invoke the responsibility of the
States making the derogation because of lack of legal interest there is nothing to prevent these
States to continue to honour as between themselves the derogatory agreement. Hence, an
obligation erga omnes is the natural consequence of the peremptory status of a norm.1046 State
practice has confirmed that peremptory norms indeed imply obligations erga omnes, as is
evidenced by statements made in the framework of the International Law Commission’s
codification of the law on State responsibility and by legal briefs presented to the
International Court of Justice.1047 Similarly, the International Criminal Tribunal for the

1043
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34.
1044
PELLET, “2533rd Meeting of the International Law Commission”, Yearbook of the International Law
Commission 1998, Vol. I, 101, § 25; ECONOMIDES, l.c., 104, § 49; SIMMA, “2534th Meeting of the International
Law Commission”, Yearbook of the International Law Commission 1998, Vol. I, 106, § 12; RODRÍGUEZ
CEDEÑO, “2538th Meeting of the International Law Commission”, Yearbook of the International Law
Commission 1998, Vol. I, 140, § 33; “Report of the International Law Commission on the Work of Its Fiftieth
Session”, Yearbook of the International Law Commission 1998, Vol. II, Part 2, 69, § 279. Scholars that are of
the opinion that peremptory norms are necessarily obligations erga omnes include: A. PAULUS, Die
internationale Gemeinschaft im Völkerrecht, Munich, Beck, 2001, 413-415; G. GAJA, “Jus Cogens beyond the
Vienna Convention”, Recueil des Cours 1981-III, 281; G. GAJA, “Obligations Erga Omnes, International
Crimes and Jus Cogens, A Tentative Analysis of Three Related Concepts”, in J.H.H. WEILER, A. CASSESE and
M. SPINEDI (eds.), International Crimes of States, A Critical Analysis of the ILC’s Draft Articicle 19 of State
Responsibility, Berlin, de Gruyter, 1989, 158-159; T. MERON, “On a Hierarchy of International Human
Rights”, American Journal of International Law 1986, 11; A. PELLET, “Can a State Commit a Crime?
Definitely, Yes!”, European Journal of International Law 1999, 429; S. KADELBACH, Zwingendes Völkerrecht,
Berlin, Duncker & Humblot, 1992, 32-33; C.A. GÜNTHER, Die Klagebefugnis der Staaten in internationalen
Streitbeilegungsverfahren, Berlin, C.F. Heymanns, 1999, 111-114.
1045
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 148-149.
1046
A. ORAKHELASHVILI, “International Public Order and the International Court’s Advisory Opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, Archiv des Völkerrecht
2005, 253.
1047
See: Observations and Comments of the Federal Republic of Germany, UN Doc. A/CN.4/448, 137;
Observations and Comments of Switzerland, UN Doc. A/CN.4/448, 100; Armed Activities on the Territory of
the Congo (New Application: 2002)(Democratic Republic of Congo v. Rwanda), Demande en indication de
mesures conservatoires, 13, at www.icj-cij.org/docket/files/126/8277.pdf; Id., Memorial of Rwanda, § 3.17, at
www.icj-cij.org/docket/files/126/8280.pdf; Congo reiterated its position during the oral proceedings: Activities

229
Former Yugoslavia has recognized the link between the two concepts.1048 It might be argued
that this view annihilates any effect of the dispute settlement procedure established by the
Vienna Convention. Nevertheless, this is not necessarily so. The dispute settlement procedure
can remain fully effective in case one of the parties to the treaty alleges that the treaty is
invalid because it derogates from a peremptory norm. The main reason the procedure was
established was precisely to prevent parties to the treaty to invoke a supposedly established
peremptory norm in order to absolve themselves from a burdensome treaty obligation.1049 By
subjecting such a claim to a dispute settlement mechanism with a possible recourse to the
International Court of Justice to decide whether the treaty indeed goes against a peremptory
norm, such frivolous complaints are prevented. In any event, the procedure states nothing
about the legal interest of third States to invoke the international responsibility of the State
parties for the conclusion of such a treaty.

249. The fact that obligations erga omnes necessary follow from peremptory norms does not
logically entail that necessarily all obligations erga omnes are peremptory. As has been
indicated before, jus cogens and obligations erga omnes have different purposes. The former
is concerned with invalidity of the derogatory norm even if it has not produced any effect, the
latter deals with the legal interest to invoke a breach of a norm that is considered important by
the international community of States as a whole. Hence, theoretically it cannot be excluded
that certain norms are of such an importance to create an obligation erga omnes, but not that
important to qualify them as peremptory norms. However on a closer look, this theoretical
possibility cannot be maintained and peremptory norms and obligations erga omnes are
identical.1050 Indeed, it is difficult to conceive how obligations erga omnes can be regarded as
owed to the international community, while at the same time members of the international
community can validly set them aside and create new derogatory agreements.1051 In such case
obligations erga omnes are dispositive and a later custom or treaty between a limited group of
States can easily and legally supplant it on the basis of lex posterior derogat legi priori and
lex specialis derogat legi generali. In addition, it will be very difficult to invoke the

on the Territory of the Congo (New Application: 2002)(Democratic Republic of Congo v. Rwanda), Request for
the Indication of Provisional Measures, CR 2002/36, 13 June 2002, 51, at http://www.icj-
cij.org/docket/files/126/4147.pdf.
1048
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, §§ 151-
152.
1049
Supra, No. 188; J.A. FROWEIN, “Collective Enforcement of International Obligations”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1987, 78; B. SIMMA, “From Bilateralism to Community
Interest”, Recueil des Cours 1994-VI, 289.
1050
East Timor (Portugal v. Australia), Réplique du gouvernement de la République portugaise, Volume I, 114,
at http://www.icj-cij.org/docket/files/84/6838.pdf; B. SIMMA, “From Bilateralism to Community Interest”,
Recueil des Cours 1994-IV, 300; see also: C. DOMINICÉ, “The International Responsibility of States for Breach
of Multilateral Obligations”, European Journal of International Law 1999, 358-359; A.J.J. DE HOOGH,
Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and
Enforcement of the International Responsibility of States, Nijmegen, s.n., 1995, 48; L. HANNIKAINEN,
Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status,
Helsinki, Lakimiesliiton Kustannus, 1988, 4-6; H.B. REIMAN, Jus Cogens in Völkerrecht, Zurich, Schulthess,
1971, 97; A. GÓMEZ ROBLEDO, “Le jus cogens international: Sa génèse, sa nature, ses functions”, Recueil des
Cours 1981-III, 158; C. TOMUSCHAT, “International Law: Ensuring the Survival of Mankind on the Eve of a
New Century”, 281 Recueil des Cours 1999, 87.
1051
C. DOMINICÉ, “The International Responsibility of States for Breach of Multilateral Obligations”, European
Journal of International Law 1999, 358-359.

230
international responsibility of States for a violation of a dispositive obligation erga omnes in
case of a reciprocal or bilateral obligation erga omnes, that are not excluded from the scope of
obligations erga omnes if one adheres to the view that the importance of the right is the
determining factor. For suppose that the prohibition on the use of force is not a peremptory
norm, but only an obligation erga omnes. A group of States conclude a treaty establishing a
right to intervene military in another State party to protect a certain political constellation
even without the invitation of the government of that State. Towards third States they adhere
to the absolute prohibition on the use of force. How could those States invoke the
responsibility of the States party to the treaty? They of course could claim that the treaty as
such violates an important interest of the international community, but at the same time that
interest is not considered to be of such an importance that derogatory agreements are
excluded. On what basis could the International Court of Justice declare that a later, special
(in the sense of a more restricted number of parties) and valid treaty should not be applied
between the parties? Consequently, if one adheres to the separate existence of peremptory
norms and obligations erga omnes, bilateralisable or reciprocal obligations seem to be
excluded from the scope of obligations erga omnes.
It could be argued that this reasoning will not apply to non-reciprocal important
obligations, but then the legal interest in invoking responsibility will in the end not depend on
the importance of the norm, but on the structure of the international obligation, namely on the
non-reciprocal character of the obligation. In this respect, it has to be pointed out that even
unimportant non-reciprocal obligations will create a legal interest for each and every State to
invoke the responsibility.1052 Consequently, by accepting dispositive obligations erga omnes
the criteria of importance loses any significance. Furthermore, in case of dispositive non-
reciprocal obligations erga omnes it would be hard to distinguish such obligations erga omnes
from obligations establishing a collective interest, especially when all States have agreed by
treaty or through custom to achieve some collective goal and for that purpose constitute a
community of States of a functional character.1053 Such obligations have sometimes been
labelled obligations erga omnes partes to indicate that responsibility for breach of the
obligation can only be invoked by the States bound by the collective obligation. But the
notion of obligations erga omnes partes also indicates the dispositive nature of such
obligations: States may decide to leave the functional community and create a different
regime. As a result, if dispositive non-reciprocal obligations erga omnes are recognized, these
are in reality indistinguishable from obligations erga omnes partes. In this respect it has to be
noted that TAMS, who does recognize dispositive obligations erga omnes,1054 limits the notion
of obligations erga omnes partes to collective obligations created by treaties, whereas
obligations erga omnes are created through custom.1055 However, the International Law
Commission includes custom as a means to create obligations erga omnes partes.1056

1052
Supra, No. 247.
1053
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 118-119, § 11.
1054
C.J. TAMS, Enforcing Obligations Erga Omnes in International Law, Cambridge, Cambridge University
Press, 2006, 152 et seq.
1055
Ibid., 120-121. This is also the position of DUPUY: P.-M. DUPUY, “A General Stocktaking of the
Connections between the Multilateral Dimension of Obligations and Codification of the Law of State
Responsibility”, European Journal of International Law 2002, 1072.
1056
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 126, § 6.

231
Although obligations erga omnes may be limited to customary law this does not necessarily
entail that obligations erga omnes partes can only have a treaty basis. Furthermore, the Court
was clear that obligations erga omnes could derive from general international law, meaning
customary international law,1057 and “international instruments of a universal and quasi-
universal character”.1058 Thus, treaties and custom can create obligations erga omnes and
obligations erga omnes partes. The main difference between the two forms of obligations lies
thus not in their different sources, but in the relative importance of the rights involved.1059
This entails that obligations erga omnes partes can be set aside, but that obligations erga
omnes cannot, because they are also jus cogens norms.1060

250. The final question remains whether the International Court of Justice equated
obligations erga omnes with peremptory norms. It is highly likely that it did.1061 Both Article
53 and the obiter dictum of Barcelona Traction, Light and Power Company, Limited refer to
the concept of the international community as a whole. In addition, the examples enumerated
in that case were also examples which the International Law Commission gave during the
discussions on the law of treaties1062 and that featured in comments of States during the
Vienna Conference.1063 Moreover, in his separate opinion Judge AMMOUN did mention jus
cogens and linked it to the issue of standing.1064 Recently, the International Court of Justice
has strengthened this assertion in the East Timor Case and in the Advisory Opinion on the
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories. In
both cases it was argued that the right to self-determination was a peremptory norm;1065 in the

1057
See supra Chapter 1, Section 2, § 2, D, on the meaning of general international law in the case law of the
International Court of Justice.
1058
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34.
1059
As CRAWFORD remarked in the context of human rights, human rights consist of obligations erga omnes
and erga omnes partes, the difference depending on the universality and importance of the rights: Special
Rapporteur CRAWFORD, “Third Report on State Responsibility”, Yearbook of the International Law
Commission 2000, Vol. II, Part 1, 32, note 185.
1060
This explains the reference to custom and (quasi) universal treaties, since custom and treaties are the
sources that can create peremptory norms: supra, No. 146. In addition, the non-acceptance of some States has
been found not to form a bar against allocating peremptory status to a norm, which can explain the reference to
quasi universal treaties. In any event, from the moment a norm is regarded as peremptory its specific source
becomes irrelevant since all States become bound by the peremptory norm.
1061
J. CHARPENTIER, “Cour Internationale de Justice: Affaire de la Barcelona Traction, Arrêt du 5 février 1970”,
Annuaire Français de Droit International 1970, 311; A. ORAKHELASHVILI, “International Public Order and the
International Court’s Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory”, Archiv des Völkerrecht 2005, 253.
1062
“Report of the International Law Commission on the Work of Its Eighteenth Session”, Yearbook of the
International law Commission 1966, Vol. II, 248.
1063
See: R.St.J. MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Yearbook
of International Law 1987, 132 and 138; A.J.J. DE HOOGH, Obligations Erga Omnes and International Crimes:
A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States,
Nijmegen, s.n., 1995, 48; A.J.J. DE HOOGH, “The Relationship between Jus Cogens, Obligations Erga Omnes
and International Crimes: Peremptory Norms in Perspective”, Austrian Journal of Public International Law
1991, 193.
1064
Separate Opinion Judge AMMOUN, Barcelona Traction, Light and Power Company Ltd. (Belgium v. Spain),
Second Phase, Judgment, ICJ Rep. 1970, § 34.
1065
East Timor (Portugal v. Australia), Mémoire du gouvernement de la République portugaise, Volume I, 123,
at www.icj-cij.org/docket/files/84/6834.pdf; Legal Consequences of the Construction of A Wall in the Occupied

232
former case, the Court accepted that the right of self-determination was an obligation erga
omnes, but dismissed the case on the basis of lack of jurisdiction.1066 In the latter case, it held
that Israel had violated the right of self-determination of the Palestinian people and certain
obligations of international humanitarian law and that these involved obligations erga omnes.
However, in determining the duties of other States towards these breaches of erga omnes
obligations, the Court implicitly applied Article 41 Draft Articles on State Responsibility for
Internationally Wrongful Acts, which obliges States not to recognize as lawful a situation
created by a serious breach of a peremptory norm, nor render aid or assistance in maintaining
that situation.1067 Finally in the Application of the Convention on the Punishment and
Prevention of the Crime of Genocide, it linked the issue of standing to the peremptory
obligation of the norm and the erga omnes character of the obligation,1068 thereby indicating
that the peremptory character of the norm is linked to the issue of standing and obligations
erga omnes. In addition judge ad hoc KREĆA considered the Genocide Convention as
including rights and obligations erga omnes and being part of jus cogens.1069 Nevertheless, its
recent case on the Armed Activities of the Territory of the Congo between the Democratic
Republic of the Congo and Rwanda may cast some doubt on the convergence of peremptory
norms and obligations erga omnes. In that case it held that the rights and obligations arising
from the Genocide Convention are binding upon all States and thus erga omnes; yet, the erga
omnes nature does not confer jurisdiction on the Court in accordance with its dictum in the
East Timor Case; the Court then continued that the same applied to the relationship between
the jurisdiction of the Court and a peremptory norm.1070 This reasoning implies that erga
omnes obligations and peremptory norms are not identical. Nonetheless, for the reasons set
out above it is unconvincing to regard peremptory norms and obligations erga omnes as two
sets of norms that overlap but are not identical since this would imply the existence of
obligations erga omnes that are important to the international community as a whole, but not
so important as to prohibit derogatory regimes.

3. Consequences of obligations erga omnes

251. In the previous part it has been established that peremptory norms and obligations erga
omnes overlap. Whereas the peremptory character of a norm refers to its hierarchical relation
towards other norms, the erga omnes nature of peremptory norms indicates which entities
may invoke breaches of the norms. According to the International Court of Justice in the

Palestinian Territory, Advisory Opinion, Written Statement of the Kingdom of Saudi Arabia (30 January 2004),
3, at www.icj-cij.org/docket/files/131/1543.pdf; Id., Written Statement of the League of Arab States (28 January
2004), § 8.2 and § 11.9 at http://www.icj-cij.org/docket/files/131/1545.pdf; Id., Written Statement of Jordan (30
January 2004), 54-55, at http://www.icj-cij.org/docket/files/131/1559.pdf; Id., Written Statement of South
Africa ( 30 January 2004), § 25, at http://www.icj-cij.org/docket/files/131/1597.pdf.
1066
East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 29.
1067
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory
Opinion, ICJ Rep. 2004, §§ 155-159.
1068
Application of the Convention on the Punishment and Prevention of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, § 185.
1069
Separate Opinion Judge ad hoc KREĆA, l.c., § 117. See also: Separate Opinion Judge RANJEVA, East Timor
(Portugal v. Australia), Judgment, ICJ Rep. 1995, 131, equating jus cogens and obligations erga omnes.
1070
Armed Activities of the Territory of the Congo (New Application: 2002)(Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 64.

233
Barcelona Traction case, every State has a legal interest in the protection of these norms. This
is confirmed by Article 48 Draft Articles on Responsibility of States for Internationally
Wrongful Acts, granting not directly injured States the legal interest to invoke a breach of an
obligation owed to the international community as a whole. From this it is concluded that
States have legal standing before the International Court of Justice. In general it is indeed
correct to state that having a legal interest implies standing to invoke the responsibility of a
State.1071 However having a legal interest does not automatically entail that one can invoke
that legal interest before a specific dispute settlement mechanism: that will in the end depend
on the institutional laws of the organ.1072 Nevertheless, what has been set aside by Article 48
is the contention that obligations erga omnes cannot be invoked by each State individually,
but only by collective organs, representing the international community as a whole.1073
Indeed, that Article gives each State individually, not directly injured by the breach of an
obligation erga omnes, the right to invoke the breach.

252. In the following sections it will be examined whether the Court did grant the right of
standing to not-directly injured States. Although the language of the Court in Barcelona
Traction, Light and Power Company, Limited does imply such a right, it has been argued that
for various reasons this dictum cannot be read or should not be read as conferring standing on
not-directly affected States. Furthermore, having a legal interest does not entail that the Court
will have jurisdiction, especially if the breach of the peremptory norm/obligation erga omnes
consists in the conclusion of a derogatory agreement, as was evidenced in the East Timor
case. Finally, it has to be examined what type of remedies the International Court of Justice
can pronounce, provided it accepts standing for violations of obligations erga omnes. Related
to the issue of standing before the International Court of Justice is the question whether not-
directly affected States (and international organizations) may take countermeasures against

1071
A.J.J. DE HOOGH, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the
Implementation and Enforcement of the International Responsibility of States, Nijmegen, s.n. 1995, 22.
1072
C.J. TAMS, o.c., 162; B.-O. BRYDE, “Verpflichtungen Erga Omnes aus Menschenrechten”, Berichte der
Deutschen Gesellschaft für Völkerrecht 1994, 180-181; A. PAULUS, Die internationale Gemeinschaft im
Völkerrecht, Munich, Beck, 2001, 371-372.
1073
See: Declaration Judge ODA, Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Preliminary Objections,
Judgment, ICJ Rep. 1996, § 4; East Timor (Portugal v. Australia), Countermemorial of Australia, §§ 262-263,
at http://www.icj-cij.org/docket/files/84/6837.pdf (but see: Nuclear Tests (Australia v. France), Memorial on
Jurisdiction and Admissibility Submitted by the Government of Australia, § 431 and § 488, at http://www.icj-
cij.org/docket/files/58/9443.pdf); R. AGO, “Obligations Erga Omnes and the International Community”, in
J.H.H. WEILER, A. CASSESE and M. SPINEDI (eds.), International Crimes of States, A Critical Analysis of the
ILC’s Draft Article 19 of State Responsibility, Berlin, de Gruyter, 1989, 238; K. SACHARIEW, “State
Responsibility for Multilateral Treaty Violations: Identifying the Injured State and Its Legal Status”,
Netherlands International Law Review 1988, 282-283; D.W. GREIG, “Reciprocity, Proportionality and the Law
of Treaties”, Virginia Journal of International Law 1994, 304. Although the International Court of Justice
indeed qualified obligations erga omnes as obligations owed to the international community, it immediately
added that they concern all States and that they have a legal interest in upholding this obligation. Furthermore,
the dictum was made in the context of standing of States: C.J. TAMS, o.c., 175-176. Finally, in other cases
where obligations erga omnes were invoked the Court did not state that these obligations could only be invoked
by the international community as a whole: East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 29;
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, § 185 and §§ 368 et seq. in which
the Court dismissed the claim because Bosnia and Herzegovina had failed to provide evidence and not because
it could not invoke a violation of an obligation erga omnes in its individual capacity.

234
States violating peremptory norms/obligations erga omnes. Again, having a legal interest in
the respect for a peremptory norm does not necessarily imply the power to take
countermeasures as a non-directly affected State or international organization.

a. Legal standing before the International Court of Justice

253. It is generally accepted that the International Court of Justice by its dictum in
Barcelona Traction, Light and Power Company, Limited did grant standing to all States in
case of violations of obligations erga omnes,1074 although the dictum is not explicit in this
regard. However, legal interest and standing before the International Court of Justice is
considered to be closely related,1075 a conclusion that is confirmed by a closer look at the
context of the case. Indeed, the Court made the dictum while investigating whether Belgium
could claim a legal interest to protect its nationals, shareholders of a Canadian company. In
this context it introduced the essential distinction between obligations erga omnes and
obligations arising in the field of diplomatic protection, where claims have to fulfil the
requirement of the nationality of the claim.1076 For claims based upon diplomatic protection
the Court held that for such claims, the right to bring the claim has to be demonstrated.1077 In
other words, Belgium had to show a legal interest to bring proceedings before the
International Court of Justice and it was in this framework – a discussion on when a State has
a legal interest to bring a case before the International Court of Justice – that the dictum on
obligations erga omnes was made. Secondly, the recognition of a broad right of standing
flows not only from the context of the judgment, but also from the wider context of the
Court’s case law. The case is considered to contradict the final judgment in the South West

1074
C.J. TAMS, o.c., 197; L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical
Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 5 and 269 et seq; D.
SHELTON, “Normative Hierarchy in International Law”, American Journal of International Law 2006, 318; M.
BYERS, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, Nordic Journal of
International Law 1997, 211 and 230; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot,
1992, 32; P.D. COFFMAN, “Obligations Erga Omnes and the Absent Third State”, German Yearbook of
International Law 1996, 297-299; A. VERMEER-KÜNZLI, “A Matter of Interest: Diplomatic Protection and State
Responsibility Erga Omnes”, International and Comparative Law Quarterly 2007, 566; J.-M. THOUVENIN, “La
seizine de la CIJ en cas de violation des règles fondamentales”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.),
The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Leiden,
Nijhoff, 2006, 327; J. CHARPENTIER, “Cour Internationale de Justice: Affaire de la Barcelona Traction, Arrêt du
5 février 1970”, Annuaire Français de Droit International 1970, 311; O. SCHACHTER, “International Law in
Theory and Practice: General Course in Public International Law”, Recueil des Cours 1982-V, 195 et seq and
339 et seq; P. MALANCZUK, “Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in
the International Law Commission’s Draft Articles on State Responsibility”, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 1983, 743; J. BRUNNÉE, “‘Common Interest’ – Echoes from an Empty Shell?
Some Thoughts on Common Interest and International Environmental Law”, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 1989, 801.
1075
C.J. TAMS, o.c., 36-40 and 163; A. PAULUS, Die internationale Gemeinschaft im Völkerrecht, Munich,
Beck, 2001, 371. See also: Article 3 Institut de Droit International Resolution on Obligations and Rights Erga
Omnes in International Law (2005), at http://www.idi-iil.org/idiE/resolutionsE/2005_kra_01_en.pdf.
1076
The nationality of the claim is fulfilled if the person over whom the State exercises diplomatic protection
continues to have the nationality of the State from the moment of the infringement of his right until the
presentation of the claim: Article 5.1 Draft Articles on Diplomatic Protection (2006).
1077
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 35.

235
Africa cases,1078 which centred on the issue of standing for not directly affected States, where
the Court did not grant the applicants, Ethiopia and Liberia, standing for lack of legal interest.
Hence, the Court intended to grant to all State the right to initiate proceedings in cases of
violations of obligations erga omnes. This outcome of the contextual analysis of the judgment
is confirmed by the Separate Opinion of Judge AMMOUN, the only member of the Court that
pronounced himself on the issue. In his opinion Judge AMMOUN explicitly recognized the
rights of non-directly affected States to initiate an action to defend a collective interest laid
down in peremptory norms of international law, additionally referring to the South West
Africa Cases.1079 Other opinions of judges have subsequently clarified the concept of
obligations erga omnes recognizing that it entails standing before the International Court of
Justice.1080 In addition, standing on the basis of obligations erga omnes has been invoked by
States in disputes before the International Court of Justice.1081

254. Nevertheless, the judgment itself seems to contradict the right to standing for not-
directly affected States. In paragraph 91 of the judgment the Court declares that in the field of
human rights at the universal level human rights treaties do not confer upon States the
capacity to protect the victims of human rights violations irrespective of their nationality. At
first glance this part of the judgment is inconsistent with the earlier statement that every State
has a legal interest in protecting obligations erga omnes which contain basic human rights.1082
In addition, it seems that the Court has confirmed this statement in the case concerning
Military and Paramilitary Activities in and against Nicaragua, in which it held that
concerning human rights violations by another State towards its own nationals, if human
rights are protected by conventions, their protection should be in accordance with the
mechanisms provided for in the treaty.1083 Ergo, if human rights are contained in a treaty,

1078
Supra, note 1021.
1079
Separate Opinion Judge AMMOUN, Barcelona Traction, Light and Power Company, Limited (Belgium v.
Spain), Second Phase, Judgment, ICJ Rep. 1970, §§ 34-35.
1080
Dissenting Opinion Judge ad hoc BARWICK, Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974,
437; Joint Dissenting Opinion Judges ONYEAMA, DILLARD, JIMÉNEZ DE ARÉCHAGA, and WALDOCK, Nuclear
Tests (Australia v. France), Judgment, ICJ Rep. 1974, § 52; Dissenting Opinion Judge WEERAMANTRY, East
Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, 214.
1081
Nuclear Tests (Australia v. France), Memorial on Jurisdiction and Admissibility Submitted by the
Government of Australia, § 431 and § 488, at http://www.icj-cij.org/docket/files/58/9443.pdf; Nuclear Tests
(New Zealand v. France), Memorial on Jurisdiction and Admissibility Submitted by the Government of New
Zealand, § 191, §§ 198-200 and § 206, at http://www.icj-cij.org/docket/files/59/9451.pdf; East Timor (Portugal
v. Australia), Réplique du gouvernement de la République portugaise, Volume I, 208, at http://www.icj-
cij.org/docket/files/84/6838.pdf.
1082
Separate Opinion Judge GROS, Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, § 24;
Separate Opinion Judge PETRÉN, Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, 303. This part
of the judgment has resulted in a debate in the literature whether the passage restricts the earlier paragraphs on
obligations erga omnes: pro: M. RAGAZZI, The Concept of Obligations Erga Omnes, Oxford, Oxford University
Press, 1997, 211-212; J.R. CRAWFORD, “The Standing of States: A Critique of Art. 40 of the ILC’s Draft
Articles on State Responsibility”, in M. ADENAS and D. FAIRGRIEVE (eds.), Judicial Review in International
Perspective, Liber Amicorum in Honour of Lord Slynn of Hadley, Vol. II, The Hague, Kluwer Law
International, 2000, 26-27; H.W.A. THIRLWAY, “The Law and Procedure of the International Court of Justice
1960-1989, Part One”, British Yearbook of International Law 1989, 99-100; contra: A.J.J. DE HOOGH,
Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and
Enforcement of the International Responsibility of States, Nijmegen, s.n. 1995, 44-45.
1083
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 267.

236
States can only rely on the mechanisms contained therein to invoke responsibility and not on
obligations erga omnes; if the convention would not provide for invocation of responsibility
in cases of violations towards non-nationals, that State would not be able to act. Interestingly,
Article 48 Draft Articles on Responsibility of States for Internationally Wrongful Acts equally
seems to limit the operation of obligations erga omnes. After declaring that each State can
invoke the international responsibility of a State for violations of obligations owed to the
international community as a whole, the provision adds that in so doing the conditions of
Articles 43-45 need to be respected. Article 44 in turn establishes that a claim for
responsibility will be admissible if it respects the requirements of nationality of the claims and
the exhaustion of local remedies. Whereas the requirement of exhaustion of local remedies is
still acceptable – an individual suffering from a violation of an obligation erga omnes could
be required to first seek reparation against the State responsible for the breach – the
requirement of nationality of the claims is highly problematic. If accepted, it would entail that
violations of obligations erga omnes can only be invoked when a State's nationals are
affected, unless the rules on diplomatic protection provide for an exception to the nationality
of the claims condition. Unfortunately, this is not the case and Article 8 Articles on
Diplomatic Protection only allows the nationality of the claims requirement to be set aside in
case of refugees and stateless persons. However, if this would be the case, it would mean that
the non-injured State can only invoke another State's responsibility for a violation of an
obligation erga omnes if one of its nationals is victim. In such case however, the State
becomes an injured State since pursuant to diplomatic protection the claim of the national
becomes the claim of the State and injury to the national injury to that State.1084 This is
evidenced by the wording of Barcelona Traction, Light and Power Company, Limited, in
which the Court contrasted obligations erga omnes with obligations owed to a particular State
in the field of diplomatic protection. It is therefore no surprise that Article 48 has caused
befuddlement amongst legal scholars and has led to the conclusion that the scope Article 48 is
severely restricted.1085

255. Despite the foregoing it is submitted that the concept of obligations erga omnes was not
restricted by the Court or by the Draft Articles on State Responsibility. Concerning paragraph
91 of the judgment – the statement that international human rights conventions do not give
States the rights to invoke responsibility for violations regardless of nationality of the victims
– this statement is plainly wrong. It is true for the International Covenant of Civil and
Political Rights that had not entered into force at the moment of the judgment, but not correct
with regard to other international conventions. Indeed, the International Covenant on Civil
and Political Rights does not confer upon States the capacity to invoke the responsibility of
other State parties for breaches of human rights.1086 However other human rights treaties
existed at the time of the judgment conferring standing on State parties for violations of

1084
Mavrommatis Palestine Concessions (Greece v. The United Kingdom), Judgment, PCIJ Publ. Series A, No.
2, 12; Panevezys-Saldutiskis Railway (Estonia v. Lithuania), Judgment, PCIJ Publ., Series A/B, No. 76, 16.
1085
E. MILANO, “Diplomatic Protection and Human Rights before the International Court of Justice: Re-
Fashioning Tradition”, Netherlands Yearbook of International Law 2004, 105-107; I. SCOBBIE, “The Invocation
of Responsibility for the Breach of ‘Obligations under Peremptory Norms of General International Law’”,
European Journal of International Law 2002, 1212-1213 and 1215-1218.
1086
See: Article 41 International Covenant on Civil and Political Rights (1966).

237
human rights regardless of the nationality of the victim.1087 The statement might also be true
with regard to invocation of human rights breaches outside a conventional context. However,
that would not contradict the Court's pronouncement on erga omnes obligations in the field of
human rights. Only basic human rights were given erga omnes status and not all human rights
can be said to have this importance, at least in the beginning of the 70s, when human rights
were recognized for the first time in a global binding instrument. Equally, if the Court was
referring to peremptory norms when discussing obligations erga omnes and if obligations
erga omnes and peremptory norms are identical – a point of view the thesis defends – the
statement of the Court in paragraph 91 would entail that human rights that do not belong to
jus cogens – and thus can be derogated from – would not give rise to obligations erga omnes.
If certain human rights can be validly set aside by a later treaty, they are not obligations
towards the international community as a whole. As long as the contracting States would
uphold the rights of nationals of third parties to whom they owe the obligations under the
general human rights treaty, those will not be in the capacity to invoke the responsibility of
the contracting States. The same reasoning can also be employed to the statement of the Court
in the Military and Paramilitary Activities in and against Nicaragua, if one regards that the
statement has implications on the concept of obligations erga omnes.1088 If the human right
has solely a conventional basis and does not belong to jus cogens, it will not be regarded as an
obligation erga omnes.
Concerning, Article 48 Draft Articles on State Responsibility for Internationally
Wrongful Acts (2001), in the Commentaries to the Draft Articles on Diplomatic Protection
the International Law Commission has clarified that the requirements of diplomatic protection
are not applicable in cases of invocation of violations of obligations erga omnes.1089 Hence,
nothing in Article 48 would prevent that a not directly affected State would invoke the
international responsibility of a State for a violation of an obligation erga omnes.1090

256. A second argument against extending the right to invoke responsibility to not directly
affected States on the basis of erga omnes obligations is that the statement in the Barcelona
Traction case was merely an obiter dictum. Since it was not one of the reasons upon which
the case was decided the authority of the statement is severely weakened.1091 The argument
hinges upon the distinction between ratio decidendi and obiter dictum and the existence of
this distinction in international law. Nevertheless, it might be questioned that the distinction

1087
Supra, note 1023, for some examples of treaties that do not limit the right to invoke responsibility to directly
affected States.
1088
TAMS and ANNACKER consider the passage to refer to the protection of conventional human rights, rather
than to the concept of obligations erga omnes: C.J. TAMS, o.c., 188; C. ANNACKER, Die Durchsetzung von erga
omnes Verpflichtungen vor dem Internationalen Gerichtshof, Hamburg, Verlag Dr. Kovac, 1994, 24-25.
1089
“Draft Articles on Diplomatic Protection with Commentaries” (2006), UN Doc. A/61/10, 87.
1090
See: Separate Opinion Judge SIMMA, Armed Activities on the Territory of the Congo (Democratic Republic
of Congo v. Uganda), Judgment, ICJ Rep. 2005, § 17 and § 35 in which he argues that Uganda could have
relied on obligations erga omnes to claim legal standing for victims of Congolese treatment in the absence of
the fulfilling of the criterion of nationality of the claims.
1091
Dissenting Opinion Judge DE CASTRO, Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, 387;
S. MCCAFFREY, “Lex Lata or the Continuum of State Responsibility”, in J.H.H. WEILER, A. CASSESE and M.
SPINEDI (eds.), International Crimes of States. A Critical Analysis of the ILC’s Draft Articicle 19 of State
Responsibility, Berlin, de Gruyter, 1989, 243; M. SHAHABUDDEEN, Precedent in the World Court, Cambridge,
Cambridge University Press, 1996, 157-160; W.E. BECKETT, “Les questions d’intérêt general au point de vue de
juridique dans la jurisprudence de la Cour permanente de Justice internationale”, Recueil des Cours 1932-I, 144.

238
exists in international law since international judicial decisions are typically only binding
upon the parties to the disputes.1092 Hence, the judgments of the Court are not binding
precedents and therefore the distinction between grounds that decided the case and obiter
dicta becomes less relevant. Furthermore, pursuant to Article 38 Statute of the International
Court of Justice, the Court has to decide in accordance with international law. This implies
that at least in theory all grounds the Court mentions are covered by international law even if
they are not necessary to decide the case before the Court. Thus, the authority of a statement
within a judgment will not depend on the place it takes in the reasoning, but on it being
consistent with international law.1093 In addition, obiter dicta have been relied upon and have
proven to reflect international law or to be very influential. For instance, the dictum that
restitution is the primary means of reparation in the Chorzow Factory Case was an obiter
dictum since Germany only asked for compensation.1094 Similarly, the rule that agreements
could bind third States without their consent was laid down in an obiter dictum before it
became incorporated in the Vienna Convention on the Law of Treaties.1095 Other obiter dicta
that had considerable influence can be found in Military and Paramilitary Activities in and
against Nicaragua 1096 and Barcelona Traction, Light and Power Company, Limited.1097 In
any event, even if the distinction between ratio decidendi and obiter dicta can be maintained
in international law, not all of them will have the same weight and especially those that
address an issue the parties raised carry a certain weight.1098 In this respect, the issue of
obligations erga omnes played a role in the East Timor case, in which the Court rejected that
it could impact the issue of jurisdiction, thereby specifically addressing the Portuguese
argument on the non-applicability of the Monetary Gold doctrine because of the concept of
obligations erga omnes.1099

1092
C.J. TAMS, o.c., 169; M. SHAHABUDDEEN, Precedent in the World Court, Cambridge, Cambridge University
Press, 1996, 97; A. CASSESE, International Law, Oxford, Oxford University Press, 2005, 194; Sir G.
FITZMAURICE, The Law and Procedure of the International Court of Justice, Vol. II, Cambridge, Grotius, 1986,
584.
1093
Dissenting Opinion Judge ANZILOTTI, Factory at Chorzów (Germany v. Poland), Interpretation of
Judgments Nos. 7 and 8, Judgment, PCIJ Publ., Series A, No. 13, 24.
1094
Factory at Chorzów (Germany v. Poland), Merits, Judgment, PCIJ Publ., Series A, No. 17, 6 (demand for
compensation) and 47 (restitution as primary means)
1095
Free Zones of Upper Savoy and District of Gex (France v. Switzerland), Judgment, PCIJ Publ., Series A/B,
No. 46, 147-148; Article 36 Vienna Convention on the Law of Treaties (1969) reflects the rule.
1096
According to Judge SCHWEBEL the pronouncement of the Court on the intervention of the United States
against Nicaragua for prior actions of Nicaragua was an obiter dictum: Dissenting Opinion Judge SCHWEBEL,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, ICJ Rep. 1986, § 175. Nevertheless, it is accepted as an established rule of international law
1097
The issue of nationality of the company was considered to be made obiter dictum: Separate Opinion Judge
GROS, Barcelona Traction Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment,
ICJ Rep. 1970, § 22; this is now enshrined in international law: Article 9 Draft Articles on Diplomatic
Protection (2006).
1098
M. RAGAZZI, The Concept of Obligations Erga Omnes, Oxford, Clarendon, 1997, 6.
1099
Portugal had asserted that the Court had jurisdiction based upon the erga omnes nature of the right to self-
determination; in essence Portugal argued that because obligations erga omnes establish a legal relation
between each and every State, the principle of Monetary Gold Removed from Rome in 1943 cannot bar the
jurisdiction of the Court: East Timor Case (Portugal v. Australia), Réplique du gouvernement de la République
portugaise, Volume I, 206-207, at http://www.icj-cij.org/docket/files/84/6838.pdf. The Court summarily
rejected the position: East Timor Case (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 29.

239
257. In conclusion, by the introduction of the concept of obligations erga omnes, whose
existence has been confirmed through the case law of the Court, the International Court of
Justice has granted standing to each and every State to uphold peremptory norms as
obligations erga omnes. Consequently, the legal interest lies precisely in protecting norms that
are fundamental to the international community as a whole and each State individually has a
right to present a claim to this extent. This is a special right owed to each State and does not
depend on the consent or claim of the injured State. Hence, a non-injured State can lodge a
complaint even though the injured State chooses not to. In fact, by its claim the non-injured
State is not upholding the rights of the injured State, but the right of the international
community to see its fundamental norms protected.1100 As a result, since it is not solely its
right that is harmed, the injured State does not possess a veto against the protection of an
obligation erga omnes or a peremptory norm. On the other hand, a State injured by a violation
of a peremptory norm can opt either to institute proceedings on the basis of a violation of its
rights or those of its nationals via diplomatic protection, or start a case as a member of the
international community in order to protect the community interest.1101

b. Problems of jurisdiction

258. While obligations erga omnes give a legal interest to each and every State to protect the
rights enshrined therein and thus standing before the International Court of Justice, this does
not imply that the International Court of Justice has jurisdiction over the dispute, an issue that
precedes the examination of the legal interest. The peremptory character of a norm and it
being an obligation erga omnes do not confer jurisdiction to the International Court of Justice,
only the consent of States does.1102 Nevertheless, ORAKHELASHVILI has argued in favour of
finding jurisdiction for violations of peremptory norms even if a State has not consented to
the jurisdiction of the Court since the nature of peremptory norms is that they bind States
regardless of the individual acceptance of the norm and that the principle of consent to the
jurisdiction of the Court is at odds with the non-derogatory character of jus cogens; in any
event, reservations to the jurisdiction of the Court in cases of breaches to jus cogens should be
set aside.1103 Yet, the non-derogatory character of the peremptory norm concerns the
substance of the norm and not the forum in which the enforcement of the norm and the

1100
A. VERMEER-KÜNZLI, “A Matter of Interest: Diplomatic Protection and State Responsibility Erga Omnes”,
International & Comparative Law Quarterly 2007, 555 and 778-579.
1101
Separate Opinion Judge SIMMA, Armed Activities on the Territory of the Congo (Democratic Republic of
Congo v. Uganda), Judgment, ICJ Rep. 2005, §§ 35-37.
1102
East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 29; Armed Activities on the Territory of the
Congo (New Application: 2002)(Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility,
Judgment, ICJ Rep. 2006, § 64; this was also recognized by Judge KOROMA dissenting from the judgment on
this point: Dissenting Opinion Judge KOROMA, l.c., § 22. See also: H.W.A. THIRLWAY, “Injured and Non-
Injured States before the ICJ”, in M. RAGAZZI (ed), International Responsibility Today: Essays in Memory of
Oscar Schachter, Dordrecht, Nijhoff, 2005, 316.
1103
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 492
and 499-508; see also: M. RUFFERT, “Special Jurisdiction of the ICJ in the Case of Infringement of
Fundamental Rules of the International Legal Order”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The
Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff,
2006, 296-297.

240
remedies to the violations of the peremptory norms are sought.1104 Similarly, a reservation to a
peremptory norm is devoid from any legal effect, but a reservation to the jurisdiction of the
Court is not a violation of the peremptory norm, it merely indicates that for the enforcement
of that norm, the Court is not considered the appropriate forum.1105

259. If the International Court of Justice has jurisdiction in a dispute between a non-injured
State, applicant in the dispute, and a State having violated peremptory norms, then the former
State has the legal interest to bring a case on the basis that the latter violated an obligation
erga omnes. Nevertheless, jurisdictional issues may arise, especially if a third State is
implicated in the alleged breach and a decision of the Court would impact the interests of the
third States that have not accepted the jurisdiction of the Court. In this respect, the Court held
in Monetary Gold Removed from Rome in 1943 that in case the International Court of Justice
necessarily has to judge upon the responsibility of the third State so that its interest are not
merely affected but form the subject matter of the decision, the Court will not have
jurisdiction.1106 The facts of the case were however very peculiar and the Court has indicated
that this case represents the limits of the Court in refusing to exercise its jurisdiction.1107 The
dispute concerned the removal of gold belonging to Albania from Rome by Nazi Germany.
After the arbitral determination that the gold indeed belonged to Albania, the gold was
allocated to the United Kingdom as partial reparation for the Corfu Channel case. However,
Italy claimed that it should receive the gold as reparation for the confiscation of the assets of
the National Bank of Albania that were owned by the Italian government. Therefore, Italy
started a case against the three Powers that were entrusted with the restoring of monetary gold
removed by Germany – France, the United Kingdom and the United States of America –
claiming that the said powers should deliver the gold to Italy and that it had priority over the
United Kingdom in receiving the gold. Yet, Italy later added a preliminary issue whether the
Court could decide the case considering the absence of Albania.1108 This summary of the facts
demonstrates the peculiar situation the Court was in: in order to decide the case it had first to
establish that Albania had infringed international law towards Italy, incurred State
responsibility and that the gold should be handed over to Italy as reparations. The second
Italian demand of priority of receiving the gold over the claim of the United Kingdom also
necessarily implied that first the international responsibility of Albania was established.1109 In

1104
M. RUFFERT, “Special Jurisdiction of the ICJ in the Case of Infringements of Fundamental Rules of the
International Legal Order?”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the
International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 295.
1105
Of course, it might be that the existence of a certain procedural remedy is intrinsically linked to the object
and purpose of a convention. In such case the reservation is invalid because it would go against the object and
purpose of the convention, regardless of the peremptory nature of the norm: Joint Dissenting Opinion Judge
HIGGINS, KOOIJMANS, ELARABY, OWADA, and SIMMA, Armed Activities on the Territory of the Congo (New
Application: 2002)(Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ
Rep. 2006, 65.
1106
Monetary Gold Removed from Rome in 1943 (Italy v. France, the United Kingdom and United States of
America), Preliminary Question, Judgment, ICJ Rep. 1954, 31.
1107
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, ICJ Rep. 1984, § 88.
1108
Monetary Gold Removed from Rome in 1943 (Italy v. France, The United Kingdom and United States of
America), Preliminary Question, Judgment, ICJ Rep. 1954, 21-22.
1109
A. VERMEER-KÜNZLI, “A Matter of Interest: Diplomatic Protection and State Responsibility Erga Omnes”,
International & Comparative Law Quarterly 2007, 569-570.

241
light of this decision it has to be examined whether a non-injured State can invoke the
responsibility of a State in such a situation, in particular when the breach relates to the
conclusion of a treaty and the non-injured State wishes to declare that treaty illegal or even
invalid because of this reason.1110

260. In general the situation of the Monetary Gold Removed from Rome in 1943 will not
arise in cases of international responsibility for breaches of peremptory norms that do not
involve the conclusion of treaties. If a State commits violations of a peremptory norm against
its own population or against another State or its population the issue of the absent third party
will not arise, yet it is also not completely excluded. As THIRLWAY remarks, in case of alleged
aggression the State having used force may reply that it was in fact exercising its right to self-
defence against aggression by the injured State.1111 That might entail that the International
Court of Justice first needs to establish the responsibility of the injured State, but not
necessarily so. As the Court clarified its decision in Certain Phosphate Lands in Nauru what
is required for legal interests of third States to constitute the subject-matter of the decision is
that the determination of the responsibility of the absent State is a prerequisite to decide the
case.1112 This reading of Monetary Gold Removed from Rome in 1943 was recently upheld in
Armed Activities on the Territory of the Congo.1113 Hence, if the applicant, the non-injured
State, can demonstrate that the conditions of the right to self-defence were manifestly not
fulfilled, the Court can still hold the respondent responsible without judging the responsibility
of the injured State.

261. Would the International Court of Justice have jurisdiction if the case concerns a
situation in which a non-injured State brings a claim against a State for breach of a
peremptory norm committed jointly by several States, for instance on the basis of a treaty? In

1110
In this hypothesis the non-injured State is not a party to the treaty concerned, otherwise it would be able to
invoke the procedure of Article 65 and 66 of the Vienna Convention on the Law of Treaties (1969), provided no
reservation has been made. Although this part focuses on the conclusion and execution of treaties in violation of
peremptory norms, similar problems could arise if a State is carrying out the decision of an international
organization and the non-injured State wishes to hold that unilateral act illegal or invalid. In theory it is also
possible that the non-injured State brings a case for a breach of a peremptory norm resulting from a custom
binding a small amount of States, but this is very unlikely. No new customary norm can emerge against a
peremptory norm since all inconsistent conduct is devoid of any legal effect. In case the custom concerned was
already established before the peremptory norm it will terminate. The defendant State could argue that since it
was a persistent objector to the peremptory norm it is not bound, but this argument will be unsuccessful: supra,
No. 227; in any event, the custom will need to be proven: Asylum Case (Columbia v. Peru), Judgment, ICJ Rep.
1950, 276.
1111
H.W.A. THIRLWAY, “Injured and Non-Injured States before the ICJ”, in M. RAGAZZI (ed), International
Responsibility Today: Essays in Memory of Oscar Schachter, Dordrecht, Nijhoff, 2005, 319; other
circumstances precluding wrongfulness are however excluded since in my opinion obligations erga omnes and
peremptory norms are identical norms and Article 26 Draft Articles of Responsibility of States for
Internationally Wrongful Acts (2001) states that circumstances precluding wrongfulness cannot be invoked to
justify violations of peremptory norms. Also a waiver of the claim or acquiescing in the lapse of the claim is not
possible since it would amount to a derogation of the peremptory norm and hence void: supra, No. 209.
1112
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, ICJ Rep. 1992,
§ 55. This clarification was first made by a Chamber of the Court in the context of an application to intervene:
Land, Island and Maritime Frontier Dispute (El Savador v. Honduras), Application to Intervene, Judgment, ICJ
Rep. 1990, §§ 53-55.
1113
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ
Rep. 2005, § 203.

242
such a case the Court if it finds responsibility will necessarily determine the responsibility of
all the members. This was the situation in Certain Phosphates Lands in Nauru in which
Nauru sought to establish the responsibility of Australia that was the administrator of Nauru,
together with New Zealand and the United Kingdom. Hence, if the responsibility of Australia
was proven, this would entail that the responsibility of the United Kingdom and New Zealand
was also engaged. Nevertheless, the Court held that it had jurisdiction over the case since it
could decide the case without deciding upon the responsibility of the other two countries, who
would be protected by Article 59 Statute of the International Court of Justice. Indeed, in such
case the Court did not need to decide first on the responsibility of New Zealand and the
United Kingdom before turning to the responsibility of Australia. The legal interest of the two
countries would of course have been affected if the Court decided in favour of Nauru, but this
would not constitute the subject matter of the decision. The subject matter was whether
Australia had breached international law towards Nauru and therefrom legal consequences
could flow for the other States. Determining the responsibility of these States was however
not a prerequisite for the judgment. Furthermore, despite the collective nature of the breach a
State remains responsible for its own violations of international law. Hence, in the case of
norms of jus cogens, the non-injured State can invoke the responsibility for the actions of the
individual State since those actions in themselves will breach peremptory norms.

262. A final situation concerns a case between two non-injured States, one of which has
implicitly or explicitly recognized a breach of a peremptory norm committed by a third State.
As such this recognition is invalid since it constitutes a derogation of the peremptory norm1114
and although not necessarily in itself a breach of the peremptory norm, it would in any event
be inconsistent with the duty not to recognize a violation of a peremptory norm.1115 In
addition, the implicit or explicit recognition in itself might breach the peremptory norm. In
light of the Monetary Gold Removed from Rome in 1943 doctrine in such a case the
jurisdiction of the International Court of Justice is doubtful. For, in order to assess whether
the recognition is illegal for infringing the duty of non-recognition of violations of
peremptory norms, first the responsibility of the third State needs to be established.
Furthermore, even if the State itself by recognizing violates a peremptory norm, this will not
give the Court jurisdiction if the assessment of the violation depends on the prior violation of
the third State. This situation was present in the East Timor Case, in which Australia had
concluded the Timor Gap Treaty with Indonesia, that had forcefully occupied East Timor and
annexed it, in which the continental shelf between East Timor and itself was delimited. By
recognizing the incorporation of East Timor in Indonesia in the Timor Gap Treaty, Australia
not only failed its duty not to recognize violations of a peremptory norm, it also allegedly
breached the right to self-determination of the East Timorese people. The right to self-
determination of a people entails that it is the people who determine which government is the
rightful representative of the people.1116 In case a government does not lawfully represent the
people, all dealings by a State with that government as the lawful government of the people

1114
Supra, No. 209.
1115
Infra, Nos. 279-280.
1116
Article 1 (1) International Covenant on Civil and Political Rights (1966); Article 1 (1) International
Covenant on Economic, Social and Cultural Rights (1966); Article 2 Declaration on the Granting of
Independence to Colonial Peoples, UN General Assembly Resolution 1514 (XV); Declaration on Principles of
International Law concerning Friendly Relations and Co-Operation among States in Accordance with the
Charter of the United Nations, Annex to UN General Assembly Resolution 2625 (XXV).

243
will infringe the right to self-determination. Consequently, although in such a case the State
itself does not deny the people its right to self-determination, it does not live up to its duty to
respect the right. Portugal, the Administering Power of East Timor, initiated a case against
Australia arguing that in concluding the agreement Australia had violated the right to self-
determination of the East Timorese and should have concluded the treaty with Portugal, as the
Administering Power. Australia argued that the Court did not have jurisdiction inter alia on
the basis of Monetary Gold Removed from Rome in 1943. The Court found that on this ground
it had no jurisdiction despite the erga omnes nature of the right giving every State a legal
interest to present the claim. According to the Court, the thrust of the Portuguese argument
centred on the question whether Australia could lawfully conclude a treaty with Indonesia that
occupied the island which implied it had to examine whether Indonesia was the lawful
representative of the East Timorese people. Since Indonesia was not a party to the dispute and
a decision on its responsibility was a necessary prerequisite for deciding the dispute the Court
came to the conclusion that the doctrine of Monetary Gold Removed from Rome in 1943 was
applicable.1117 Hence, if the judgment of the Court would be generalized, the Court would
have no jurisdiction in situations where a non-injured State brings a case against another non-
injured State for acting upon the violation of a peremptory norm by a third State, even if by
doing so that State would breach a peremptory norm.

263. The judgment of the Court in the East Timor case, the first time the judgment of
Monetary Gold Removed from Rome in 1943 was applied, has been subject to severe
criticism.1118 It could be questioned whether the Court as a prerequisite needed to determine
the responsibility of Indonesia since the invasion of East Timor had been held by the Security
Council and the General Assembly to be illegal and to violate the right to self-
determination.1119 East Timor was still considered a non-self-governing territory with
Portugal as the Administrative Power.1120 Even though these resolutions did not outline the
specific consequences of this, concluding a treaty dealing with the natural resources of the
continental shelf of East Timor with a State that had not been recognized by the United

1117
East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, §§ 28-29.
1118
See e.g.: R. BURCHILL, “The ICJ Decision in the Case concerning East Timor: The Illegal Use of Force
Validated?”, Journal of Armed Conflict Law 1997, 1-22; C. CHINKIN, “The East Timor Case (Portugal v.
Australia)”, International and Comparative Law Quarterly 1996, 712-725; P.D. COFFMAN, “Obligations Erga
Omnes and the Absent Third State”, German Yearbook of International Law 1996, 285-333; E. JOUANNET, “Le
principe de l’Or monétaire à propos de l’arrêt de la Cour du 30 juin 1995 dans l’affaire du Timor Oriental”,
Revue Générale de Droit International Public 1996, 673-713; R. KAVANAGH, “Oil in Troubled Waters: The
International Court of Justice and East Timor: Case concerning East Timor (Australia v Portugal)”, Sydney Law
Review 1996, 87-96; N.S. KLEIN, “Multilateral Disputes and the Doctrine of Necessary Parties in the East
Timor Case”, Yale Journal of International Law 1996, 305-347; M. MOFIDI, “Prudential Timourness in the
Case concerning East Timor (Portugal v. Australia)”, Journal of International Law and Practice 1998, 35-52;
I.G.M. SCOBBIE and C.J. DREW, “Self-Determination Undermined: The Case of East Timor”, Leiden Journal of
International Law 1996, 185-211.
1119
Security Council Resolution 384 (1975); Security Council Resolution 389 (1976); UN General Assembly
Resolution 3485 (XXX); UN General Assembly Resolution 31/53; UN General Assembly Resolution 32/34;
UN General Assembly Resolution 33/39; UN General Assembly Resolution 34/40; UN General Assembly
Resolution 35/27; UN General Assembly Resolution 36/50; UN General Assembly Resolution 37/30.
1120
§ 3 Security Council Resolution 384 (1975); § 2 UN General Assembly Resolution 3485 (XXX); § 4
Preamble UN General Assembly Resolution 34/40; § 5 UN Preamble General Assembly Resolution 35/27; §§
6-7 Preamble and §§ 3-4 UN General Assembly Resolution 36/50; § 5 and § 7 Preamble UN General Assembly
Resolution 37/30.

244
Nations as the representative of the people of East Timor without providing for mechanisms
that would ensure that the people of East Timor would reap some benefits from the
exploitation of the natural resources seems incompatible with respecting the right to self-
determination.1121 Hence, the Court could have started its reasoning from the fundamental
right of the East Timorese to self-determination, as established by the United Nations,
examine what this right contains and whether a State could conclude a treaty like the Timor
Gap Treaty that did not specifically take the interests of the people into account or even
inquire into the role of the Administrative Power in this respect.1122 One can even assume that
Indonesia had treaty-making power, but still come to the conclusion that since the
Administrative Power was not present during the negotiations, there was a violation of the
right to self-determination. Instead, the Court while nominally adhering to the resolutions did
not draw any consequence from them. Although the resolutions did not specify the
consequences, international law still does and being an Administrative Power must mean
something.1123 It is therefore surprising that the Court came to the conclusion that although
Australia agreed that East Timor is a non-self-governing territory, implying that the
Indonesian intervention and incorporation in Indonesia was not a lawful exercise of self-
determination, it did not attach any legal consequence to this. Of course, if the Court were to
conclude that Australia violated the right to self-determination by concluding the Timor Gap
Treaty, it would also mean that Indonesia violated that right, yet this situation would be
analogous to the case concerning Certain Phosphate Lands in Nauru. If in that the case the
Court would hold Australia responsible, the other two States would also be responsible.
However, since the determination of their responsibility was not a prerequisite, but a
consequence, the Monetary Gold Removed from Rome in 1943 was not applicable.1124
Therefore, it is submitted that in case the relevant organ of the United Nations, as representing
the international community, has made a determination of the conduct of the third State that
has breached a peremptory norm, the judgment of the Court in the East Timor Case should
not be a bar to jurisdiction in disputes between two non-injured States, one of which has acted
upon the violation of a peremptory norm committed by a third State.

1121
The right to self-determination not only has a political component, but also implies the right to pursue
economic, social and cultural development: infra, No. 384. Related to the right to self-determination is the right
to sovereignty over natural resources: P.D. COFFMAN, “Obligations Erga Omnes and the Absent Third State”,
German Yearbook of International Law 1996, 305.
1122
E. JOUANNET, “Le principe de l’Or monétaire à propos de l’arrêt de la Cour du 30 juin 1995 dans l’affaire
du Timor Oriental”, Revue Générale de Droit International Public 1996, 698-700.
1123
As SCOBBIE and DREW noted if the Court recognizes the status of the territory as non-self-governing on the
basis of the different resolutions, it should give these resolutions the consequences that flow from customary
international law in that field of law: I.G.M. SCOBBIE and C.J. DREW, “Self-Determination Undermined: The
Case of East Timor”, Leiden Journal of International Law 1996, 203-204. As CHINKIN noted it is absurd that
Portugal as the Administrative Power cannot advance the right of the East Timorese people to self-
determination by bringing a case before the Court in which its status as an Administrative Power is questioned,
especially if resolutions require a peaceful solution to the dispute on East Timor: C.M. CHINKIN, “East Timor
Moves Before the World Court”, European Journal of International Law 1993, 215. THOUVENIN also
recognizes the right of the Administrating Power to represent the people before the International Court of
Justice: J.-M. THOUVENIN, “La seizine de la CIJ en cas de violation des règles fondamentales”, in C.
TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus
Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 325-326.
1124
I.G.M. SCOBBIE and C.J. DREW, “Self-Determination Undermined: The Case of East Timor”, Leiden
Journal of International Law 1996, 197 and 207-208; N.S. KLEIN, “Multilateral Disputes and the Doctrine of
Necessary Parties in the East Timor Case”, Yale Journal of International Law 1996, 334-335.

245
264. The case law of Monetary Gold Removed from Rome and East Timor nevertheless
illustrate the limitations of the jurisdiction of the International Court of Justice which is
tailored to bilateral disputes. However, in contemporary international law many disputes have
a multilateral dimension.1125 As Judge WEERAMANTRY has indicated a broad interpretation of
the decision in Monetary Gold Removed from Rome in 1943 might lead to undesirable
results.1126 Furthermore, it has to be pointed out that not only the rights of the third State play
a role in determining the jurisdiction of the Court, but also those of the parties in the dispute:
if they have accepted the jurisdiction of the Court, in principle they have the right to see their
dispute settled. Therefore, a careful balance between the interest of the third party and the
parties to the dispute needs to be struck,1127 which can explain the reason why the impact of
Monetary Gold Removed from Rome in 1943 was limited until the East Timor Case. In
Monetary Gold Removed from Rome in 1943 the Court balanced the Italian interest in
obtaining compensation for an allegedly wrongful act against the Albanian interest of
ownership of the gold. In fact, had the Court proceeded it could have determined that the gold
did not belong to Albania and could thus not be used for partial compensation of the United
Kingdom. None of the interests involved concerned interests of the international community
and all relations were bilateral. Hence, it would be unjust to sacrifice the Albanian interest not
to see its responsibility determined without it being present for the Italian interest to obtain
compensation. However, if the interests involved are owed to the international community
this should be reflected in the balancing of interests, thus taking into account not only the
rights of the third party, but also those of the international community and the beneficiaries of
the obligation breached. This was notably absent in the East Timor Case. In addition, the
broader international context in which Monetary Gold Removed from Rome in 1943 was
decided is different from today’s context with an emphasis on the international community,
the consolidation of human rights, jus cogens and obligations erga omnes and the emergence
of non-State actors. Therefore, since the circumstances of Monetary Gold Removed from
Rome in 1943 constitutes the limits for refusing jurisdiction, the Court should have decided
the East Timor case differently limiting its judgment in Monetary Gold Removed from Rome
in 1943 to cases where no community interests are involved and which centre on bilateral
State interests.

4. Reparation

265. Provided the jurisdiction of the Court is established and a State is held responsible for a
violation of a peremptory norm, the question of reparation arises if the dispute is initiated by a

1125
Dissenting Opinion Judge WEERAMANTRY, East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995,
173; P.D. COFFMAN, “Obligations Erga Omnes and the Absent Third State”, German Yearbook of International
Law 1996, 285; C. CHINKIN, “The East Timor Case (Portugal v. Australia)”, International and Comparative
Law Quarterly 1996, 712; N.S. KLEIN, “Multilateral Disputes and the Doctrine of Necessary Parties in the East
Timor Case”, Yale Journal of International Law 1996, 322.
1126
Dissenting Opinion Judge WEERAMANTRY, East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995,
161-162.
1127
C. CHINKIN, “The East Timor Case (Portugal v. Australia)”, International and Comparative Law Quarterly
1996, 717. Dissenting Opinion Judge SKUBISZEWSKI, East Timor (Portugal v. Australia), Judgment, ICJ Rep.
1995, § 48: “There is a certain lack of balance in the dispositive: it is all too positive for Australia, all too
negative for Portugal; but it still remains to be seen whether the real winner is not a third State.”

246
non-injured State.1128 Article 48 (2) Draft Articles on Responsibility of States for
Internationally Wrongful Acts determines exhaustively the remedies such a State can request.
Since the legal interest of the non-injured State lies in the upholding of the peremptory norm
and not in the obtaining of reparation, it can in principle only ask for a declaratory judgment
that a State has breached a peremptory norm and, if the violation is continuing, for a cessation
of the illegal activity. If the circumstances so require, assurances and guarantees of non-
repetition can also be given.1129 The limited State practice available indeed points in the
direction of declaratory judgments determining the responsibility of the State concerned.1130
However, Article 48 (2) goes beyond codification by including the possibility that the non-
injured State demands reparation for the beneficiaries of the obligation, namely the victim
State or individuals. At this point in time there is no State practice indicating that States have
asked for restitution and compensation for the benefit of another; this aspect of reparation is
therefore a progressive development of international law.1131 Nevertheless, it will typically be
the injured State or the State whose nationals have been injured that will ask for restitution or
compensation and if a non-injured State presents this demand it will need to demonstrate that
it is truly acting in favour of the injured State or other beneficiaries. In such case, the non-
injured State may be requested to prove its legal interest in pressing for reparation.1132 Yet, if
the national State refuses to invoke the responsibility of another State for violations of
peremptory norms, a non-injured State can invoke the responsibility of the State committing
the violation. It has however been argued that in such case the victim State has implicitly
waived the claim so that other States cannot invoke responsibility. Whereas the State whose
nationals are injured cannot validly waive the claim to invoke the responsibility of the State
breaching a peremptory norm,1133 it has a certain freedom in choosing the means to settle the
dispute and need not opt for a judicial settlement. Hence, as long as the injured State or the
State of nationality of the victim invokes responsibility, the non-injured State should not ask
for restitution or compensation. Nonetheless, a mere protest of the injured State would not
suffice as invocation, since invocation of responsibility is a formal step entailing that the State
breaching the peremptory norm is presented with a claim for redress and a simple protest by

1128
The injured State can have recourse to every means of reparation within the law. Article 48 Draft Articles
on Responsibility of States for Internationally Wrongful Acts (2001) is complementary to Article 42 that as
such makes no reference to a State injured by a breach of a peremptory norm, but refers to the State specially
affected by a breach of an obligation owed to the international community; of course a State that has suffered an
injury by the breach is specially affected: “Draft Articles on Responsibility of States for Internationally
Wrongful Acts with Commentaries”, Yearbook of the International Law Commission 2001, Vol. II, Part 2, 119.
1129
Article 48 (2)(a) Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001);
assurances and guarantees for non-repetition have been recognized as consequences of an international
wrongful act by the International Court of Justice in LaGrand (Federal Republic of Germany v. United States of
America), Judgment, ICJ Rep. 2001, § 48.
1130
Only France asked for compensation in the S.S. Wimbledon (United Kingdom, France, Italy and Japan v.
Germany, Poland Intervening), Judgment, PCIJ Publ., Series A, No. 1, 30; Liberia and Ethiopia sought only a
declaratory judgment in the South West Africa cases: South West Africa (Ethiopia v. South Africa/Liberia v.
South Africa), Preliminary Objections, Judgment, ICJ Rep. 1962, 322-323; Portugal also sought a declaratory
judgment and the cessation of the illegal act: East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 10.
1131
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 127, § 12.
1132
Ibid.
1133
A. GATTINI, “To What Extent are State Immunity and Non-Justiciability Major Hurdles to Individuals’
Claims for War Damages”, Journal of International Criminal Law 2003, 366-367.

247
the injured State would not suffice.1134 Nevertheless, even if an injured State can waive a
claim, other States should still be able to invoke responsibility since they are not acting on
their own behalf, but are pursuing their own claim to see the violation restored.1135

266. A related issue is whether a non-injured State can ask the Court to declare a treaty to
which it is not a party invalid because it would infringe a peremptory norm. Since the mere
conclusion of a treaty derogating from a peremptory norm is not necessarily a breach of that
norm, a declaratory judgment as to the invalidity of the treaty, might prevent its execution. A
judgment declaring that the conclusion of a treaty is illegal is not problematic from a
jurisdictional point of view as long as it does not necessarily involve the prior determination
of the responsibility of a third State. If the court finds that a treaty was illegally concluded,
this only entails the responsibility of the State, but will in principle not affect the validity of
the treaty. If a State would request as a declaratory remedy the invalidity of the treaty, the
issue of jurisdiction will however arise. This is not because of the Monetary Gold doctrine,
since the Court will not be required as a prerequisite to pronounce on the responsibility of a
third State, but is based upon a separate ground. Even Portugal admitted in the East Timor
case that the Court would have no jurisdiction in the absence of Indonesia if Portugal would
ask to declare the treaty invalid.1136 It based itself on a judgment of the Central American
Court of Justice between Costa Rica and Nicaragua whereby Nicaragua had concluded a
treaty with the United States of America disregarding the rights of Costa Rica in the Gulf of
Fonseca. While the Central American Court upheld the international responsibility of
Nicaragua, it refused to declare the treaty invalid since it did not have jurisdiction. It is not
exactly clear why this case is a precedent for the International Court of Justice. The main
issue was that the Central American Court was not open to the United States since as a
regional court its jurisdiction was limited to Central-American States. 1137 Thus, if the Central
American Court would have pronounced on the issue of the validity of the Nicaragua-United
States treaty it would have overstepped its territorial jurisdictional boundaries. However, the
International Court of Justice is a world court that is not territorially limited and allows for the
mechanism of intervention in a dispute even if the intervening State has not accepted the
jurisdiction of the Court. Nevertheless, in the context of intervention, the Court has indicated
that a claim of invalidity would necessitate that the intervening State also has accepted the
Court’s jurisdiction in order for the Court to pronounce on the matter.1138 The reason seems to

1134
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 117, § 2.
1135
Comments and Observations of the Netherlands, UN Doc. A/CN.4/515, 67; Observations and Comments of
Republic of Korea, UN Doc. A/CN.4/515, 68; G. GAJA, “States Having an Interest in Compliance”, in J.
CRAWFORD, A. PELLET and S. OLLESON (eds.), The Law of International Responsibility, Oxford, Oxford
University Press, 2010, 963; SCOBBIE has remarked that this would be contrary to the sovereign equality of
States and State autonomy: I. SCOBBIE, “The Invocation of Responsibility for the Breach of ‘Obligations under
Peremptory Norms of General International Law’”, European Journal of International Law 2002, 1214; this is
correct if a not directly injured State asks for restitution or compensation for the victim State, but not if it asks
for reparation for the beneficiaries in case of human rights violations.
1136
East Timor (Portugal v. Australia), Réplique du gouvernement de la République portugaise, Volume I, 19,
at http://www.icj-cij.org/docket/files/84/6838.pdf
1137
Central American Court of Justice, Costa Rica v. Nicaragua, Judgment, 30 September 1916, American
Journal of International Law 1917, 227-228.
1138
Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application to Intervene, Judgment,
ICJ Rep. 1990, § 73.

248
be that by declaring the treaty invalid the Court would rule on the existence of subjective
rights of a State not before the Court, instead of merely upon the international responsibility
of one of the parties to the treaty. This was hinted to by Judge RANJEVA in the East Timor
case. Judge RANJEVA proposes an alternative reading of the Monetary Gold doctrine, namely
that the doctrine will operate if the Court is forced to pronounce on subjective rights of third
parties, or “rights relating to the legal situation of a State”. Since in his view Portugal sought
in essence the nullification of the Timor Gap Treaty this would involve an examination of the
subjective rights of Indonesia and thus the Court would have no jurisdiction.1139 But what if a
treaty creates subjective rights that contradict peremptory norms? As Judge RANJEVA
recognizes the consistency of a norm with jus cogens is an objective question, but a negative
outcome will impact the subjective rights of the third party.1140 If the Court would have
jurisdiction is thus far from clear. Nevertheless, the subjective rights created by the treaty are
inexistent since such a treaty – or at least the norms derogating from the peremptory norm in
the treaty – is invalid ab initio. Since jus cogens limits the law-creating powers of States,
States cannot create subjective rights derogating from peremptory norms; a decision of the
International Court of Justice declaring a treaty, or the norms derogating from jus cogens
therein, invalid does not affect the subjective rights created by the treaty for the parties since
these rights did not exist in the first place. Consequently, in my opinion nothing would
preclude the Court from issuing a declaratory judgment holding a treaty invalid due to
inconsistency with jus cogens.

5. The right of not directly affected States to take countermeasures

267. In the previous section it was demonstrated that peremptory norms also created
obligations erga omnes; every State had a legal interest to invoke the responsibility of other
States for an alleged violation of a norm of jus cogens. The responsibility can be invoked by
starting a case before the International Court of Justice. In its Barcelona Traction, Light and
Power Company, Limited the Court indeed accepted the standing of States for breaches of
obligations erga omnes. Nevertheless, in the East Timor case the Court emphasized that the
erga omnes character of an obligation cannot do away with the consensual nature of the
Court's jurisdiction. Therefore, scholars have suggested that the concept of obligations erga
omnes can also be used extrajudicially in the field of countermeasures. According to this point
of view, having a legal interest in the upholding of a norm also implies that each and every
State may take countermeasures.1141 However, nothing in the case law of the International
Court of Justice addresses this issue. In particular, Barcelona Traction, Light and Power
Company, Limited centred on standing of States in a dispute before the Court as is clear from
the context in which the dictum on obligations erga omnes was made and from the purpose of
reversing the decision in the South West Africa cases.

1139
Separate Opinion Judge RANJEVA, East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, 132.
1140
Ibid., 131.
1141
J.A. FROWEIN, “Reactions by Not Directly Affected States to Breaches of Public International Law”,
Recueil des Cours 1994-IV, 405 et seq; P.-M. DUPUY, “Observations sur la pratique récente des sanctions”,
Revue Générale de Droit Interntional Public 1983, 538-539; O. SCHACHTER, “International Law in Theory and
Practice: General Course in Public International Law”, Recueil des Cours 1982-V, 182.

249
268. Although the Court has never explicitly recognized the rights of not directly affected
States, supporters have argued that this right is implicitly contained in the concept of
obligations erga omnes. If every State has a legal interest in seeing obligations erga omnes
respected, States should have at their disposal all the tools to restore breaches of erga omnes
obligations, including countermeasures. Yet, although this appears a logical conclusion,
logical reasoning can lead to precisely denying such States the right to impose
countermeasures. For, it can be argued that since countermeasures are a tool of private justice,
such measures are incompatible with the community dimension of erga omnes obligations.
Therefore it is up to the international community, in particular through the United Nations,
that breaches of obligations erga omnes should be addressed.1142 In fact, this has been the
position of Special Rapporteurs and at certain times the majority of the members of the
International Law Commission when discussing the possibility of taking countermeasures for
international crimes.1143 Moreover, not directly affected States are not in the same legal
position as injured States, the latter having all the means recognized by international law at
their disposal to undo the breach; the tools of the former are more restricted.1144

269. Opponents of the right of indirectly injured States to take countermeasures resort to
policy arguments; in particular allowing countermeasures by not directly affected States
would introduce mob violence, vigilantism and chaos; States would be “more royalist than the
king”.1145 However, such fears seem exaggerated since these dangers can also be present in
case of countermeasures taken by directly injured States. For instance, States bound by an
integral obligation may team together against one of them accused of having breached the
obligation because it interprets the norm differently than the other States. Since international
law is characterized by auto-interpretation the interpretation of the State against which
countermeasures are taken is at par with the interpretation held by the other States. Therefore,
in a similar way as countermeasures as response to a breach of a peremptory norm, it could be
argued that the group of States aims to force their interpretation on the recalcitrant State. Yet,
countermeasures are allowed in such case, where the obligation is owed to the group as a

1142
See: C. HILLGRUBER “The Right of Third States to Take Countermeasures”, in C. TOMUSCHAT and J.-M.
THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga
Omnes, Leiden, Nijhoff, 2006, 272.
1143
Special Rapporteur AGO, “Eight Report on State Responsibility”, Yearbook of the International Law
Commission 1979, Vol. II, Part 1, 43, § 91; Special Rapporteur RIPHAGEN, “Third Report on the Content, Forms
and Degrees of International Responsibility”, Yearbook of the International Law Commission 1982, Vol. II, Part
1, 45, § 140; D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law
2002, 1228-1229; P. KLEIN, “Responsibility for Serious Breaches of Obligations Deriving from Peremptory
Norms of International Law and United Nations Law”, European Journal of International Law 2002, 1242-
1243; M. SPINEDI, “From One Codification to Another: Bilateralism and Multilateralism in the Genesis of the
Codification on the Law of Treaties and the Law of State Responsibility”, European Journal of International
Law 2002, 1118-1119 and 1121-1122; E. WYLER, “From ‘State Crime’ to Responsibility for ‘Serious Breaches
of Obligations under Peremptory Norms of General International Law’”, European Journal of International
Law 2002, 1154.
1144
I. SCOBBIE, “The Invocation of Responsibility for the Breach of ‘Obligations under Peremptory Norms of
General International Law’”, European Journal of International Law 2002, 1207; L.-A. SICILIANOS, “The
Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility”,
European Journal of International Law 2002, 1139-1140.
1145
L.-A. SICILIANOS, “The Classification of Obligations and the Multilateral Dimension of the Relations of
International Responsibility”, European Journal of International Law 2002, 1139.

250
whole and a breach will directly affect each and every member of the group.1146 In any event,
the practice available demonstrates that chaos and mob violence is not at the doorstep of
international law since most of the countermeasures by not directly injured States have limited
effect and are rather symbolic in nature.

270. Besides policy arguments, legal criticism against countermeasures in case of violations
of peremptory norms or obligations erga omnes is offered by ALLAND. His starting point is
that countermeasures are mechanisms of private justice that are based on individual self-
assessment of the legality of certain conduct.1147 Hence, they are subjective claims as to the
illegality of a certain act based on the individual will of States. This might lead to an
imposition of a particular norm or an interpretation thereof as respectively a peremptory norm
or the exact meaning of the peremptory by powerful States since they have the means to
implement countermeasures.1148 Also, allowing such subjective allegations as to the breach of
a peremptory norm would constitute the negation of the objective nature of these norms:
peremptory norms transcend the will of States whereas the taking of countermeasures is
precisely a unilateral decision of a State leading to an inter-subjective game of claims and
counterclaims.1149
As for the first remark, it is indeed correct that more powerful States can through
countermeasures impose a particular norm as a peremptory norm or advance a certain
interpretation of a peremptory norm. Nevertheless, it is a truism that even without taking
countermeasures powerful States have more means to further their objectives. The remark is
however justified as a reminder that in order to consolidate a norm as a peremptory norm or to
adhere to a certain interpretation of a peremptory norm one has to assess a general acceptance
of the norm or interpretation as a peremptory norm or its correct interpretation. The mere
actions of a handful of powerful States are in this respect insufficient. The taking of
countermeasures by not directly affected States because of an alleged violation of an alleged
peremptory norm is merely a claim that a norm is a peremptory norm. It is merely proof of the
individual opinio juris cogentis of those States, but does not as such establish that norm as
belonging to jus cogens. Countermeasures by not directly affected States are a result of the
breach of a peremptory norm, but do not ipso facto create a peremptory norm or have any
special credence as to the existence of the peremptory norm. With regard to the second
criticism that allowing such countermeasures would endanger the objective nature of
peremptory norms it may be doubted that peremptory norms are objective in the sense that
they are completely independent of the will of States. Peremptory norms are the result of the
nearly universal consent and acceptance by States that from such norms a limited group of
States cannot validly derogate. Yet, this leaves open how violations of these norms are
addressed. As ALLAND recognizes a violation is not an act and hence cannot be declared
invalid.1150 Consequently, the decentralized enforcement of the peremptory norm is not
necessarily a danger for the “objective” nature of the peremptory norm. A peremptory norm is

1146
See: J. CRAWFORD, J. PEEL and S. OLLESON, “The ILC’s Articles on Responsibility of States for
Internationally Wrongful Acts: Completion of the Second Reading”, European Journal of International Law
2001, 974-975; L.-A. SICILIANOS, “The Classification of Obligations and the Multilateral Dimension of the
Relations of International Responsibility”, European Journal of International Law 2002, 1134-1135.
1147
D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1234.
1148
Ibid., 1236.
1149
Ibid., 1237.
1150
Ibid., 1237.

251
as binding as an ordinary norm of international law, it can only not be set aside through legal
acts taken by a limited group of States. Hence, the violation of the peremptory norm will lead
to the same mechanisms to enforce the norm. Since States are not obliged to take
countermeasures, some States can opt for countermeasures and others for different
mechanisms to undo the violation. In the absence of a collective sanction by the international
community through the United Nations, international law as a decentralized legal system can
only provide for a decentralized enforcement, implying that States can use different tools.
Evidently, decentralized enforcement may lead to claims that a certain norm is not
peremptory. However, if the norm is already established as a peremptory norm such
declarations will have no legal effects because once a norm has been recognized as
peremptory it cannot be undone by States individually. Any attempt to undo the peremptory
status of a norm through subjective claims in the context of enforcement of that norm through
countermeasures will be fruitless and thus the “objective” nature of the norm will not be
endangered. Moreover, even if the United Nations acts through the Security Council, this does
not exclude subjective assessment since it is the Member States of the United Nations sitting
in the Security Council that decide which, if any, sanction to take, if they decide to address
the situation at all. In other words, one subjectivity is replaced by another subjectivity,1151 and
it is not clear why the subjective assessment of fifteen members of the Security Council
should be preferred over a decentralized assessment of all States of the international
community.

271. From the foregoing it can be concluded that there is no logical, political or legal reason
in allowing or barring the adoption of countermeasures by not directly affected States.
Nevertheless, the issue is whether international law allows such countermeasures. Therefore,
it has to be examined whether customary international law recognizes the taking of
countermeasures by not directly affected States. In this respect, the Draft Articles on
Responsibility of States for Internationally Wrongful Acts, as the codification of the law of
State responsibility, remains vague. It merely states in Article 54 that lawful measures are
allowed in such case, a sentence that can cover both positions.1152 On the one hand, the
opponents of such countermeasures can argue that they are not allowed since a
countermeasure is inherently an unlawful act, a breach of international law, that, considering
the circumstances, can be justified.1153 Others can argue that since countermeasures are lawful
under international law they fall within the ambit of Article 54. Moreover if the provision
would only refer to retortions it would be pointless, since these are excluded from the scope of
the Articles; in addition lawful measures cannot refer to measures taken by the Security
Council because the Articles exclude measures taken in the framework of the United
Nations.1154 Hence, the best reading of Article 54 implies that such countermeasures are
allowed.1155 Nevertheless, with this inadequate wording the Commission aimed to indicate

1151
P. KLEIN, “Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms of
International Law and United Nations Law”, European Journal of International Law 2002, 1249.
1152
L.-A. SICILIANOS, “The Classification of Obligations and the Multilateral Dimension of the Relations of
International Responsibility”, European Journal of International Law 2002, 1143.
1153
D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1233.
1154
Article 59 Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).
1155
L.-A. SICILIANOS, “The Classification of Obligations and the Multilateral Dimension of the Relations of
International Responsibility”, European Journal of International Law 2002, 1143; L.-A. SICILIANOS,

252
that it could not find sufficient practice supporting this reading and therefore it opted for a
saving clause in order to not impede the future evolution of international law on this issue.1156
However, the conclusion of the International Law Commission that practice is too equivocal
for final conclusions is not shared and the same practice is interpreted differently.1157 The
thesis will not list again all the instances of State practice available, but will provide a
qualification of this practice and inquire whether it indeed is sufficient to establish a
customary norm that such countermeasures are allowed.

272. First, it has to be remarked that countermeasures by not directly affected States have
been taken only in case of serious violations of peremptory norms. This was reflected in the
previous version of Article 54 that only allowed not directly affected States to take
countermeasures on their own initiative in case of a serious breach of a peremptory norm and
if no specific State was injured.1158
Second, in order to prove that not-directly affected states can take countermeasures
under customary law, the practice has to be uniform, extensive and consistent. In addition the
practice has to demonstrate an opinio juris sive necessitatis. However, at first sight the
condition of sufficient State practice is not satisfied. Concerning uniformity and consistency –
the internal uniformity – indirectly injured States have not taken countermeasures at each and
every instance of a serious breach of a peremptory norm. Concerning extensiveness of the
practice it has been acknowledged that most of the practice comes from Western States and
their allies.1159 These two facts might in itself deliver the blow to the legal interest of

Countermeasures in Response to Grave Violations”, in J. CRAWFORD, A. PELLET and S. OLLESON (eds.), The
Law of International Responsibility, Oxford, Oxford University Press, 2010, 1145.
1156
J. CRAWFORD, J. PEEL and S. OLLESON, “The ILC’s Articles on Responsibility of States for Internationally
Wrongful Acts: Completion of the Second Reading”, European Journal of International Law 2001, 982.
1157
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 138-139; C.J. TAMS, o.c., 230 et seq; P.-
M. DUPUY, “Observations sur la pratique récente des sanctions”, Revue Générale de Droit Interntional Public
1983, 505-514; J.A. FROWEIN, “Reactions by Not Directly Affected States to Breaches of Public International
Law”, Recueil des Cours 1994-IV, 416-422; C. HILLGRUBER “The Right of Third States to Take
Countermeasures”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International
Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 283-287; L.-A. SICILIANOS,
Countermeasures in Response to Grave Violations”, in J. CRAWFORD, A. PELLET and S. OLLESON (eds.), The
Law of International Responsibility, Oxford, Oxford University Press, 2010, 1145-1148.
1158
Article 54 Draft Articles on Responsibility of States for Internationally Wrongful Acts (2000); J.
CRAWFORD, J. PEEL and S. OLLESON, “The ILC’s Articles on Responsibility of States for Internationally
Wrongful Acts: Completion of the Second Reading”, European Journal of International Law 2001, 981; L.-A.
SICILIANOS, “The Classification of Obligations and the Multilateral Dimension of the Relations of International
Responsibility”, European Journal of International Law 2002, 1140-1141; L.-A. SICILIANOS, Countermeasures
in Response to Grave Violations”, in J. CRAWFORD, A. PELLET and S. OLLESON (eds.), The Law of
International Responsibility, Oxford, Oxford University Press, 2010, 1140; M. SPINEDI, “From One
Codification to Another: Bilateralism and Multilateralism in the Genesis of the Codification on the Law of
Treaties and the Law of State Responsibility”, European Journal of International Law 2002, 1120. In case there
was an injured State, other States could only take countermeasures on the invitation of the victim State in line
with the International Court of Justice judgment on collective self-defence: Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986, § 199.
1159
Special Rapporteur CRAWFORD, “Third Report on State Responsibility, Addendum”, UN Doc.
A/CN.4/507/Add.4, 17, § 396; D. ALLAND, “Countermeasures of General Interest”, European Journal of
International Law 2002, 1239; C. HILLGRUBER “The Right of Third States to Take Countermeasures”, in C.

253
indirectly affected States to take countermeasures. However, this is not the end of the matter.
The lack of uniformity in reaction to serious breaches and the lack of consistency of
individual States to always react to serious breaches, can be traced back to the fact that the
taking of countermeasures in such instances is not obligatory. The taking of countermeasures
is a right that States can exercise as they deem fit. Hence, in a particular situation of a serious
breach a State may opt for retortions, invocation of responsibility before an international
organization or a means of dispute settlement. As for the extensiveness of the practice,
although Western States are on the vanguard in taking countermeasures, such measures are
not taken by Western States alone.1160 Furthermore, there is no proof that other indirectly
affected States consistently protested against the taking of countermeasures. Hence, the taking
of countermeasures by mainly Western States might be the result of these States having the
means to take effective countermeasures.1161 Therefore, the taking of countermeasures and the
subsequent silence may reflect a shared understanding that in case of serious violations of a
peremptory norm countermeasures by a not directly affected State are permitted.
The litmus test is however whether the practice is accompanied with an opinio juris. In
effect, in case of a customary right only the proof of opinio juris will create clarity as to the
existence of the right in customary international law. A right might not be often or always
exercised. Yet, the right will continue to exist in customary law if there is a general
acceptance of that right. The limited practice in the field of countermeasures by not directly
affected States can only be qualified as having given rise to a customary right to take such
countermeasures if this right has been generally accepted. Therefore the statements of States
in the Sixth Committee of the General Assembly and their comments to the Draft Articles on
Responsibility of States for Internationally Wrongful Acts communicated to the International
Law Commission have been looked into since these statements have the advantage that they
specifically address this particular issue directly. Though some States did expressly recognize
the right of not directly affected States to take countermeasures,1162 most States opposed this
possibility out of fear of abuse by the more powerful States.1163 The conclusion is thus that

TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus
Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 287.
1160
D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1239;
L.-A. SICILIANOS, “The Classification of Obligations and the Multilateral Dimension of the Relations of
International Responsibility”, European Journal of International Law 2002, 1143.
1161
D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1239.
1162
Statement of the Nordic Countries, UN Doc. A/C.6/56/SR.11 § 33; Statement of New Zealand, UN Doc.
A/C.6/56/SR.11 § 43; Statement of Mongolia, UN Doc. A/C.6/56/SR.14, § 56; Observations and Comments of
the Federal Republic of Germany, Yearbook of the International Law Commission 1981, Vol. II, 75;
Observations and Comments of Spain, UN Doc. A/CN.4/515, 54; Observations and Comments of The
Netherlands, UN Doc. A/CN.4/515, 87; Observations and Comments of Austria, UN Doc. A/CN.4/515, 88-89;
Observations and Comments of France, UN Doc. A/CN.4/515/Add.2, 18.
1163
Statement of Mexico, UN Doc. A/C.6/56/SR.15, § 8; Id., UN Doc. A/C.6/56/SR.14, § 19; Id., UN Doc.
A/C.6/55/SR.20, §§ 35-37; Observations and Comments of Mexico, UN Doc. A/CN.4/515/Add.1, §§ 9-10;
Statement of Thailand, UN Doc. A/C.6/56/SR.15, § 31; Statement of Argentina, UN Doc. A/C.6/56/SR.15, §
53; Statement of China, UN Doc. A/C.6/56/SR.11, § 62; Id., UN Doc. A/C.6/55/SR.14, §§ 40-41; Statement of
Sierra Leone, UN Doc. A/C.6/56/SR.14, § 7; Statement of the Russian Federation, UN Doc. A/C.6/56/SR.14, §
44; Statement of Brazil, UN Doc. A/C.6/56/SR.16, § 2 and §§ 4-5; Statement of Iran, UN Doc. A/C.6/56/SR.16,
§ 15; Statement of Jordan, UN Doc. A/C.6/56/SR.15, § 21; Id., UN Doc. A/C.6/55/SR.18, § 17; Statement of
Poland, UN Doc. A/C.6/55/SR.18, § 48; Observations and Comments of Poland, UN Doc. A/CN.4/515/Add.2,
18-19; Statement of Cuba, UN Doc. A/C.6/55/SR.18, § 59; Statement of the United Kingdom, UN Doc.
A/C.6/55/SR.14, § 31; Observations and Comments of the United Kingdom, UN Doc. A/CN.4/515, 89;

254
even if the practice is considered in the most favourable light, still the general opinio juris is
lacking.

273. At this stage international law is still in flux. On the one hand, more and more practice
is accumulating and often these instances are justified as legal. Nonetheless, it is not because
these States claim that it is legally permitted that international law does permit it. On the other
hand, there is still no overarching opinio non juris, challenged by the accumulating practice
and the sobering reality that the choice might be between allowing decentralized enforcement
or having no effective enforcement at all for the most important norms of the international
community. Faced with this choice it comes as no surprise that States choose to act, even if
this means breaching international law as the case of Kosovo has demonstrated. If a legal
system does not have effective avenues to protect the most fundamental community interests,
these will be protected by extra-legal means. It can thus be expected that the contemporary
state of affairs will be further challenged in the future until either the international community
has matured enough to allow for a centralized enforcement mechanism in case of serious
breaches of peremptory norms or opposition to decentralized enforcement has faded. Since
the latter option is more likely to happen, the dangers of a decentralized enforcement will
have to be addressed and emerge from State practice. Nonetheless, the dangers should also
not be overstated; the main goal of countermeasures is not to enforce a particular
interpretation of a peremptory norm, but to achieve the cessation of the wrongful act.1164
Furthermore, State practice demonstrates that the measures taken are rather symbolic in nature
and tend more to retortions than to reprisals.1165 Thus, despite the looming dangers, the taking
of countermeasure by not-directly affected States to protect the essential community interests
might be a welcome instrument.

C. Obligations in the field of State responsibility for serious breaches of norms of jus
cogens

274. In the previous parts the thesis examined the means of enforcement at the disposal of
not directly affected States, coming to the conclusion that such States have a legal interest to
invoke the responsibility of the violating State and that State practice indicates a trend
towards the recognition of a right to take countermeasures in case of a serious violation of a
peremptory norm. In addition, during the codification of the law of State responsibility the
conviction arose that international law contained or should contain specific consequences for
the most severe breaches of the fundamental norms of the international community.1166

Statement of Japan, UN Doc. A/C.6/55/SR.14, § 67; Observations and Comments of Japan, UN Doc.
A/CN.4/515, 89; Statement of Israel, UN Doc. A/C.6/55/SR.15, § 25; Statement of Botswana, UN Doc.
A/C.6/55/SR.15, § 63; Statement of Libyan Arab Jamahiriya, UN Doc. A/C.6/55/SR.22, § 52; Statement of
Cameroon, UN Doc. A/C.6/55/SR.24, § 59; Statement of Greece, UN Doc. A/C.6/54/SR.28, § 4; Observations
and Comments of Austria, UN Doc. A/CN.4/515/Add.2, 18-19.
1164
D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1226.
1165
In this regard TAMS and HILLGRUBER disagree whether the sanctions taken could be qualified as
countermeasures or retortions: C.J. TAMS, o.c., 230 et seq and C. HILLGRUBER “The Right of Third States to
Take Countermeasures”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the
International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 283-287.
1166
“Report of the International Law Commission on Its Twenty-Eight Session”, Yearbook of the International
Law Commission 1976, Vol. II, Part 2, 117, § 53.

255
Hence, there was not a single regime governing State responsibility, but two. First, there is a
general regime dealing with breaches, regardless of the severity, of non-fundamental norms
and ordinary breaches of fundamental norms. Second, there is a specific regime for serious
breaches of fundamental norms with special obligations additional to the general
consequences of a violation of an international norm. From this distinction the notion of
international crime of States was born, that was influenced by the codification of jus cogens in
the Vienna Convention on the Law of Treaties.1167 However, the notion of State crime came
under virulent attack. In the final stages of the codification project the International Law
Commission decided to drop the contested notion of crime and replace it by serious breaches
of “obligations owed to the international community as a whole and essential for the
protection of its fundamental interests”, 1168 that in turn was replaced by serious breaches of
obligations under peremptory norms of general international law.1169 Nevertheless, despite the
name change the consequences that were attached to crimes of State are the same as those
attached to serious breaches of obligations under peremptory norms of general international
law, leading WYLER to conclude that “the murder of crime does indeed look innocent”.1170
Indeed, the International Law Commission has taken over the two criteria of State crime, a
factor dealing with the conduct of the perpetrator, i.e. the severity of the breach, and a
normative factor, namely the nature of the norm involved, i.e. a peremptory norm of general
international law. This in effect coincides with the elements of substantive severity and
circumstantial severity of State crime.1171 Besides the similarity between “State crime” and

1167
Special Rapporteur AGO, “Fifth Report on State Responsibility”, Yearbook of the International Law
Commission 1976, Vol. II, Part 1, 31-32, § 99; M. SPINEDI, “From One Codification to Another: Bilateralism
and Multilateralism in the Genesis of the Codification on the Law of Treaties and the Law of State
Responsibility”, European Journal of International Law 2002, 1124; E. WYLER, “From ‘State Crime’ to
Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’”,
European Journal of International Law 2002, 1150.
1168
Some States argued that international community should be amended by adding the words international
community of States, a suggestion that the International Law Commission rightly rejected since although States
have a primordial function in the creation of international rules, not all rules they create establish rights and
obligations owed to and by other States. This is the clearest in case of human rights, that do not establish rights
and duties between States, but between State parties and every individual in their jurisdiction: J. CRAWFORD, J.
PEEL and S. OLLESON, “The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts:
Completion of the Second Reading”, European Journal of International Law 2001, 973.
1169
The notion of obligations owed to the international community refers to the right to invoke the breach, but
as such does not deal with the specific consequences attached to the breach; therefore the Commission chose to
replace it with peremptory norms: J. CRAWFORD, J. PEEL and S. OLLESON, “The ILC’s Articles on
Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading”, European
Journal of International Law 2001, 978. It has however been noted that the change is not adequately reflecting
the nature of jus cogens which is not concerned with State responsibility, but with validity of norms: D.
ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1237; on the
other hand jus cogens is not merely limited to validity, but has also a hierarchical aspect that is reflected in the
existence of an aggravated form of responsibility: P.-M. DUPUY, “A General Stocktaking of the Connections
between the Multilateral Dimension of Obligations and Codification of the Law on State Responsibility”,
European Journal of International Law 2002, 1079.
1170
E. WYLER, “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory
Norms of General International Law’”, European Journal of International Law 2002, 1151 and 1159. See also:
D. ALLAND, “Countermeasures of General Interest”, European Journal of International Law 2002, 1227; A.
ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 281-282.
1171
“Report of the International Law Commission on the Work of Its Twenty-Eight Session”, Yearbook of the
International Law Commission 1976, Vol. II, Part 2, 120, § 66; “Draft Articles on Responsibility of States for

256
“serious breaches of obligations under peremptory norms of general international law” the
consequences attached to the latter are the same as the consequences that were attached to
“State crime” for third States.1172 Interestingly, the consequences of a serious breach of a
peremptory norm are not specifically addressed to the State having committed the serious
breach, but to all States or all States, but the responsible State; international law presently
does not recognize any additional consequences for the State responsible for the serious
breach of a peremptory norm.1173

275. At the time of the introduction of the concept of State crimes there was no direct
support for a special category for serious breaches of essential community norms. The
concept was indirectly derived from State practice in the field of countermeasures and the
dictum of the International Court of Justice on obligations erga omnes in the Barcelona
Traction, Light and Power Company, Limited.1174 Nonetheless, it is not because States have
only taken countermeasures in cases of serious violations of peremptory norms that this
entails they have in such cases additional duties. Furthermore, obligations erga omnes
determine which States have a legal interest in invoking responsibility, but do not address the
issue of special duties for States in case of a serious violation of a peremptory norm.1175
Consequently, Special Rapporteur CRAWFORD in our view drew the correct conclusion that a
hierarchy of norms does not necessarily entail different regimes of State responsibility.1176
Nevertheless, some States supported the notion of State crime and most States, even if critical
of the notion of State crime, supported a regime of aggravated responsibility.1177 In any event,

Internationally Wrongful Acts with Commentaries”, Yearbook of the International Law Commission 2001, Vol.
II, Part 2, 113; P.-M. DUPUY, “A General Stocktaking of the Connections between the Multilateral Dimension
of Obligations and Codification of the Law on State Responsibility”, European Journal of International Law
2002, 1061; G. PALMISANO, “Les causes d’aggravation de la responsabilité des Etats et la distinction entre
‘crimes’ et ‘délits’”, Revue Générale des Droit International Public 1994, 635 and 637; E. WYLER, “From
‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General
International Law’”, European Journal of International Law 2002, 1158-1159.
1172
“Report of the International Law Commission on the Work of its Forty-Eight Session”, Yearbook of the
International Law Commission 1996, Vol. II, Part 2, 72.
1173
P.-M. DUPUY, “A General Stocktaking of the Connections between the Multilateral Dimension of
Obligations and Codification of the Law on State Responsibility”, European Journal of International Law 2002,
1065; C.J. TAMS, “Do Serious Breaches Give Rise to Any Specific Obligations of the Responsible State?”,
European Journal of International Law 2002, 1161-1180. The only consequence that specifically targeted the
responsible State – the payment of damages reflecting the breach – was removed from the draft after opposition
by States: J. CRAWFORD, J. PEEL and S. OLLESON, “The ILC’s Articles on Responsibility of States for
Internationally Wrongful Acts: Completion of the Second Reading”, European Journal of International Law
2001, 977. Punitive damages are not recognized in international law: S. WITTICH: “Punitive Damages”, in J.
CRAWFORD, A . PELLET and S. OLLESON (eds.), The Law of International Responsibility, Oxford, Oxford
University Press, 2010, 669-672.
1174
“Report of the International Law Commission on the Work of Its Twenty-Eight Session, Commentary to
Article 19”, Yearbook of the International Law Commission 1976, Vol. II, Part 2, 99-100.
1175
See: Separate Opinion Judge KOOIJMANS, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, § 40.
1176
Special Rapporteur CRAWFORD, “First Report on State Responsibility, Addendum”, UN Doc.
A/CN.4/490/Add.2, § 71.
1177
Statement of Mexico, UN Doc. A/C.6/56/SR.15, § 2; Id., UN Doc. A/C.6/53/SR.18, § 7; Statement of
Hungary, UN Doc. A/C.6/56/SR.15, § 15; Id., UN Doc. A/C.6/55/SR.16, § 56; Statement of Thailand, UN Doc.
A/C.6/56/SR.15, § 32; Statement of Argentina, UN Doc. A/C.6/56/SR.15, § 52; Observations and Comments of
Argentina, UN Doc. A/CN.4/488/Add.1, 5-6; Id., UN Doc. A/CN.4/515/Add.3, 7; Statement of Ireland, UN

257
the consequences attached to serious breaches of peremptory norms were retained by the
International Court of Justice in its advisory opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory.1178 Consequently it seems that
international law attaches special consequences to serious violations of peremptory norms,
additional to the right of all States to invoke the international responsibility.1179

Doc. A/C.6/56/SR.15, § 60; Statement of Morocco, UN Doc. A/C.6/56/SR.11, § 40; Statement of New Zealand,
UN Doc. A/C.6/56/SR.11, § 43; Id., UN Doc. A/C.6/55/SR.16, § 5; Statement of Belgium, UN Doc.
A/C.6/56/SR.11, § 52; Statement of Italy, UN Doc. A/C.6/56/SR.13, § 14; Id., UN Doc. A/C.6/55/SR.16, § 23;
Id., UN Doc. A/C.6/54/SR.24, § 20; Id., UN Doc. A/C.6/53/SR.21, §§ 22-24; Observations and Comments of
Italy, UN Doc. A/CN.4/488/Add.2, 3-5; Statement of Mali, UN Doc. A/C.6/56/SR.13, § 24; Observations and
Comments of Mali, Yearbook of the International Law Commission 1980, Vol. II, 101; Statement of Poland,
UN Doc. A/C.6/56/SR.13, § 34; Statement of Cyprus, UN Doc. A/C.6/56/SR.13, § 55 and §§ 62-63; Statement
of Sierra Leone, UN Doc. A/C.6/56/SR.14, § 2; Statement of Greece, UN Doc. A/C.6/56/SR.14, § 23-26; Id.,
UN Doc. A/C.6/55/SR.17, § 83; Id., UN Doc. A/C.6/54/SR.28, §§ 5-6; Id., UN Doc. A/C.6/53/SR.17, § 29;
Observations and Comments of Greece, UN Doc. A/CN.4/492, 8; Statement of Japan, UN Doc.
A/C.6/56/SR.12, § 2; Statement of the the Member States of the South African Development Community, UN
Doc. A/C.6/56/SR.12, § 20; Statement of The Netherlands, UN Doc. A/C.6/56/SR.12, 28; Observations and
Comments of The Netherlands, UN Doc. A/CN.4/515, 44-45; Statement of the Federal Republic of Germany,
UN Doc. A/C.6/56/SR.12, § 60; Statement of India, UN Doc. A/C.6/56/SR.14, § 35; Id., UN Doc.
A/C.6/53/SR.21, § 32; Statement of the Russian Federation, UN Doc. A/C.6/56/SR.14, § 46; Statement of
Mongolia, UN Doc. A/C.6/56/SR.14, §§ 53-54; Observations and Comments of Mongolia, UN Doc.
A/CN.4/488, 59; Statement of Portugal, UN Doc. A/C.6/56/SR.14, §§ 65-66; Statement of United States of
America, UN Doc. A/C.6/56/SR.14, § 72; Statement of Iran, UN Doc. A/C.6/56/SR.16, § 10; Statement of
Slovakia, UN Doc. A/C.6/56/SR.16, § 18; Observations and Comments of Slovakia, UN Doc. A/CN.4/515, 45;
Statement of Switzerland, UN Doc. A/C.6/56/SR.16, § 34; Statement of Indonesia, UN Doc. A/C.6/56/SR.16, §
57; Statement of Chile, UN Doc. A/C.6/55/SR.17, § 45; Statement of Jordan, UN Doc. A/C.6/55/SR.18, § 12;
Statement of Slovenia, UN Doc. A/C.6/55/SR.18, § 23; Statement of Cyprus, UN Doc. A/C.6/55/SR.18, § 34;
Statement of China, UN Doc. A/C.6/55/SR.14, § 42; Statement of Spain, UN Doc. A/C.6/55/SR.16, § 11; Id.,
UN Doc. A/C.6/54/SR.21, § 14; Id., UN Doc. A/C.6/53/SR.18, § 49; Observations and Comments of Spain, UN
Doc. A/CN.4/515, 45-46; Statement of Australia, UN Doc. A/C.6/55/SR.16, § 39; Statement of Costa Rica, UN
Doc. A/C.6/55/SR.17, § 62; Statement of Austria, UN Doc. A/C.6/55/SR.17, § 72; Observations and Comments
of Austria, UN Doc. A/CN.4/515, 44; Statement of Cuba, UN Doc. A/C.6/54/SR.28, § 93; Statement of
Bulgaria, UN Doc. A/C.6/54/SR.28, § 65; Observations and Comments of Bulgaria, Yearbook of the
International Law Commission 1981, Vol. II, 72; Statement of Burkina Faso, UN Doc. A/C.6/54/SR.26, § 42;
Statement of Slovenia, UN Doc. A/C.6/53/SR.21, §§ 1-2; Statement of the Czech Republic, UN Doc.
A/C.6/53/SR.21, § 9; Observations and Comments of the Czech Republic, UN Doc. A/CN.4/488, 52-53;
Statement of the Nordic Countries, UN Doc. A/C.6/53/SR.19, § 37; Statement of Ukraine, UN Doc.
A/C.6/53/SR.22, § 19; Statement of Slovakia, UN Doc. A/C.6/53/SR.22, § 40; Observations and Comments of
Byelorussia, Yearbook of the International Law Commission 1980, Vol. II, 93 § 3; Observations and Comments
of Ukraine, Yearbook of the International Law Commission 1980, Vol. II, 103; Observations and Comments of
the Federal Republic of Germany, Yearbook of the International Law Commission 1988, Vol. II, 4, § 32;
Observations and Comments of Denmark on behalf of the Nordic Countries, UN Doc. A/CN.4/488, 53-54; Id.,
UN Doc. A/CN.4/515, 44; Observations and Comments of Uzbekistan, UN Doc. A/CN.4/488, 64-65;
Observations and Comments of the Republic of Korea, UN Doc. A/CN.4/515, 51.
1178
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Rep. 2004, § 159.
1179
There is dispute whether Article 48 Draft Articles on Responsibility of States for Internationally Wrongful
Acts (2001) is only applicable to serious breaches of obligations under peremptory norms. According to some
scholars, this is indeed the case since the difference in terminology is the result of a change in the interim draft
of 2000 that consistently spoke of “serious breach of obligations towards the international community”: P.-M.
DUPUY, “A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and
Codification of the Law on State Responsibility”, European Journal of International Law 2002, 1062;
furthermore it is argued that otherwise the Articles would be inconsistent since a serious breach of peremptory

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1. Serious breaches of obligations under peremptory norms

276. Before discussing the scope of the specific consequences it needs to be determined what
is meant by serious breaches of obligations under peremptory norms of general international
law. According to Article 40 a breach is serious if “it involves a gross or systematic failure by
the responsible State to fulfil the obligation.” Hence, besides the normative importance of the
norm, the breach itself has to be significant.1180 In order to have aggravated responsibility, it
does not suffice that the breach involves a peremptory norm, the violation has to be grave, i.e.
either gross, systematic or a combination of the two. With the term “gross” the Commission
wanted to indicate the intensity of the violation or its effects; “it denotes violations of a
flagrant nature, amounting to a direct and outright assault on the values protected by the rule.”
With “systematic” the Commission indicates “the organized and deliberate way in which the
violation is committed”. Some factors that establish the serious nature of the breach are the
intent to violate the norm, the amount of individual violations and the gravity of the breach
for the victims.1181 However, the International Law Commission has indicated that certain
breaches are by their very nature grave, or in other words, the circumstantial element needs
not to be present.1182 This is the case for the prohibition of aggression and genocide. Genocide
always implies a policy to destroy a protected group, whereas aggression is a serious violation
of the prohibition of the use of force and is always organized.1183 Nevertheless, it can be
questioned whether international law knows a distinction between serious and less serious
breaches in the field of State responsibility. Although in some instances the distinction is

norms would only lead to the mild consequences of Article 41, whereas for an ordinary breach all States could
invoke the responsibility of the perpetrator State: Ibid., 1075; L.-A. SICILIANOS, “The Classification of
Obligations and the Multilateral Dimension of the Relations of International Responsibility”, European Journal
of International Law 2002, 1141. However it is submitted that the terminology of 2001 is more in line with
international law: Article 48 refers to obligations erga omnes and the International Court of Justice has never
required that a breach was severe in order to have legal standing to invoke responsibility. Moreover, if the other
position would be accepted, it would entail that less serious breaches by States against their own population
could never lead to invocation of responsibility. Therefore, it is in our view a better position to consider the
consequences of serious breaches of peremptory norms as additional consequences next to the more general
right to invoke responsibility for violations of obligations erga omnes: J. CRAWFORD, J. PEEL and S. OLLESON,
“The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second
Reading”, European Journal of International Law 2001, 978; J. CRAWFORD, “International Crimes of States”,
in J. CRAWFORD, A . PELLET and S. OLLESON (eds.), The Law of International Responsibility, Oxford, Oxford
University Press, 2010, 410; G. GAJA, “States Having an Interest in Compliance”, in J. CRAWFORD, A . PELLET
and S. OLLESON (eds.), The Law of International Responsibility, Oxford, Oxford University Press, 2010, 959.
1180
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 112; E. WYLER, “From ‘State Crime’ to
Responsibility for ‘Serious Breaches of Obligations under Peremptory Norms of General International Law’”,
European Journal of International Law 2002, 1158
1181
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 113.
1182
Ibid., 113.
1183
Concerning genocide: Article II Convention on the Prevention and the Punishment of the Crime of
Genocide (1948) ; G. PALMISANO, “Les causes d’aggravation de la responsabilité des Etats et la distinction
entre ‘crimes’ et ‘délits’, Revue Générale des Droit International Public 1994, 655. Concerning aggression:
Article 3 Definition of Aggression, Annex to UN General Assembly Resolution 3314 (XXIX); Amendments to
the Rome Statute of the International Criminal Court on the Crime of Aggression, Annex I to Review
Conference Resolution RC-Res.6 (2010); G. PALMISANO, l.c., 645-647.

259
made1184 and though States have typically only taken countermeasures in case of serious
breaches of peremptory norms,1185 there is no indication that third States only have specific
duties flowing from a serious breach of a peremptory norm. In this respect, though admittedly
the construction of the security fence in the Occupied Palestinian Territory constitutes a
serious violation, in its advisory opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory the Court did not refer to the severity of the
breach, but merely to the “character and importance of the rights and obligations
involved”.1186 In addition, by distinguishing severe from less severe breaches the Commission
has added an extra level of subjectivity in assessing aggravated responsibility. Not only has it
to be established that the violation concerns a peremptory norm, but also that the violation
was serious. Considering that this is not performed through a neutral and impartial
mechanism, but is to be self-assessed by each and every State, it is feared that the assessment
of the seriousness of the breach of every situation will lead to inconsistent and politicized
results. Therefore, it would have been preferable in our view if the consequences would have
been attached to every breach of a jus cogens norm, serious or not.1187

2. Duty of international actors to co-operate to remove the violation of norms of jus

cogens

277. The first duty for all States but the perpetrator State is to cooperate to remove the
consequences of the serious breach, expressing the community dimension in international law
in which States have to work together to undo the effects of the serious breach.1188 However,
the International Law Commission has expressed doubts that it has codified international law
in this respect.1189 This is a surprising conclusion. Although the duty is not present in the
advisory opinion on the Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1971) that has inspired Article 41,1190 the duty to cooperate is present in the Declaration on
Principles of International Law concerning Friendly Relations and Co-Operation among
States in accordance with the Charter of the United Nations, which has been held to reflect
customary international law in general.1191 The principle of cooperation requires States to

1184
See for instance: Article 89 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (1977).
1185
Supra, No. 272.
1186
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Rep. 2004, § 159.
1187
In this sense: Statement of Mexico, UN Doc. A/C.6/56/SR.15, §§ 4-5; Id., UN Doc. A/C.6/56/SR.14, § 13;
Statement of Ireland, UN Doc. A/C.6/56/SR.15 § 60; Statement of United States of America, UN Doc.
A/C.6/55/SR.18, § 71; Observations and Comments of United States of America, UN Doc. A/CN.4/515, 53;
Statement of Costa Rica, UN Doc. A/C.6/55/SR.17, § 63; Statement of Austria, UN Doc. A/C.6/55/SR.17, § 72;
Observations and Comments of Austria, UN Doc. A/CN.4/515, 48.
1188
A. GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, European Journal of International Law 2002,
1185-1186.
1189
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 114.
1190
A. GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, European Journal of International Law 2002,
1186.
1191
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 188; N.H.B. JØRGENSEN, “The Obligation of Cooperation”, in J.

260
cooperate for the maintenance of international peace and security and to promote and respect
fundamental human rights. This necessarily implies that the duty to cooperate also plays a role
in case of serious violations of these norms.1192 On the other hand, the duty to cooperate as
laid down in the Friendly Relations Declaration is wider than this,1193 and it is questionable
that the principle of cooperation in the Declaration completely reflects customary
international law.1194 In any event the duty of cooperation is not limited to violations of
peremptory norms: rather it should be regarded as an underlying procedural principle that
operates throughout the whole of international law.1195 Nonetheless, the duty enshrined in
Article 41(1) Draft Articles on Responsibility of States for Internationally Wrongful Acts can
be regarded as an individuation in the field of jus cogens of the general duty to cooperate in
removing breaches of international law.

278. Besides the issue of the customary nature of the obligation to cooperate there is the
problem of the extent of the obligation. In particular does the duty to cooperate imply that
States cannot undertake unilateral action anymore? Although the text could be read in this
way,1196 such a conclusion would go too far, taking into account the statement of the
Chairman of the Drafting Committee that this provision was “not intended to exclude
unilateral actions by states”.1197 Finally, Article 41(1) is silent as to the mechanisms through
which the duty to cooperate has to be put into effect. The Commentary only refers to non-
institutionalized forms of cooperation within the framework of the United Nations, a remark
that does not add anything substantial.1198 Nevertheless, the duty to cooperate might play an
important role when States take retortions or countermeasures when this possibility has been
crystalized in international law. In this respect the old Article 54 (3) provided for a duty to

CRAWFORD, A. PELLET and S. OLLESON (eds.), The Law of International Responsibility, Oxford, Oxford
University Press, 2010, 699.
1192
A. GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, European Journal of International Law 2002,
1186.
1193
Declaration on Principles of International Law concerning Friendly Relations and Cooperation between
States, Annex to UN General Assembly Resolution 2625 (XXV.
1194
H. NEUHOLD, “Die Plicht zur Zusammenarbeit zwischen den Staaten: Moralistisches Postulat oder
Völkerrechtliche Norm?”, in H. MIESHLER, E. MOCK, B. SIMMA and I. TAMMELO (eds.), Ius Humanitatis,
Festschrift zum 90. Geburtstag von Alfred Verdross, Berlin, Duncker & Humblot, 1980, 598; G. ARANGIO-
RUIZ, “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of
Friendly Relations”, Recueil des Cours 1972-III, 572-574; contra: A. GATTINI, “A Return Ticket to
‘Communitarisme’, Please”, European Journal of International Law 2002, 1186; M. ŚAHOVIĆ, “Codification
des principes du droit international des relations amicales et de la coopération entre les Etats”, Receil des Cours
1972-III, 306-307, stating that the seven principles are part of jus cogens. However, this is questionable due to
the heterogenity of the Declaration as has been remarked by The Netherlands and the United States: UN Doc.
A/C.6/SR. 1183 and UN Doc. A/AC.125/SR. 114; according to Iraq the principles were reflecting jus cogens:
UN Doc. A/C.6/SR.1180
1195
G. ARANGIO-RUIZ, “The Normative Role of the General Assembly of the United Nations and the
Declaration of Principles of Friendly Relations”, Recueil des Cours 1972-III, 572. As remarked by Special
Rapporteur CRAWFORD it would be hard to maintain that the duty to cooperate does not apply to less serious
breaches of human rights obligations: Special Rapporteur CRAWFORD, “First Report on State Responsibility,
Addendum”, UN Doc. A/CN.4/490/Add.2, § 84.
1196
See: the interpretation of the Netherlands: UN Doc. A/CN.4/515, 58.
1197
TOMKA, “Report of the International Law Commission on the Work of Its Fifty-Third Session”, UN Doc.
A/56/10, 44.
1198
A. GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, European Journal of International Law 2002,
1187.

261
cooperate when not directly affected States would take countermeasures. Hence, the main
application of the duty to cooperate will be the coordination of measures taken against the
perpetrator State in order to eradicate the consequences of the serious breach.

3. The prohibition of recognition of a severe breach of a norm of jus cogens as lawful

and the prohibition of aid and assistance in order to secure the situation

279. Besides a duty to cooperate in eliminating the consequences of the serious breach of a
peremptory norm, all States have a duty not to recognize as lawful this serious violation and
may not aid or assist the culprit State in maintaining the situation that flows from the serious
breach. Whereas the duty to cooperate is only addressed to third States and the victim State,
the prohibition of recognition is addressed to all States, including the victim State and the
culprit State.1199 By taking legal or other measures to consolidate its position the culprit State
will not only breach a peremptory norm, but also the duty not to recognize the unlawful
situation. The duty of non-recognition as lawful is firmly entrenched in international law, at
least in the field of territorial claims and claims to statehood in violation of the principle of
self-determination.1200 Whether the duty to non-recognition can be extended to other serious
breaches of jus cogens is more subject to debate.1201 According to Judge KOOIJMANS the duty
not to recognize as lawful has no real substance outside the context of territorial claims.1202
The duty not to recognize as legal implies that a certain situation may formally not be
declared as legal, leaving States some margin to deal with the situation on the ground.1203

1199
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 114.
1200
For an overview of State practice, see: J. DUGARD, Recognition and the United Nations, Cambridge,
Grotius, 1987, 25-39 and 82-122; H. BLIX, “Contemporary Aspects of Recognition”, Recueil des Cours 1970-II,
656-677; I. BROWNLIE, International Law and the Use of Force by States, Oxford, Clarendon, 1963, 413-418;
S. TALMON, “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other
Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?” in C. TOMUSCHAT and
J.-M. THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations
Erga Omnes, Leiden, Nijhoff, 2006, 101-103; T. CRISTIAKIS, “L’obligation de non-reconnaissance des
situations créées par le recours illicite à la force ou d’autres actes enfreignant des règles fondamentales”, in C.
TOMUSCHAT and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus
Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 135-142; M. DAWIDOWICZ, “Non-recognition of
an Unlawful Situation”, in J. CRAWFORD, A. PELLET and S. OLLESON (eds.), The Law of International
Responsibility, Oxford, Oxford University Press, 2010, 679-684.
1201
S. TALMON, “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or
Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?” in C. TOMUSCHAT
and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and
Obligations Erga Omnes, Leiden, Nijhoff, 2006, 103; A. GATTINI, “A Return Ticket to ‘Communitarisme’,
Please”, European Journal of International Law 2002, 1189, limiting the scope of the obligation to situations of
illegal use of force and forcible impediment to the right of self-determination. GATTINI also notes that the
decision of the International Court of Justice in its Namibia advisory opinion is ambiguous since it does not
come to its judgment because of the practice of apartheid, but on the termination of the mandate for Namibia:
see: 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 Rep. 1970, § 104.
1202
Separate Opinion Judge KOOIJMANS, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, §§ 43-44.
1203
H. BLIX, “Contemporary Aspects of Recognition”, Recueil des Cours 1970-II, 664-665; I. BROWNLIE,
International Law and the Use of Force by States, Oxford, Clarendon, 1963, 420-423; S. TALMON, “The Duty

262
However, it is odd to formally recognize the situation that results from a breach of a
peremptory norm, such as genocide, torture and slavery since perpetrators of those
peremptory norms do not intend to formulate legal claims that can be recognized as lawful. In
addition, peremptory norms bar any effect of validation techniques, such as recognition of the
breach of a peremptory norm as legal. Hence, even if a State would recognize a serious
violation of a peremptory norm, pursuant to the invalidity of derogation, the recognition
would never have occured and produce no legal effects. Following this reasoning the duty of
non-recognition as lawful would thus have no use precisely because of the operation of jus
cogens. However, this would only be accurate if the duty not to recognize would be limited to
a prohibition to expressly recognize the breach and the situation flowing from it as “legal”.
The duty of non-recognition has expanded to include all acts that could imply a recognition
that the situation is legal.1204 Thus, the duty of non-recognition is much broader and
essentially obliges States to isolate the perpetrator of the serious breach.1205 Not only can
States not formally recognize the situation, they also may not do any of the following: have
treaty relations with the State concerned or apply existing treaties to the illegal situation; send
or receive diplomatic and consular missions; admit or allow participation of the illegal
authority in international organizations; have economic, commercial or other relations with
the perpetrator State; recognize the illegal authority (or situation resulting from the serious
breach) before national or international courts; and attach legal consequences to
constitutional, legislative and administrative acts of the illegal authority (or that seriously
violate a peremptory norm).1206 The prohibition of implicit recognition can have some effects
with regard to violations of peremptory norms, such as the exclusion of a testimony obtained
through torture, the non-recognition of a government that came into power through genocide
or, more fanciful, the granting of liberty to a slave.
The duty of non-recognition is not absolute and may not lead to hardship to the
population. In particular, acts of the illegal authority that deal with the personal status of
individuals should be exempted. 1207 Also conventions whose application benefits the people
under the control of the illegal authority can be applied; in addition, economic relations that
do not further entrench the illegal authority can be maintained.1208 International practice has
accepted some acts of the illegal authority outside these fields, for examples certificates in

Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus
Cogens Obligation: An Obligation without Real Substance?” in C. TOMUSCHAT and J.-M. THOUVENIN (eds.),
The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden,
Nijhoff, 2006, 111-112.
1204
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 Rep. 1970, § 121.
1205
T. CRISTIAKIS, “L’obligation de non-reconnaissance des situations créées par le recours illicite à la force ou
d’autres actes enfreignant des règles fondamentales”, in C. TOMUSCHAT and J.-M. THOUVENIN (eds.), The
Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff,
2006, 146-147.
1206
Ibid., 147-160.
1207
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 Rep. 1970, § 125. For example:
High Court of Justice (Family Division), Emin v. Yeldag (Attorney-General and Secretary of State for Foreign
and Commonwealth Affairs Intervening), 5 October 2001, [2002] 1 FLR 956.
1208
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 Rep. 1970, § 124.

263
order to combat drugs and contacts with the police forces of the illegal authority for law
enforcement issues.1209 Nevertheless, it might be hard to draw a clear line in all cases.

280. This extended notion of the duty of non-recognition creates the problem that in case of
breach of this duty a State is strengthening the State having committed the serious violation.
Thus, it can be said that this State is in effect aiding or assisting the responsible State, which
falls under the obligation not to render aid or assistance.1210 Nevertheless, the duty of not
rendering aid and assistance is broader: it includes all aid or assistance that does not lead to an
implicit recognition of the situation, 1211 for example material aid to commit serious violations
of peremptory norm. However, in such case these acts come close to complicity in the
commission of an international wrongful act regulated in Article Draft 16 Articles on the
Responsibility of States for Internationally Wrongful Acts. Although the Commission has
stressed that aid and assistance in this context refers to aid and assistance after the
commission of the wrongful act, the distinction becomes moot in case of a continuing
violation of the peremptory norm. In such case there is no impediment to consider the
assisting State as a State complicit in the breach of a peremptory norm that entails all the
consequences attached to such a breach in the field of State responsibility.1212 Finally, the
extent of the scope of the duty of non-assistance has led to controversies. Some courts have
refused to grant State immunity for serious breaches of peremptory norms arguing that
otherwise they would recognize the violation and assist the perpetrator State.1213 However,
this line of reasoning is unconvincing. State immunity merely bars a foreign national court
from hearing a case and is procedural in nature. Therefore it only determines that a certain
court is not the court with the power to settle the dispute. This finding does not imply that a
court recognizes the breach of a peremptory norm, nor does it entail that in finding so it aids
or assists the perpetrator State in maintaining the situation, since it merely states that the court
is not the correct forum to handle the claim.1214

1209
Both cited in: T. CRISTIAKIS, “L’obligation de non-reconnaissance des situations créées par le recours
illicite à la force ou d’autres actes enfreignant des règles fondamentales”, in C. TOMUSCHAT and J.-M.
THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and Obligations Erga
Omnes, Leiden, Nijhoff, 2006 ,161; see also: S. TALMON, “The Cyprus Question before the European Court of
Justice”, European Journal of International Law 2001, 744-746.
1210
A. GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, European Journal of International Law 2002,
1191.
1211
S. TALMON, “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or
Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?” in C. TOMUSCHAT
and J.-M. THOUVENIN (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and
Obligations Erga Omnes, Leiden, Nijhoff, 2006, 114.
1212
A. GATTINI, “A Return Ticket to ‘Communitarisme’, Please”, European Journal of International Law 2002,
1191-1192; N.H.B. JØRGENSEN, “The Obligation of Non-assistance to the Responsible State”, in J. CRAWFORD,
A . PELLET and S. OLLESON (eds.), The Law of International Responsibility, Oxford, Oxford University Press,
2010, 692.
1213
Corte suprema di Cassazione, Ferrini c. Repubblica federale di Germania, sezione unite n. 5044/04,
depositata l’11.03.2004, Diritto e Giustizia del 16.03.2004, § 9, at
http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-sentenza_corte_di_cassazione-11_03_05_001.doc; Court
of First Instance of Leivadia, Prefecture of Voiotia v. the Federal Republic of Germany, Case No. 137/1997, 30
October 1997, Revue Hellénique de Droit International 1997, 599.
1214
See: Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment, ICJ Rep.
2002, § 60; House of Lords, Ron Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, Judgment of 14
June 2006, [2006] UKHL 26, §§ 43-45; H. FOX, The Law of State Immunity, Oxford, Oxford University Press,

264
D. The non-invocation of circumstances precluding wrongfulness

281. Violations of a peremptory norm may not be justified by appealing to certain

circumstances which would preclude the wrongfulness of the conduct.1215 In particular, prior
consent may not be invoked to justify a breach of a peremptory norm.1216 In case consent is
given after the breach, it will operate as a validation device, and will be invalidated because it
would amount to derogation of a peremptory norm. Similarly, prior consent to breach of a
norm of jus cogens would amount to an agreement to derogate from the peremptory norm and
such consent would thus not result in any legal consequences,1217 such as the justification of a
breach. Nevertheless, in case of some peremptory norms prior consent entails that there is
actually no breach of the norm; in such instance, prior consent does not serve as a justification
ground since there is no violation of international law at all. The use of force in the territory of
a country which has priorly approved the use of force is not unlawful and hence no breach of
the prohibition of inter-State use of force has occurred.1218 However, in most instances prior
consent will not have any impact on the legality and validity of conduct contrary to the
peremptory norm: the prior consent of a State to commit genocide against part of its
population can obviously never have any legal consequences and cannot serve as a
justification ground.
Self-defence can be invoked as a circumstance precluding wrongfulness, but only in
case of an armed attack or acts of aggression. Nevertheless, it is more correct to regard the
right to self-defence as an exception to the general prohibition on the use of force and hence
part of the peremptory norm prohibiting the use of force.1219 Hence, in relation to the use of
force the invocation of self-defence does not concern an appeal to a justification for a breach,
but the implementation of a peremptory right to repel unlawful armed attacks. Nonetheless,
the exercise of the right of self-defence may violate obligations other than the prohibition on
the use of force (e.g. the imposition of an economic blockade in violation of a treaty of free

2004, 525; A. ZIMMERMAN, “Sovereign Immunity and Violations of International Jus Cogens – Some Critical
Remarks”, Michigan Journal of International Law 1994-1995, 437-438; P. D’ARGENT, “Des règlement
collectifs au règlement individuels (collectivisés)”, International Law FORUM du Droit International 2003, 22-
23; M. POTESTÀ, “State Immunity and Jus Cogens Violations: The Alien Tort Statute against the Backdrop of
the Latest Developments in the ‘Law of Nations’”, Berkeley Journal of International Law 2010, 583-584; C.
FOCARELLI, “Federal Republic of Germany v. Giovanni Mantelli and Others: Italian Court of Cassation Opinion
on Foreign Sovereign Immunity in Cases of Civil Liability for International Crimes”, American Journal of
International Law 2009, 126; Id., “Immunité des Etats 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 jurisdictionelle des Etats
étrangers”, Revue Générale de Droit International Public 2008, 764.
1215
Article 26 Draft Articles on State Responsibility for Internationally Wrongful Acts (2001).
1216
“Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries”,
Yearbook of the International Law Commission 2001, Vol. II, Part 2, 73.
1217
AGO, 1538th Meeting of the International Law Commission, Yearbook of the International Law Commission
1979, Vol. I, § 8.
1218
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, ICJ
Rep. 2005, §§ 42 et seq; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 59.
1219
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 190 and § 193.

265
trade). In such cases, the right of self-defence indeed functions as a circumstance precluding
wrongfulness.1220
Countermeasures can never be taken if their object or purpose involve a violation of a
peremptory norm.1221 The occurrence of force majeure may also not be invoked. Hence, even
if the breach of the peremptory norms is due to an irresistible force or unforeseen event
beyond the control of the State and it is in the material impossibility to perform the
peremptory norm, the importance of the community interest established in the peremptory
norm does not allow a State to escape its responsibility. Furthermore, an author of a breach of
a peremptory norm cannot invoke distress to save his life or that of others entrusted in his or
her care. Thus, the saving of the crew and passengers of a ship or aircraft can never justify a
breach of a peremptory norm.1222 Finally, no state of necessity can be invoked,1223 which can
already be implicitly found in Article 25 (1)(b) Draft Articles on State Responsibility, that
makes the invocation of this circumstance precluding wrongfulness dependent on the
condition that no serious harm is done to essential interests of the international community as
a whole. Nonetheless, Article 26 would also cover less serious impairment of the community
interests protected by a peremptory norm.

SECTION.4. CONCLUSION

282. The examination of the consequences of peremptory norms has demonstrated that jus
cogens has escaped the narrow confines of the invalidity of treaties. Jus cogens has become
one of the most important axes around which contemporary international law revolves. It has
established a hierarchy of norms, not on the basis of the source from which the norm derives,
but a hierarchy based on the importance of the value enshrined in the peremptory norms. This
conception of jus cogens as creating a hierarchy of norms has led to its expansion outside the
law of treaties, invalidating not only treaties, but equally customary norms and unilateral acts.
Thereby, it entrenches the cardinal interests of the international community and prevents the
complete disintegration of international law into various and conflicting sub-regimes. All
States are bound by a minimum set of rules that reflect the important community interest and
from which no derogation will be tolerated. In addition, the expansion of jus cogens outside
the law of treaties has resulted in an expanding of the circle of Stares entitled to invoke the
responsibility for breaches of peremptory norms. Whereas the Vienna Convention on the Law
of Treaties provided in an inadequate procedure to nullify the treaty, general international law
has overcome the limitations of the Vienna Convention by the introduction of the concept of
obligations erga omnes, that gives each State a legal interest in upholding these obligations.

1220
J.-M. THOUVENIN, “Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility:
Self-defence”, in J. CRAWFORD, A . PELLET and S. OLLESON (eds.), The Law of International Responsibility,
Oxford, Oxford University Press, 2010, 461.
1221
Article 50 (1) (d) Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).
1222
The cases of distress are in reality limited to these instances: “Draft Articles on Responsibility of States for
Internationally Wrongful Acts with Commentaries”, Yearbook of the International Law Commission 2001, Vol.
II, Part 2, 78.
1223
See: ICSID, CMS Gas Transmission Company v. Argentine Republic, Case No. ARB/01/8, Award of 12
May 2005, § 325, at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC504_E
n&caseId=C4.

266
As has been demonstrated, jus cogens and obligations erga omnes are essentially two sides of
the same coin, thus giving each and every State a legal interest in upholding peremptory
norms. Moreover, serious breaches of peremptory norms entail the special duties to cooperate
and not to recognize or aid and assist in serious violations of peremptory norms. Thus, the aim
of jus cogens is not only to invalidate legislative acts derogating from it, but also to restore the
legality of the peremptory norm by allowing each State to claim its violation and to establish
duties to cooperate to remove the illegality and never accept the illegality as legal or to assist
the State having committed the breach in maintaining the illegality. In essence jus cogens has
evolved from a ground of invalidity to a limitation of the power of States.1224

283. Despite these evolutions, the enforcement of peremptory norms remains unsatisfactory.
This is not surprising since enforcement in a horizontal legal system is less effective due to
the focus of its members on their self-interests instead of the community interests. This leads
to inactivity and inconsistency in enforcing peremptory norms. Furthermore, the International
Court of Justice, the main judicial body, is still oriented to bilateral disputes dealing with
State interests. This was evidenced by the judgment in the East Timor case where the Court
relied on the Monetary Gold doctrine, thereby protecting State interests over community
interests. The result was that a serious breach of a peremptory norm was left effectively
unenforceable and that it may be questioned whether the Court would ever retain jurisdiction
in a multilateral dispute involving violations of peremptory norms. Furthermore, it is doubtful
that the International Court of Justice would accept jurisdiction over a case in which States
not party to a treaty derogating from jus cogens could ask for its invalidity. The current case
law tends to answer this question in the negative. If confirmed, the Court would bar third
States to invoke the invalidity of a treaty for inconsistency of jus cogens. The end result
would be staggering: before the entry into force of the treaty third States could not demand for
its invalidity. When it is executed it is unlikely the Court would retain jurisdiction on the basis
of the Monetary Gold doctrine as applied in the East Timor case. In this respect the lack of
binding precedent of the Court’s case law might be a blessing.
In addition, in case institutionalized enforcement of peremptory norms fails, the taking
of countermeasures by not directly affected States is at this point not accepted in international
law despite some practice to the contrary. At this phase international law is in transition and it
can be expected that certain States will continue to take measures to protect peremptory
norms. However, whereas a decentralized enforcement through countermeasures is preferable
to non-enforcement, dangers of selectivity, disproportionate measures and abuse of power
linger. In any event, even if countermeasures by not directly affected States would be
accepted, they would only be taken in case of serious violations of jus cogens. The same goes
for the duty to cooperate and not to recognize a situation resulting from a breach of jus cogens
and not to render aid and assistance. Unfortunately, the distinction between serious and non-
serious breaches is not objectively determined. Furthermore, there is no compelling reason
why States cannot take countermeasures, should not cooperate or be allowed to recognize an
ordinary breach and aid and assist the perpetrator State. Therefore, it would have been
preferable to attach such consequences to every breach of jus cogens, serious or not.

1224
Critically: R. KOLB, “Observation sur l’évolution du concept de jus cogens” Revue Générale de Droit
Internationale Public 2009, 846 et seq.

267
 In conclusion, whereas jus cogens has evolved from a ground of nullity to a ground of
invalidity of all derogatory acts and has established a hierarchy in international law, its
implementation and application is not satisfactorily guaranteed.

268
CHAPTER.5. THE ROLE OF JUS COGENS

SECTION.1. INTRODUCTION

284. In Chapter 1 the requirements which norms of jus cogens have to fulfil have been
analysed; Chapter 2 examined the other criteria of identification of peremptory norms;
Chapter 3 proposed how acceptance of a norm as peremptory can be established and
discussed how peremptory norms can be abrogated or modified; Chapter 4 looked into the
consequences of peremptory norms in and outside the law of treaties in order to find
additional means to identify peremptory norms. In this chapter the role of jus cogens in the
international legal order will be scrutinized, taken into consideration the findings in Chapters
1 to 4. Any ascribed role to jus cogens must be compatible with the constitutive elements of
peremptory norms, how they change and their consequences. Discovering the true role of jus
cogens might alleviate the problem in that the function of jus cogens might serve as a
conceptual framework in which to identify those norms.

285. The concept of jus cogens has been largely considered to function as the international
ordre public of the international community, or at least to be closely related to that concept. It
can indeed be argued that the concept of jus cogens flows from the theory of the illegal object
of treaties, a doctrine which was already espoused in the nineteenth century. According to this
theory, treaties could not have any object States desired, but treaties should respect certain
moral norms and some rules of international law. Nonetheless, it did not necessarily attach
certain consequences to the existence of a rule on the illegality of certain treaties.1225 Taking
this doctrinal background into account, it is not unreasonable to hold that jus cogens in
essence functions likes the national ordre public policy which invalidates contracts going
against principles of ordre public. According to this viewpoint, treaties or other sources of
international law – if one regards consent as the necessary element of each source of
international law – can be considered a sort of contract which must respect the ordre public of
the international community.

286. Within the International Law Commission, the issue of the illegality of treaties because
of their object was raised by YEPES.1226 Members of the International Law Commission
frequently used the terms international legal order, public order, public policy, international
order, ordre public (international) and contra bonos mores when discussing jus cogens.1227

1225
R.St.J. MACDONALD, “Fundamental Norms in Contemporary International Law”, Canadian Yearbook of
International Law 1987, 129; K. ZEMANEK, “How to Identify Peremptory Norms of International Law”, in P.-
M. DUPUY et al. (eds), Völkerrecht as Wertordnung, Festschrift für Christian Tomuschat, Kehl, Engel, 2006,
1103. For an overview of scholars supporting the doctrine of illicit object of a treaty: H. ROLIN, “Vers un ordre
public réellement international”, in X., Hommage d’une generation de juristes au Président Basdevant, Paris,
Pedone, 1960, 451-454.
1226
YEPES, 78th Meeting of the International Law Commission, Yearbook of the International Law Commission
1950, Vol. I, §§ 49-69.
1227
EL-ERIAN, 676th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 39; YASSEEN, 683rd Meeting of the International Law Commission, l.c., § 37, § 41,
and § 43; PAL, 683rd Meeting of the International Law Commission, l.c., § 64 and § 67; BARTOŠ, 683rd Meeting
of the International Law Commission, l.c., § 81 and § 85; AMADO, 684th Meeting of the International Law
Commission, l.c., § 14; TUNKIN, 684th Meeting of the International Law Commission, l.c., § 24; DE LUNA, 684th
Meeting of the International Law Commission, l.c., § 61; GROS, 684th Meeting of the International Law

269
The conception of jus cogens as ordre public of the international legal order found also
support at the Vienna Conference on the Law of Treaties1228 and in case law1229. The majority
of scholarly opinion also underscores this view.1230

287. Besides significant support for jus cogens as the international ordre public there has
been some support in the literature to consider peremptory norms as the constitutional rules of

Commission, l.c., § 70; BARTOŠ, 685th Meeting of the International Law Commission, l.c., §§ 34-35; LACHS,
692nd Meeting of the International Law Commission, l.c., § 31; BARTOŠ , 702nd Meeting of the International
Law Commission, l.c., § 31; DE LUNA, 705th Meeting of the International Law Commission, l.c., § 59; PESSOU,
705th Meeting of the International Law Commission, l.c., § 60; EL-ERIAN, 705th Meeting of the International
Law Commission, l.c., § 66; BARTOŠ, 705th Meeting of the International Law Commission, l.c., § 73; ROSENNE,
828th Meeting of the International Law Commission, Yearbook of the International Law Commission 1966, Vol.
I, § 21; YASSEEN, 828th Meeting of the International Law Commission, l.c., § 27; BARTOŠ, 828th Meeting of the
International Law Commission, l.c., § 40; BRIGGS, 828th Meeting of the International Law Commission, l.c., §
42, § 44; RUDA, 835th Meeting of the International Law Commission, Yearbook l.c., §§ 66-67; RUDA, 841st
Meeting of the International Law Commission, l.c., § 2; BARTOŠ, 846th Meeting of the International Law
Commission, l.c., § 27; JIMÉNEZ DE ARÉCHAGA, 847th Meeting of the International Law Commission, l.c., § 62;
BARTOŠ, 849th Meeting of the International Law Commission, l.c., § 65.
1228
Greece, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, §§ 19-20; Iraq, 52nd Meeting of the Committee of the Whole, l.c., § 23; Lebanon,
52nd Meeting of the Committee of the Whole, l.c., § 44; Nigeria, 52nd Meeting of the Committee of the Whole,
l.c., § 48; Columbia, 53rd Meeting of the Committee of the Whole, l.c., § 26; Cyprus, 53rd Meeting of the
Committee of the Whole, l.c., § 68; India, 54th Meeting of the Committee of the Whole, l.c., § 18 (public order
and constitutionality); Federal Republic of Germany, 55th Meeting of the Committee of the Whole, l.c, § 31;
Switzerland, 56th Meeting of the Committee of the Whole, l.c., § 26; Malaysia, 56th Meeting of the Committee
of the Whole, l.c., § 50; Philippines, 19th Plenary Meeting, United Nations Conference on the Law of Treaties,
Official Records, Vol. II, 1970, § 24; Federal Republic of Germany, 19th Plenary Meeting, l.c., § 26; Cameroon,
19th Plenary Meeting, l.c., § 58; Turkey, 19th Plenary Meeting, l.c., § 64; Cyprus, 20th Plenary Meeting, l.c., §
34; Belgium, 20th Plenary Meeting, l.c., § 57; Libya, 20th Plenary Meeting, l.c., § 62.
1229
Re United States v. Alfred Krupp et al., Trials of War Criminals before the Nuremberg Military Tribunals
under Control Council Law No. 10, Vol. IX, 1950, 1395; District Court of Tokyo, Shuikōsha case, 28 February
1966, Japanese Annual of International Law 1969, 115; Separate Opinion Judge MORENO-QUINTANA,
Application of the Convention of 1902 Governing the Guardianship of Infants (The Netherlands v. Sweden),
Judgment, ICJ Rep. 1958, 106-107.
1230
A. CASSESE, International Law, Oxford, Oxford University Press, 2005, 204; A.-J. LEONETTI,
“Interprétation des traités et règles imperatives du droit international general (jus cogens)”, österreichisches
Zeitschrift fur öffentliches Recht 1973, 93; R. MONACO, “Cours général de droit international public”, Recueil
des Cours 1968-III, 206-208; A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford
University Press, 2006, 29-31 and 48-49; J. DUGARD, Recognition and the United Nations, Cambridge, Grotius,
1987, 149; W.C. JENKS, The Prospects of International Arbitration, London, Stevens & Sons, 1964, 457-458;
C. DE VISSCHER, “Positivisme et ‘jus cogens’”, Revue Général de Droit International Public 1971, 9; D.
SHELTON, “International Law and ‘Relative Normativity’”, in M.D. EVANS (ed.), International Law, Oxford,
Oxford University Press, 2003, 151; D. SHELTON, “Normative Hierarchy in International Law”, American
Journal of International Law 2006, 317; C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law
Journal 1994-1995, 147; E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit
international public, Athens, Éditions Papazissis, 1974, 10 and 37; T.O. ELIAS, “Problems concerning the
Validity of Treaties”, Recueil des Cours 1971-III, 388; J. VERHOEVEN, “Jus Cogens and Reservations or
‘Counterreservations’ to the Jurisdiction of the International Court of Justice”, in K. WELLENS (ed.),
International Law: Theory and Practice, Essays in Honour of Eric Suy, Den Haag, Nijhoff, 1998, 195-196;
A.C. BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A Proposed Exception to
Immunity for Violations of Peremptory Norms of International Law”, California Law Review 1989, 387; A.
VERDROSS, “Jus Dispositivum and Jus Cogens in International Law”, American Journal of International Law
1966, 58.

270
the international community.1231 This point of view can also be found in the preparatory work
of the Vienna Convention on the Law of Treaties. In the International Law Commission, DE
LUNA pointed out that jus cogens rules constituted the constitutional rules of the international
community.1232 On another occasion, he considered jus cogens as the minimum body of rules
the international community regarded as essential for its existence at a certain moment in
time.1233 BRIGGS made an analogy between norms of jus cogens and constitutional review in
the United States of America1234 and JIMÉNEZ DE ARÉCHAGA made a comparison between jus
cogens and invalidity at the national level of statutes conflicting with the constitution.1235 In
addition, certain States at the Vienna Conference pointed to the similarity between jus cogens
and constitutionality of laws in the domestic legal order.1236

288. The role of jus cogens in the international legal system is either that of ordre public or
that of the constitution of the international community. Both points of view need elaboration.
Jus cogens as the ordre public assumes that international law contains or ought to contain this
legal concept that is used at the municipal level to invalidate contracts that go against
important community interests. Since the notion of ordre public does not feature as such in
conventional or customary law, the thesis will follow the opinion of VERDROSS that the
concept of ordre public is part of international law as a general principle of law.1237 Second,
provided this is the case, it will be examined whether jus cogens performs the function of
ordre public of the international legal system and whether this point of view can adequately
explain most of the consequences flowing from jus cogens. In this respect it will be
demonstrated that although this conception of jus cogens can explain certain features of jus
cogens, it fails to elucidate how customary norms, unilateral acts and even certain treaties are

1231
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 9-
10; M.W. JANIS, “The Nature of Jus Cogens”, Connecticut Journal of International Law 1987-1988, 363; C.L.
ROZAKIS, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-Holland, 1976, 15; T. MERON,
“On a Hierarchy of International Human Rights”, American Journal of International Law 1986, 9; R. MONACO,
“Observations sur la hiérarchie des sources du droit international”, in R. BERNHARDT et al. (eds.), Völkerrecht
als Rechtsordnung, Menschenrechte, Internationale Gerichtsbarkeit, Festschrift für Herrmann Mosler, Berlin,
Springer, 1983, 607-608 and 613; V. BORE EVENO, “Le contrôle juridictionnel des résolutions du Conseil de
Sécurité”, Revue Générale de Droit International Public 2006, 836
1232 th
DE LUNA, 684 Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 65.
1233
De LUNA, 685th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 39. See also: DE LUNA, 835th Meeting of the International Law Commission,
Yearbook of the International Law Commission 1966, Vol. I, § 40, concerning the inadequacy of the term
“imperative” to indicate a constitutional norm.
1234
BRIGGS, 828th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1966, Vol. I, § 44.
1235
JIMÉNEZ DE ARÉCHAGA, 835th Meeting of the International Law Commission, Yearbook of the International
Law Commission 1966, Vol. I, § 45.
1236
India, 54th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 18; Italy, 54th Meeting of the Committee of the Whole, l.c., § 41; Norway, 56th
Meeting of the Committee of the Whole, l.c., § 36.
1237
A. VERDROSS, “Jus Dispositivum and Jus Cogens in International Law”, American Journal of International
Law 1966, 61. See also: CASTRÉN, 683rd Meeting of the International Law Commission, Yearbook of the
International Law Commission 1963, Vol. I, § 70; A. ORAKHELASHVILI, Peremptory Norms in International
Law, Oxford, Oxford University Press, 2006, 133; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker &
Humlot, 1992, 108.

271
invalidated for conflict with a peremptory norm, one of the core aspects of jus cogens.
Therefore, the point of view of jus cogens as the international ordre public cannot be retained.

289. The Chapter then turns to discuss the possible role of jus cogens as the constitutional
norms of the international community. Constitutions are typically operative at the State level
and the international level may not be deemed suitable to have such norms. Nonetheless, it
will be demonstrated that the concept of a constitution is wide enough to function at the
international level. Therefore, in a first part the concept of a constitution will be defined. In
addition, defending the view that international law has constitutional norms implies that one
adheres to a form of constitutionalism and that one believes that international law is
constitutionalizing. Both terms equally need to be clarified. After setting out what is meant by
“constitution”, “constitutionalism” and “constitutionalization”, criticisms to the constitutional
movement in international law will be outlined and a reply given. In a next part it will be
examined whether jus cogens can indeed be said to operate as constitutional norms at the
international level. It will be demonstrated that peremptory norms can be best regarded as the
constitutional norms of the international community, since this perspective best fits with the
concept, change and consequences of jus cogens. If one advocates that jus cogens operates as
the constitutional norms of the international community, one is not merely taking a neutral
stance, but adopting a certain perspective on international law. In this respect it will be
highlighted that considering jus cogens as reflecting the constitutional norms of the
international community is firmly embedded in liberalism and advances a Kantian project for
international law.

SECTION.2. JUS COGENS AS ORDRE PUBLIC OF THE INTERNATIONAL COMMUNITY

§1. Ordre public as a general principle of law

290. Since the concept of ordre public does not explicitly appear in treaty law or customary
international law, it is a general principle of law. Previously, it has been established that a
general principle of law is comprised of two categories, the first being general principles of
law present in the domestic legal systems and which can be transposed to the international
level in order to fill in gaps and general principles of law which are necessary in every legal
system. In this respect, it has been remarked that in each and every national legal system there
exists a mechanism to nullify legal contracts or acts if they are contrary to the law or good
morals.1238 Moreover, it has been argued that every society regardless of its composition
should have this principle. Therefore, it has been argued that international law must
necessarily have a concept cognate to ordre public at the national level.1239 International law,
like every legal system needs norms which protect the most important interests of the
international community from derogation by international actors. Thus, MCNAIR stated that
every society, whether of individuals or States, should have a minimum of laws or moral

1238
K. ZWEIGERT and H. KÖTZ, An Introduction to Comparative Law, Oxford, Oxford University Press, 1998,
381; See also: E.P. NICOLOUDIS, La nullité de jus cogens et le développement contemporain du droit
international public, Athens, Éditions Papazissis, 1974, 37.
1239
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 28;
C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 153; A. VON
VERDROSS, “Forbidden Treaties in International Law”, American Journal of International Law 1937, 572.

272
principles which should be respected and do not allow for contracting out.1240 Similarly the
Tokyo District Court held that international law, in order to be qualified as law, is in need of
public order and good manners.1241 It is indeed a truism that every legal system must have
some norms that cannot be set aside by its subjects, otherwise the obligatory nature of law
would be virtually non-existent. Since international law cannot be law without possessing the
concept of ordre public, the concept of ordre public could be qualified as a general principle
that is inherent to each and every legal system, including the international legal system. The
concept of jus cogens would then be the concretization of this ordre public at the international
level, at least in the law of treaties.1242 Nonetheless, this does not imply that the concept of
ordre public at the international level should be the same as that of the national level. General
principles of law need to be individuated and the peculiarities of the international legal system
may lead to a different manifestation of ordre public at the international level. Nevertheless,
in order to assess whether jus cogens may be regarded as the ordre public of the international
legal system the thesis will first look into the concept of ordre public at the national level and
then inquire whether the concept of ordre public at the national level can also be maintained
at the international level.

A. Ordre public at the national level

291. Examination of ordre public in the main representative legal systems of civil and
common law shows that it is a concept evading precise definition. In France contracts can be
declared void if contrary to the ordre public and “bonnes moers”.1243 Doctrine makes a
distinction between the two notions, although there is a certain linkage since both concepts are
limiting contractual freedom by imposing social boundaries upon contractors. In this respect,
they reflect the common societal interest which goes beyond the individual interests of the
parties. Furthermore, both have an undetermined content; they contain norms which cannot be
reduced to one particular definition and will thus require judicial intervention to clarify the
concepts.1244 Concerning ordre public, the concept essentially boils down to a conflict
between interests which is resolved in favour of a particular group of interest because they are
deemed to be ranked higher on the value scale. The ordre public is filled in by laws which

1240
A.D. MCNAIR, The Law of Treaties, Oxford, Clarendon, 1961, 213-214; see also: K. MAREK, “Contribution
à l’étude du jus cogens en droit international”, in INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES
INTERNATIONALES (ed.), Recueil d’études de droit international en hommage à Paul Guggenheim, Geneva,
Imprimerie de la Tribune, 1968, 427 and 429; A. ORAKHELASHVILI, “International Public Order and the
International Court’s Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory”, Archiv des Völkerrecht 2005, 241.
1241
District Court of Tokyo, Shuikōsha case, 28 February 1966, Japanese Annual of International Law 1969,
115.
1242
There is some support in doctrine to regard the international ordre public as being wider in scope than jus
cogens which is limited to the law of treaties: E. SUY, “New Normativity in the International Community?
Discussion”, in A. CASSESE and J.H.H. WEILER (eds.), Change and Stability in International Law-Making,
Berlin, de Gruyter, 1988, 97; E. STRYDOM, “Ius Cogens: Peremptory Norm or Totalitarian Instrument”, South
Africa Yearbook of International Law 1988-1989, 46; W. LEVI, “The International Ordre Public”, Revue de
Droit International, de Sciences Diplomatiques et Politiques 1994, 56; H. MOSLER, “The International Society
as a Legal Community”, Recueil des Cours 1974-IV, 35.
1243
Article 6 Code civil (1804).
1244
F. TERRÉ, P. SIMLER and Y. LEQUETTE, Droit civil, Les obligations, Paris, Dalloz, 2005, 378.

273
explicitly provide that they belong to the ordre public by stipulating that contracts going
against the law are invalid and void; laws prohibiting certain contracts or clauses or criminal
laws also belong to this explicit ordre public. However, the French ordre public is larger than
this explicit ordre public and contains also all essential interest of society even if these are not
laid down in any law at all. This implicit ordre public is very flexible and can change over
time. French case law has accepted that contracts which are not going against any law, still
can be held to go against the ordre public when its object or cause goes against the
fundamental principles of French society.1245 In this regard, judges will have significant
discretion, but they cannot be said to have absolute power to determine personally which
political, social or economic principles are contained in this implicit ordre public. Rather,
judges must find inspiration in the totality of French law and in the spirit of the law, an
inspiration which is eventually checked by the highest court, the Cour de cassation.1246 In any
event, after having established the relevant rules of ordre public, the French judge also has to
examine whether the terms of the contract violate the ordre public, which entails again a
certain margin of discretion.1247
Besides ordre public, French law also lays down the invalidity of contracts going
against bonnes moeurs. The concept of bonnes moeurs functions as a bridge allowing moral
considerations to be brought into law when judging the validity of contracts.1248 Thus,
contracts going against the bonnes moeurs are held invalid because they are immoral.
Whether a contract is immoral will depend on the good morals in force in a given society in a
given time. The notion is therefore even more flexible and subject to judicial discretion than
the concept of ordre public. It would be wrong however to consider the morals of the majority
in a society as the criterion for good morals since French law does not invalidate contracts
going against morals practiced by the bulk of society, but against good morals, which implies
a form of ethical transcendental judgment on which morals in society deserve the label of
good morals.1249 Moreover, illegality of contracts by immorality is only relevant in case of
agreements promoting sexual immorality or going against the main principles of family
life.1250

292. At first sight German civil law does not know the concept of ordre public as French
law; it does however have the concept of gute Sitte or Sittenwidrigkeit, a concept that seems to
lean closely to the French bonnes moeurs. However besides Sittenwidrigkeit German civil law
also declares contracts null if they go against prohibitive laws. In this respect, § 134
Bürgerliches Gezetsbuch declares that legal acts going against such laws are null if the
prohibition itself does not provide for any other sanction. The purpose of this provision is to
limit the autonomy of the parties or the law subjects in order to protect the core of the legal
system.1251 § 134 does not determine which prohibitions are covered by it, it only establishes
the legal consequences of a legal act or contract which goes against a prohibitive law upon the

1245
F. TERRÉ, P. SIMLER and Y. LEQUETTE, Droit civil, Les obligations, Paris, Dalloz, 2005, 381.
1246
Ibid., 381-382.
1247
Ibid., 382.
1248
G. RIPERT, La règle morale dans les obligations civiles, Paris, LGDJ, 1949, 41-42.
1249
F. TERRÉ, P. SIMLER and Y. LEQUETTE, Droit civil, Les obligations, Paris, Dalloz, 2005, 392-393.
1250
H. BEALE, A. HARTKAMP, H. KÖTZ and D. TALLON, Cases, Materials and Text on Contract Law, Oxford,
Hart, 2002, 296-297.
1251
R. BORK, Allgemeiner Teil des Bürgerlichen Gesetsbuch, Tübingen, Mohr Siebeck, 2006, 250, No. 663.

274
moment they come into existence.1252 The provision does also not establish what is meant by
prohibitive laws a judge should take into consideration. Typically, prohibitive laws in the
meaning of § 134 can be found in public law and in particular criminal law which as a rule
does not establish the consequences of contracts or juridical acts which go against the
substantive provisions of criminal law. More problematic are constitutional rights since as
such they do only provide for prohibitions for the government, but do not necessarily have
Drittwerkung.1253 Yet, contracts violating the constitutional rights of one of the parties could
be qualified as Sittenwidrig.
According to § 138, first alinea contracts and other juridical acts which go against the
gute Sitten are null. It thereby introduces non-legal, ethical norms operating in society into the
legal order in order to assess the validity of juridical acts, in particular contracts.
Consequently, contracts or other juridical acts which go against the ruling societal morality
are considered void. The German legislator has given the task to clarify which moral norms
belong to the gute Sitten to the judiciary, which in this respect has a large discretionary power.
Nevertheless, it will not be the personal convictions of the judge which will play a role, but
rather the morality living within society.1254 In order to determine the content of gute Sitten,
judges will look at the legal opinion and decency of all just and reasonable human beings.1255
Nevertheless, the clause remains vague and it can be doubted that even all the just and
reasonable human beings would agree upon what is contained within the notion. Furthermore,
the content of gute Sitten is very flexible since what today is accepted in a particular case as
immoral conduct, would not be so regarded in another time or context. Therefore, legal
doctrine has searched for more stable grounds in identifying gute Sitte by looking whether
juridical acts are not going against legal values or whether juridical act do not negate values
which the legal order seeks to uphold.1256 In this respect, the basic rights of the human person
are of the utmost importance. Values enshrined in the German Constitution are therefore held
to be very indicative in order to determine whether a contract goes against the gute Sitten even
though strictly speaking they do not have Drittwerkung. Generally, if the constitution protects
certain rights of subjects against the State, then these subjective rights should also be
protected in civil law, in legal relations between subjects.1257 Regardless of the standards
involved in the concept of gute Sitten, German law requires in every case a balancing of
interest to determine whether a juridical act is contrary to gute Sitten, involving a balancing of
all the relevant found circumstances.

293. In the common law, the notion of public policy has been considered as an unruly
horse.1258 Nevertheless there is general agreement that there is a need to limit the contractual
freedom for reasons of public interests.1259 In the United Kingdom, statute and common law
place limits on contractual freedom. Consequently, contracts would go against public policy if

1252
Ibid., 412, No. 1089.
1253
Ibid., 417-418, Nos. 1103-1107.
1254
Ibid., 438-439,
1255
Bundesgerichtshof, Judgment of 28 November 1990, Neue Juristische Wochenschrift 1991, 914.
1256
W. FLUME, Allgemeiner Teil des Bürgerliches Rechts, Berlin, Springer, 1992, § 18, 1.
1257
R. BORK, Allgemeiner Teil des Bürgerlichen Gesetsbuch, Tübingen, Mohr Siebeck, 2006, 449, No. 1182.
1258
Richardson v. Mellish [1824], 130 ER 303, per Burrough J.
1259
K. ZWEIGERT and H. KÖTZ, An Introduction to Comparative Law, Oxford, Oxford University Press, 1998,
381: every national legal system has a mechanism to nullify legal contracts or acts if they are contrary to the law
of good morals.

275
the contract as such or its performance would go against statutes or against the common law.
Yet, the problem within the United Kingdom is the absence of a coherent doctrine on public
policy, in particular its consequences for the agreements, added with the diversity of the fields
in which this doctrine applies,1260 especially in the common law.
Illegality by statute is present when a statute upon its correct interpretation deprives one
or both parties of the contract of its right of action upon the contract, in addition to or instead
of another penalty.1261 Therefore, one has to look at what the statute explicitly or implicitly
prohibits. In such a case it is irrelevant whether the parties intended to break the law or not.
The mere fact that the parties adopt a contract which is prohibited by the law or does not
respect the conditions of the statute will be sufficient regardless of the intent of the parties.1262
Statutes may expressly determine that civil remedies cannot be initiated even if the contract
itself is not illegal. Consequently, the contract may be deemed void, in the meaning of
inability to launch civil action, without the contract being illegal.1263 In many cases however,
the statute will not pronounce itself on the issue of civil remedies, but will merely penalize the
type of contract or the performance of a contract in a particular way. The courts will then have
to interpret the statute and determine whether it is intending to prohibit certain contracts or
only prohibits the performance of an act.1264
Besides illegality based on statutes, another category of illegal contracts exists, namely
contracts which infringe the common law. The cases involving illegality of contracts pursuant
the common law are vast and a detailed description would surpass the purpose of the
examination of national ordre public. Therefore only a cursory overview is offered.
Generally, the common law invalidates five categories of contracts, namely contracts with an
object illegal under statute law or common law; contracts with an object injurious to good
government in domestic or foreign affairs; contracts having as object the interference with the
good functioning of the justice system; contracts with an object going against the public
interest; and lastly contracts with an immoral object.1265 The last category of illegal contracts
is akin to bonnes moeurs in French civil law. It concerns agreements whose object is injurious
to morality and marriage. Concerning contracts with an immoral object, immorality is limited
to sexual immorality.1266 For instance, contracts involving prostitution are unenforceable.
Consequently, contracts selling or renting premises or other objects to a prostitute with the
knowledge that the premises or objects will be used for prostitution are against public

1260
D.D. PRENTICE, “Illegality and Public Policy”, in H.G. BEALE et al. (eds.), Chitty on Contracts, Volume I,
General Principles, London, Sweet & Maxwell, 2004, 937-938, No. 16-001.
1261
Ibid., 1020, No. 16-141; J. BEATSON, Anson’s Law of Contract, Oxford, Oxford University Press, 2002,
349.
1262
Re Mahmoud and Ispahani (1921), 2 K.B 716.
1263
D.D. PRENTICE, “Illegality and Public Policy”, in H.G. BEALE et al. (eds.), Chitty on Contracts, Volume I,
General Principles, London, Sweet & Maxwell, 2004, 1020-1021, No. 16-141, 1021, No. 16-143.
1264
Archbolds (Freightage) Ltd v. S. Spanglett Ltd. (1961), 1 Q.B. 389-390; St. John Shipping Corporation v.
Joseph Rank Ltd. (1957), 1 Q.B. 267; D.D. PRENTICE, “Illegality and Public Policy”, in H.G. BEALE et al.
(eds.), Chitty on Contracts, Volume I, General Principles, London, Sweet & Maxwell, 2004, 1022, No. 16-145;
J. BEATSON, Anson’s Law of Contract, Oxford, Oxford University Press, 2002, 351-352.
1265
D.D. PRENTICE, “Illegality and Public Policy”, in H.G. BEALE et al. (eds.), Chitty on Contracts, Volume I,
General Principles, London, Sweet & Maxwell, 2004, 940, No. 16-005.
1266
Coral Leisure Group Ltd. v. Barnett [1981] I.C.R. 506.

276
policy.1267 Another group of contracts which are illegal because of immorality are contracts
interfering with marriages, such as promises by a married person to marry someone who had
knowledge of the status of the married person.1268 The promise remains unenforceable after
the death of the spouse or a divorce. Also a marriage brokerage contract or an undertaking to
marry people for a reward was considered immoral and hence illegal, although the law might
have evolved on this issue.1269 Finally, a contract restraining or preventing a party to marry is
against public policy.1270

294. The concept of public policy in the United States encompasses in the words of
CARDOZO “some fundamental principle of justice, some prevalent conception of good morals,
some deep-rooted tradition of the commonweal”.1271 A New York court stated that “Public
policy is not determinable by mere reference to the laws of the forum alone. Strong public
policy is found in prevailing social and moral attitudes of the community.”1272 The California
Supreme Court considered public policy as “recognized standards of morality and […] the
general interest of citizens.”1273 The Supreme Court seems to be stricter in its definition of
public policy since it requires for its application definite indications in the law. It however
added that public policy includes “obvious ethical and moral standards”1274. On another
occasion it stated that public policy “derives from the basic notion that no court will lend its
aid to one who founds a cause of action upon an immoral or illegal act, and is further justified
by the observation that the public’s interest in confining the scope of private agreements to
which it is not a party will go unrepresented unless the judiciary takes account of those
interests when it considers whether to enforce such agreements”1275. However, generally, the
Supreme Court is rather reluctant to base its findings of illegality of contracts on good morals,
but rather focuses on statute and precedent.1276
Like in the United Kingdom contracts can be declared unenforceable because their
content or performance infringes public policy derived from statutes and common law. Statute
law is increasingly incorporating the doctrines on public policy in the common law. If a
contract at the moment of its conclusion infringes public policy laid down in the statute it will
not be enforced.1277 Nevertheless, when legislators make statutes they do not always explicitly

1267
D.D. PRENTICE, “Illegality and Public Policy”, in H.G. BEALE et al. (eds.), Chitty on Contracts, Volume I,
General Principles, London, Sweet & Maxwell, 2004, 976-977, Nos. 16-067-16-069; J. BEATSON, Anson’s Law
of Contract, Oxford, Oxford University Press, 2002, 362.
1268
Wilson v. Carnley [1908] 1.K.B. 729; Spiers v. Hunt [1908] 1 K.B. 720; Siveyer v. Allison [1935] 2 K.B.
403.
1269
D.D. PRENTICE, “Illegality and Public Policy”, in H.G. BEALE et al. (eds.), Chitty on Contracts, Volume I,
General Principles, London, Sweet & Maxwell, 2004, 978, No. 16-071; J. BEATSON, Anson’s Law of Contract,
Oxford, Oxford University Press, 2002, 363.
1270
Ibid., 979, No. 16-072; J. BEATSON, Anson’s Law of Contract, Oxford, Oxford University Press, 2002, 363.
1271
Loucks v. Standard Oil Co., 224 N.Y. 111 (1918).
1272
International Hotels (Puerto Rico Corp.) v. Jack Golden, 15 N.Y. 2d 14 (1964).
1273
Wong v. Tenneco Inc., 702 P.2d 576 (Cal. 1985).
1274
Muschany et al. v. United States, 324 U.S. 66-67 (1944).
1275
W.R. Grace & Co. v. Rubber Workers, 461 U.S. 766 (1983).
1276
Especially the Warren Court focused on statute and precedent, but also later Supreme Court benches have
stressed the importance of statute and precedent over considerations of morality: see: United Paperworkers
International Union v. Misco Inc., 484 U.S. 29 (1987); G.R. SHELL, “Contracts in the Modern Supreme Court,
California Law Review 1993, 450 and 452.
1277
Even if the law changes later: Interinsurance Exch. v. Ohio Cas. Ins. Co., 373 P.2d 640 (Cal. 1962);
Fitzsimmons v. Eagle Brewing Co., 107 F.2d 712 (3rd Cir. 1939).

277
qualify the fate of contracts going against the statute, even in case of criminal laws. Therefore,
it will remain the function of the courts to decide whether a contract, taking into consideration
the public policy protected by the statute, is unenforceable, or in other words to balance the
freedom of contract with the public interest.1278 In any event, if a statute or other law
determines that certain contracts are not allowed or prohibits the agreed conduct, courts in the
United States have held that the agreement is necessarily unenforceable.1279 Yet, is has been
rightly remarked that this is not intrinsically so.1280 The legislator can be satisfied with the
sanction provided in the law, without declaring the contract void as an additional sanction.1281
Therefore, courts will take into account the subject matter of the contract, the importance of
the public policy contained in the statute, the likelihood that refusal to enforce the contract
will further the policy, how serious or deserved the non-enforcing of the contract would be,
and the parties’ relative bargaining power and freedom of contract.1282 The courts could also
take into account the intention of the legislator and the overall legislative scheme.1283
Most of the doctrine of public policy at common law is firmly rooted in accumulated
precedents. The grounds of public policy at common law are based on morality, on economic
notions, or to protect the functioning of government.1284 In any event, public policy developed
by the courts is not constant and changes with societal views on which policies deserve
protection against contractual freedom. The part of public policy that is closely linked to good
morals is the policy against impairment of family relations, in particular marriage relations.
Such agreements include covenants restricting the freedom of unmarried persons to marry,
changing the incidents of marriage, promoting divorce or separation and agreement of persons
living together while unmarried.1285 Agreements restricting the right of marriage have to be
reasonable, i.e. there must be a legitimate purpose for one party not to get married; if not the
agreement will not be upheld.1286 In order to assess the reasonableness of an agreement
restricting marriage, courts will also take into considerations the scope and time of the
restriction.1287 Agreements changing the incidents of marriage are allowed if they specify or
enhance the incidents of marriage or if they deal with the division of property.1288 However,
contracts limiting support between the spouses or former spouses made whilst married are
generally not upheld since they are contrary to public policy,1289 unless they are fair.1290
Courts in the United States will also not enforce agreements tending unreasonably towards the
dissolution of marriage. Typically promises made to marry another person during one’s

1278
E.A. FARNSWORTH, Farnsworth on Contracts, Volume II, New York, Aspen Publishers, 2004, 68-69.
1279
Sauls v. Stone 241 So.2d 836 (Ala. 1970); Ewing v. Halsey, 272 P. 187 (Kan. 1928).
1280
E.A. FARNSWORTH, Farnsworth on Contracts, Volume II, New York, Aspen Publishers, 2004, 70.
1281
See: Daynard v. Ness, Motley, Loadholt, Richardson & Poole, 188 F.Supp.2d 115 (D. Mass. 2002).
1282
Fresh Cut v. Fazli, 650 N.E.2d 1126 (Ind. 1995).
1283
E.A. FARNSWORTH, Farnsworth on Contracts, Volume II, New York, Aspen Publishers, 2004, 71-72.
1284
Ibid., 9-11.
1285
Ibid., 52.
1286
McCoy v. Flynn, 151 N.W. 465 (Iowa 1915).
1287
E.A. FARNSWORTH, Farnsworth on Contracts, Volume II, New York, Aspen Publishers, 2004, 55.
1288
See: Department of Human Resources v. Williams, 202 S.E.2d 504 (Ga. App. 1973); In Re Marriage of
Dawley, 551 P.2d 323 (Cal. 1976); Tomlinson v. Tomlinson, 352 N.E.2d 785 (Ind. App. 1976).
1289
Cord v. Neuhoff, 573 P.2d 1170 (Nev. 1978); In Re Marriage of Wineyard, 278 N.W.2d 505 (Iowa 1979);
Motley v. Motley, 120 S.E.2d 420 (N.C. 1961).
1290
Posner v. Posner, 257 So.2d 530 (Fla. 1972).

278
marriage are void.1291 Finally, United States Courts have struggled with the legal issues
flowing from contracts between unmarried persons living together in a stable relationship
dealing with issues of that relationship. Traditionally, courts were suspicious of these
agreements since they considered such contracts as undermining the institution of
marriage.1292 Yet, the case law in this matter has changed and gradually courts have come to
the conclusion that these contracts are only unenforceable when they explicitly rest upon the
immoral and illicit consideration of meretricious sexual services.1293

295. From the foregoing brief examination of the concept of ordre public in the major
representative legal systems of civil and common law it can be concluded that ordre public
policy consists of two main categories. On the one hand, it is comprised of enacted laws and
established precedent, or in other words positive law. On the other hand, ordre public goes
beyond established law by including also principles of morality. Hence, contracts which are as
such not going against any law could still be declared void if not respecting the moral
foundations of a certain community. Moreover, the whole doctrine of ordre public has a
moral basis. It is based on the principle ex injuria non orit jus or ex dolo malo non oritur
actio.1294 Ordre public fits uneasily with the freedom of contract, which upholds that if parties
respect certain formalities the contract concluded between them is binding and should not be
scrutinized as to its content. However, this is exactly what the doctrine of ordre public does: it
does not enforce certain contracts even if the parties entered freely into them and agree on the
substance. The assumption of ordre public is that persons are moral and law-abiding persons
who in concluding the contract respect the existing mores and laws in a society. The whole
doctrine of ordre public is thus based on a moral point of view on contract law,1295 namely
that individuals living in a community will take the needs of the community into
consideration when concluding agreements. In order for contracts to perform their function in
society, contracts should not undermine other institutions in society.1296
A second aspect of ordre public is the wide power of courts in determining the validity
of contracts with ordre public despite the fact that the legislator increasingly has codified the
heads of ordre public. In absence of a clear determination of the legislator, it will be the task
of courts to find whether a certain law belongs to the ordre public of the country. In this
respect, some have regarded ordre public as a concept which allows the judge to legislate or
to interpret based upon the needs of the community.1297 Yet, domestic courts typically limit its
use to void contracts going against ordre public and not as a broad principle of judicial

1291
Reynolds v. Estate of Reynolds, 230 S.E.2d 842 (Ga. 1976); Jones v. Sovereign Camp, Woodmen of the
World et al., 35 F.2d 345 (5th Cir. 1929).
1292
Hewitt et al. v. Hewitt, 394 N.E.2d 1204 (Ill. 1979).
1293
Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); E.A. FARNSWORTH, Farnsworth on Contracts, Volume II, New
York, Aspen Publishers, 2004, 62-65.
1294
See: Holman v. Johnson, [1775] 1 Cowp. 343.
1295
J. SHAND, “Unblinkering the Unruly Horse: Public Policy in the Law of Contract”, Cambridge Law Journal
1972, 147.
1296
S. JUDD, “The Unruly Horse Put out to Pasture: The Doctrine of Public Policy in the Modern Law of
Contract”, Auckland University Law Review 1996-1999, 708-709.
1297
P.H. WINFIELD, “Public Policy in the English Common Law”, Harvard Law Review 1928-1929, 92; S.
JUDD, “The Unruly Horse Put out to Pasture: The Doctrine of Public Policy in the Modern Law of Contract”,
Auckland University Law Review 1996-1999, 711.

279
legislation or interpretation.1298 It is not an ideal to which judges try to shape the law in
general.1299 Nevertheless, in this limited legal domain courts have significant discretion in
applying ordre public and will consider the economic, societal and moral interests of the
community when examining the validity of a contract. To illustrate the wide discretion of
courts, ordre public has been famously described as an unruly horse, which could bring
judges to places they did not envisage before.1300 Taken these conclusions into account, I will
now turn to the concept of ordre public at the international level.

B. Ordre public at the international level

296. At the national level, ordre public consists of two counts, illegality because of conflict
between the contract and positive law and illegality due to the immoral nature of the contract.
During its codification on the law of treaties, initially the International Law Commission
seemed to follow this path. Special Rapporteur LAUTERPACHT proposed to include in the
Draft Articles on the Law of Treaties a provision that illegal treaties were void. Such treaties
were void not because they infringed a rule of customary international law, but were
inconsistent with overriding principles of international law which could be regarded as the
international ordre public. Special Rapporteur LAUTERPACHT added that these principles need
not necessarily have crystallized in a rule of customary law, but could also consist of cogent
moral principles.1301 The analogy with ordre public on the national level cannot be clearer:
customary international laws and moral principles would invalidate a treaty, like positive law
and good morals would void contracts. Special Rapporteur FITZMAURICE however made a
distinction between treaties violating jus cogens, or absolute and imperative rules and
prohibitions of international law and treaties with an unethical object, which go against
humanity, good morals, international good order and recognized ethics of international
behaviour.1302 The former lead to the invalidity of the treaty, the latter to the unenforceability
of the treaty before an international tribunal.1303 Consequently, in his view jus cogens at the
international level would be the equivalent of important positive laws on the national level.1304

1298
J. SHAND, “Unblinkering the Unruly Horse: Public Policy in the Law of Contract”, Cambridge Law Journal
1972, 146-147.
1299
P.H. WINFIELD, “Public Policy in the English Common Law”, Harvard Law Review 1928-1929, 100.
1300
Richardson v. Mellish [1824], 130 ER 303, per Burrough J (CP).
1301
Special Rapporteur LAUTERPACHT, “Report on the Law of Treaties”, Yearbook of the International Law
Commission 1953, Vol. II, 155.
1302
Special Rapporteur FITZMAURICE, “Third Report on the Law of Treaties”, Yearbook of the International
Law Commission 1958, Vol. II, 28 and 29.
1303
This is consistent with the Separate Opinion of Judge SCHÜCKING in the Oscar Chinn Case: Judge
SCHÜCKING used the term jus cogens in the framework of a treaty which would establish the nullity of a
convention derogating from it, while he added that the Court would not apply (emphasis added) a convention
which would go against public morality: Separate Opinion Judge SCHÜCKING, The Oscar Chinn Case (The
United Kingdom v. Belgium), Judgment, PCIJ Publ., Series A/B, No. 63, 149-150. See also Special Rapporteur
FITZMAURICE, “Third Report on the Law of Treaties”, Yearbook of the International Law Commission 1958,
Vol. II, 45, note 85.
1304
This becomes especially clear in his comment on Article 17 and Article 20 where he states that the
difference between treaties against jus cogens and treaties with an unethical object lies not with the substance –
they both involve morally important principles – but that the former are contained in a legal rule, while the latter
are not: Special Rapporteur FITZMAURICE, “Third Report on the Law of Treaties”, Yearbook of the International
Law Commission 1958, Vol. II, 40-41 and 45.

280
Finally, Special Rapporteur WALDOCK considered jus cogens as the international public order,
but his definition of jus cogens remains limited to established rules of international law.1305 In
his final comments any reference to the international ordre public has been omitted,1306
however this should not lead to the conclusion that the International Law Commission
abandoned its linkage between jus cogens and international ordre public since the members of
the International Law Commission continued to regard jus cogens as the international ordre
public in their debates.1307 Furthermore, various States at the Vienna Conference also equated
jus cogens with international ordre public.1308 Nevertheless, as demonstrated before, the
introduction of the words “accepted and recognized by the international community of States
as a whole” severed jus cogens unambiguously from moral precepts that are not enshrined in
positive law, i.e. are not accepted or recognized by the near unanimity of States.1309 Hence, in
the end the conclusion is that if ordre public exists in international law it does not include the
voiding or non-enforcing of treaties which are immoral pure and simple. As such this should
not surprise. As long as the international community had the same economic, societal and
moral beliefs – the same Weltanschauung as one member of the International Law
Commission put it –1310 immoral treaties would unlikely arise even in the heydays of
consensual positivism.1311 When due to the advance of communism and the decolonization
this economic, societal and moral consensus evaporated, a retreat to an international ordre
public consisting of rules of general international law accepted by the overwhelming majority
of States was inevitable. However, norms of jus cogens will still contain rules protecting
highly important moral principles and defend the common interest of the international
community, yet unlike before these moral principles and essential interests are not for granted,
they often have to be agreed upon or accepted by incorporation in international law.

297. A consequence of the limiting of international ordre public to generally accepted rules
is that international courts have less discretion than their national counterparts. At the national
level ordre public gives the courts significant discretion in holding a contract void or
otherwise unenforceable by infringing public policy. Courts depart from general often extra-
legal principles from which they draw more specific rules they apply to the particular case.
Consequently, national courts have certain legislative authority in this regard.1312 At the
international level it has been disputed that international courts do have legislative power. The
thesis has however demonstrated that judges have such power when they have to fill in

1305
Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the International Law
Commission 1963, Vol. II, 39 and 52.
1306
“Report of the International Law Commission on the Work on Its Eighteenth Session”, Yearbook of the
International Law Commission 1966, Vol. II, 247-249.
1307
Supra, note 1.
1308
Supra, note 421.
1309
Supra, Chapter 1, Section 3, § 1, A.
1310 th
DE LUNA, 684 Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 61; see also: C.L. ROZAKIS, The Concept of Jus Cogens in the Law of Treaties,
Amsterdam, North-Holland, 1976, 15.
1311
C.A. FORD, “Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-1995, 159. Even if
there would be such a treaty, it would have been considered void: S.E. NAHLIK, “The Grounds of Invalidity and
Termination of Treaties”, American Journal of International Law 1971, 745.
1312
J. SHAND, “Unblinkering the Unruly Horse: Public Policy in the Law of Contract”, Cambridge Law Journal
1972, 144-145.

281
lacunae in international law by using general principles of law,1313 but this does not entail the
voiding of an international rule, since in such case there is no rule in international law dealing
with the issue. Concerning the voiding of international rules on the basis of jus cogens
however, courts cannot apply extra-legal principles since a rule of jus cogens is in the first
place a rule of general international law, which is comprised of multilateral treaty and
customary rules. As a result, an international rule can be declared void if it conflicts with an
established treaty rule or custom and not with some extra-legal principle.

298. The foregoing does not undermine the claim that jus cogens serves as the international
ordre public of the international community or fulfils that function in the law of treaties. It is
not because the content of ordre public at the national level is different from the content of
international ordre public, comprised of norms of jus cogens, that the opinion of jus cogens as
the international ordre public should be discarded. The international legal system is different
from national legal systems and will thus find different solutions to the problem of how to
protect essential community interests.1314 In any event, jus cogens may play a similar role as
national ordre public, namely invalidating derogatory agreements conflicting with rules of
international law protecting interests which go beyond the individual members of the society.
Accordingly, treaties are regarded as similar to contracts, which create only reciprocal rights
and obligations between the parties, whereas norms of jus cogens are operating as ordre
public invalidating treaties derogating from it which is applied through an international
court.1315 Such treaty-contracts are voided when they have an illegal object, i.e. when they
derogate from conventional or customary norms which have been given a heightened status in
international law; unlike domestic jurisdictions the illegality of a treaty object by a mere
immoral object is not retained, since Article 53 requires that a peremptory norm is also part of
general international law.

299. Regarding treaties as contract and jus cogens as the international ordre public explains
the non-severance of treaty provisions conflicting with jus cogens: if a treaty is regarded as a
contract between States or international organizations, an agreement with the specific object
to set aside a particular norm of jus cogens would resemble a contract at the national level
concluded between the parties with the aim to circumvent the ordre public. In such case the
sanction is that the treaty-contract is completely void. The premiss of treaty-contracts is also
clear from the procedure set up to invalidate treaties derogating from jus cogens: it closely
resembles the situation at the domestic level where one of the parties to a contract raises as a
defence for not fulfilling the contract the illegal object of the contract. Hence, the procedure
of the Vienna Convention which only allows the parties to the treaty to invoke its nullity for
derogating from peremptory norms. Considering the foregoing, it is therefore not
unreasonable that legal doctrine has embraced jus cogens as having the role of either the
international ordre public of the international legal system or at least the concretization of
international ordre public in the law of treaties.

1313
Supra, No. 92.
1314
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 28-
29.
1315
R.-J. DUPUY, “Codification et règlement des différends. Les débats de Vienne sur les procédures de
règlement”, Annuaire Français de Droit International 1969, 74 ; J. VERHOEVEN, “Jus Cogens and Reservations
or ‘Counterreservations’ to the Jurisdiction of the International Court of Justice”, in K. WELLENS (ed.),
International Law: Theory and Practice, Essays in Honour of Eric Suy, Den Haag, Nijhoff, 1998, 195-196.

282
§2. Critique on jus cogens as international ordre public

A. Jus cogens as the international ordre public and customary law and unilateral acts

300. The idea that jus cogens functions as the ordre public of the international legal system
fits well with the view that treaties are analogous to contracts in the domestic sphere. Some
elements of jus cogens point in that direction. However, peremptory norms do not only
invalidate treaties, but also custom and unilateral acts. Hence, in order to sustain the concept
of jus cogens as the international ordre public, it has to be demonstrated that custom and
unilateral acts are based on consent, or at least be constructed as such. In addition, can all
treaties be regarded as analogous to contracts or are some treaties more similar to law-
making?

301. As has been previously established, custom has two elements, State practice and opinio
juris. With regard to the latter component, there has been debate in the literature whether
opinio juris equals consent or reflects a belief that a certain norm is part of customary
international law, each position supported by case law of the International Court of Justice
and its predecessor, the Permanent Court of International Justice. However, it has been
demonstrated that custom is not necessarily based upon consent, but that a customary norm is
based upon a shared belief, a conviction that the conduct is required by a norm of customary
international law.1316 Consent could lead to a customary norm being binding upon the State:
consent is a sufficient, but not necessary requirement for custom.1317 Furthermore, custom
cannot be regarded as a tacit agreement. This flows from the nature of the customary process.
Through interacting in society, members of society order the society and create the conditions
for coexistence within that society. Some forms of interaction will give rise to legal norms
due to the shared belief that the conduct of the members of the society should become
obligatory or prohibited by a legal norm, not just by morality or any other norm. The
acceptance of the customary norm will be demonstrated by the change in conduct towards the
norm and by relying upon the customary norm to criticize the behaviour of others. Each
member of society is aware that its conduct may give rise to a norm of customary law. Yet, it
is not necessarily so that in the end there will be a new customary norm emerging. Everything
will depend on how others in the society react and whether they attach to the conduct a
conviction that this conduct is required by law. Hence, the individual consent of a member is
not relevant, what is relevant is the acceptance within society that societal interaction may
create customary norms, an acceptance that the members of society by participating in society
may “legislate” not only for other members, but also for themselves even if they did not have
the intention to legislate in the first place.1318

302. Unilateral acts can be defined as juridical acts performed by one author or a collectivity
of authors with the intention to create certain legal consequences, which are provided for by
the legal order.1319 Such unilateral acts and conventions have in common that they intend to

1316
Supra, No. 65.
1317
Supra, No. 64.
1318
See: P. ALLOT, “The Concept of International Law”, European Journal of International Law 1999, 38-39.
1319
E. SUY, Les actes juridiques unilatéraux, Paris, LGDJ, 1962, 44; E.P. NICOLOUDIS, La nullité de jus cogens
et le développement contemporain du droit international public, Athens, Papazissis, 18.

283
create certain rights or obligations and that both are a purposeful activity: their authors aim
and intend to create legal rights, obligations or situations. However, unilateral acts do not
depend on agreements or the consent of other actors to create legally binding rights,
obligations or situations. As has been made clear by the International Court of Justice in the
Nuclear Tests Cases, a declaration with the intent to be bound binds the State making the
declaration without any requirement of quid pro quo, subsequent acceptance or any other
reaction of other actors: the mere intention to be bound if made in public suffices to bind the
State making the declaration.1320 Of course, it may occur that a declaration is immediately
accepted by another State in the framework of negotiations, leading to the creation of a treaty
but this is not necessarily the case for all unilateral acts.1321 Furthermore, recognitions of a
situation or fact do not involve the acceptance of any other actor within the international
community. Even more, recognition might be against the acceptance of the relevant actor. For
instance, the recognition of a State which has been established in violation of the right to self-
determination or was the result of unlawful use of force, will not be consented to by the
legitimate government or by the State, the victim of the use of force.
Nevertheless, it can be argued that ordre public does not only operate in relation to
contractual undertakings, but extends to all juridical acts, whether unilateral or bilateral.1322
Although the argument certainly has merit, it cannot explain the invalidity of unilateral acts
from international organizations binding upon its members. The most obvious example is the
Security Council taking measures under Chapter VII of the Charter of the United Nations.
Such resolutions are more resembling instructions from one authority to another to implement
the measures contained in the resolutions or may even be legislative in nature.1323 Especially,
if such resolutions target individuals and their assets, they closely resemble the exercise of
public authority at the national level. Yet, such resolutions may be invalidated on the basis of
jus cogens, although it would be inopportune to base this invalidity on the international ordre
public character of jus cogens.

1320
Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, § 43; Nuclear Tests (New Zealand v.
France), Judgment, ICJ Rep. 1974, § 46.
1321
This occurred in the Eastern Greenland Case in which the declaration of the Norwegian Minister of Foreign
Affairs Ihlen that Norway would not oppose the plans of Denmark to obtain recognition of its sovereignty over
Greenland in the framework of negotiations concerning the sovereignty over Spitsbergen amounted to a
bilateral engagement: Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ Publ., Series
A/B, No. 53, 70-71.
1322
E. SUY, “New Normativity in the International Community? Discussion”, in A. CASSESE and J.H.H.
WEILER (eds.), Change and Stability in International Law-Making, Berlin, de Gruyter, 1988, 97; E. STRYDOM,
“Ius Cogens: Peremptory Norm or Totalitarian Instrument”, South Africa Yearbook of International Law 1988-
1989, 46; W. LEVI, “The International Ordre Public”, Revue de Droit International, de Sciences Diplomatiques
et Politiques 1994, 56; H. MOSLER, “The International Society as a Legal Community”, Recueil des Cours
1974-IV, 35
1323
Most Security Council Resolutions are containing specific and individualized obligations and could thus not
be considered as international legislation: K. SKUBISZEWSKI, “International Legislation”, in R. BERNHARDT et
al. (eds.), Encyclopedia of Public International Law, Vol. II, Amsterdam, Elsevier, 1995, 1260; however recent
resolutions on terrorism have been laying down general obligations for all States, not for a specific situation but
for terrorism as such: Security Council Resolution 1373 (2001); Security Council Resolution 1540 (2004). On
the legislative powers of the Security Council: A. MARSCHIK, “Legislative Powers of the Security Council”, in
R.St.J. MACDONALD and D.M. JOHNSTON (eds.), Towards World Constitutionalism, Issues in the Legal
Ordering of the World Community, Leiden, Nijhoff, 2005, 457 et seq.

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B. Jus cogens as the international ordre public and law-making treaties

303. Besides failing to explain the nature of the conflict between custom and unilateral acts
on the one hand and peremptory norms on the other, the analogy with ordre public does not
hold in case of law-making treaties. In international law treaties are not merely creating
bilateral, contractual rights and obligations, but also create law, so that the analogy of jus
cogens as an international ordre public is not helpful.1324 The distinction between treaty-
contracts (Vertrag) and law-making treaties (Vereinbarung) is not recent and can be traced to
TRIEPEL in the continental legal tradition and to OPPENHEIM in Anglo-Saxon doctrine,1325
although the conception of treaties as contracts remained predominant.1326 Treaty-contracts
were considered to constitute agreements on different and opposing ends,1327 or treaties made
for the realization of a specific juridical issue.1328 Law-making treaties were conventions
confirming, specifying or changing customary norms and creating new norms in a certain
field of international law or conventions concluded for realizing common goals.1329 MCNAIR
further divided law-making treaties in conventions creating constitutional international law –
treaties creating international organs and general rules or settling solemnly an important
political affair of certain countries –1330 and ordinary law-making treaties. According to him
and in furtherance of OPPENHEIM, treaties were considered to create law, because they had in
common with national law that they were created in a conscious, direct and purposeful
manner, in contrast to customary international law.1331 Thus, for the pioneers on law-making
treaties, it was not the nature of the rights and obligations contained therein which made a
treaty qualify as law-making, but the fact that they were consciously adopted to regulate
multilaterally a certain domain of international law. Hence, multilateral treaties which
consisted of a bundle of bilateral rights and obligations, such as multilateral extradition
treaties, from which parties inter se might derogate, regulating generally a certain topic of
international law fell under the category of law-making treaties.

304. In order to be truly law-making treaties must establish objective rights and obligations,
namely rights and obligations which cannot be reduced to bilateral undertakings in a

1324
P. WEIL, “Le droit international en quête de son identité: Cours général de droit international public”,
Recueil des Cours 1992-VI, 273.
1325
See: A.D. MCNAIR, “The Functions and Different Legal Character of Treaties”, British Yearbook of
International Law 1930, 105.
1326
Q. WRIGHT, “The Interpretation of Multilateral Treaties”, American Journal of International Law 1929, 98;
A.D. MCNAIR, “The Functions and Different Legal Character of Treaties”, British Yearbook of International
Law 1930, 106. See in particular: H. LAUTERPACHT, Private Law Sources and Analogies of International Law,
with Special Reference to International Arbitration, London, Longmans, 1927, 156.
1327
H. TRIEPEL, Völkerrecht und Landesrecht, Leipzig, Hirschfeld, 1899, 53; thus for TRIEPEL a bilateral treaty
in which the parties had the same goal, for instance a treaty for the division of water from a river, would
constitute a Vereinbarung.
1328
G. SCELLE, Le Pacte des Nations et sa liaison avec la traité de paix, Paris, s.n., 1919, 49.
1329
H. TRIEPEL, Völkerrecht und Landesrecht, Leipzig, Hirschfeld, 1899, 53; R. JENNINGS and A. WATTS,
Oppenheim’s International Law, Volume I, Peace, Introduction and Part 1, London, Longman, 1992, 32-33.
1330
Such treaties would create law of a certain sanctity and would have a large degree of permanence and would
be “transcending in kind and not merely in degree the ordinary agreements made by States”: A.D. MCNAIR,
“The Functions and Different Legal Character of Treaties”, British Yearbook of International Law 1930, 112.
1331
A.D. MCNAIR, “The Functions and Different Legal Character of Treaties”, British Yearbook of
International Law 1930, 115.

285
multilateral setting and which are thus not based upon reciprocity.1332 Instead, law making
treaties are reflecting a community interest in a fundamental value that cannot be put aside by
inter se agreements.1333 Such treaties will not protect the rights and interests of the parties, but
grant or impose them upon other actors or objects in the international community. The
primary examples of such treaties are human rights and humanitarian treaties, in which States
have undertaken to grant certain rights to individuals within their jurisdiction.1334 In its
classical dictum in its advisory opinion concerning Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, the International Court of Justice
indeed held that the Genocide Convention, which was adopted for humanitarian purposes,
cannot be construed as having laid down rights and obligations between the parties, but only
of a common interest of States to achieve the goals set out in the Convention.1335 Similarly,
human rights bodies and courts have confirmed the special nature of human rights
conventions: human rights conventions establish rights for individuals or collectivities of
individuals and not rights and obligations between the State parties.1336 Thus, by adopting
human rights conventions States have granted rights to individuals within their jurisdiction,

1332
C. DOMINICÉ, “The International Responsibility of States for Breach of Multilateral Obligations”, European
Journal of International Law 1999, 354-355; M. CRAVEN, “Legal Differentiation and the Concept of the Human
Rights Treaty in International Law”, European Journal of International Law 2000, 499; G. BARILE, “The
Protection of Human Rights in Article 60, Paragraph 5 of the Vienna Convention on the Law of Treaties”, in X.,
International Law at the Time of Its Codification, Essays in Honour of Roberto Ago, Vol. II, Milan, Giuffre,
1987, 11.
1333
B. SIMMA, “Bilateralism and Community Interests in the Law of State Responsibility”, in Y. DINSTEIN and
M. TABORY (eds.), International Law at a Time of Perplexity, Essays in Honour of Shabtai Rosenne, Dordrecht,
Nijhoff, 1989, 823; G. BARILE, “The Protection of Human Rights in Article 60, Paragraph 5 of the Vienna
Convention on the Law of Treaties”, in X., International Law at the Time of Its Codification, Essays in Honour
of Roberto Ago, Vol. II, Milan, 1987, 4.
1334
A. ORAKHELASHVILI, Peremptory Norms of International Law, Oxford, Oxford University Press, 2006, 85;
C. DOMINICÉ, “The International Responsibility of States for Breach of Multilateral Obligations”, European
Journal of International Law 1999, 355; R. PROVOST, “Reciprocity in Human Rigths and Humanitarian Law”,
British Yearbook of International Law 1994, 389 et seq.
1335
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Rep. 1950, 23. See also: Separate Opinion Judge WEERAMANTRY, Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia
and Montenegro)), Preliminary Objections, Judgment, ICJ Rep. 1996, 646.
1336
European Commission on Human Rights, Austria v. Italy, Application No. 788/60, Decision on the
Admissibility of the Application, 11 January 1961, Yearbook of the European Convention on Human Rights
1961, 140; Id., Cyprus v. Turkey, Application 8007/77, Decision on the Admissibility of the Application, 10
July 1978, Decisions and Reports, Vol. 13, 147, § 11; European Court on Human Rights, Ireland v. The United
Kingdom, Application no. 5310/71, Merits and Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25,
§ 239; Inter-American Court on Human Rights, The Effect of Reservations on the Entry Into Force of the
American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, 24 September 1982,
Series A, No. 2, § 29; Id., Ivcher Bronstein v. Peru, Competence, Judgment, 24 September 1999, Series C, No.
54, §§ 39-41; Id., Constitutional Court Case, Competence, Judgment, 24 September 1999, Series C, No. 55, §§
42-44; Human Rights Committee, General Comment No. 24, Issues relating to Reservations Made upon
Ratification or Accession to the Covenant or its Optional Protocols Thereto, or in Relation to Declarations
under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, § 17; however, the Comment was
precisely attacked on this point by the United Kingdom which referred to the dictum of the European Court on
Human Rights in Ireland v. United Kingdom that the European Convention was more than reciprocal
engagements and added that inter-State complaints procedure proved the reciprocal character of human rights
conventions: “Observations by the United Kingdom on General Comment No. 24”, Human Rights Law Journal
1995, 424.

286
regardless of their nationality and regardless whether other parties to such conventions live up
to their obligations. Equally, humanitarian law treaties protect persons during armed conflicts
and not the interests of the States parties and does not depend on the reciprocal respect of
State parties for the obligations contained in these conventions;1337 by concluding or acceding
to these conventions State parties have not only accepted obligations to other State parties but
also to themselves, namely by granting rights and conferring obligations upon persons in
armed conflicts;1338 furthermore, as with human rights treaties reprisals are generally not
permitted1339 nor can the treaty be terminated or suspended in response to a fundamental
breach.1340

1337
According to CRAVEN humanitarian treaties, unlike human rights treaties, are based on reciprocity since the
treaties do not apply to nationals of non-State parties: M. CRAVEN, “Legal Differentiation and the Concept of
the Human Rights Treaty in International Law”, European Journal of International Law 2000, 499. This is
indeed correct to a certain point: Common Article 2 Geneva Conventions requires that the non-party accepts
and applies the provisions of the Geneva Conventions. Nevertheless, States party to the Protocol (I) have to
guarantee the minimum rights of Article 75 of the Protocol to nationals of States which are not party to the
Geneva Conventions: Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Commentaire des Protocoles
additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949, Geneva, Nijhoff, 1986, No. 3022. The
distinction between a human rights treaty and a humanitarian treaty depends rather on the scope of application
than on the reciprocal character of the rights and obligations concerned: human rights have to be offered to
everyone within the jurisdiction of the State parties, which is not the case for humanitarian treaties.
Consequently, the protection of human rights does not depend on the nationality of the individual. Nonetheless,
at least between the parties to the humanitarian treaty the rights and obligations are equally offered to
individuals and are non-reciprocal. In any event, the protection of human rights offered to nationals of non-State
is not absolute since if State parties act outside their jurisdiction, the human rights convention will not be
applicable: European Court on Human Rights, Banković et al. v. Belgium et al., Application No. 52207/99,
Admissibility, Decision, 12 December 2001, Reports of Judgments and Decisions 2001-XII, §§ 79 et seq.
1338
Common Article 1 Geneva Conventions (1949): State parties must ensure respect for the Geneva
Conventions, which implies the taking of measure to ensure that other State parties fulfil their obligations: J.S.
PICTET, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in
the Field, Commentary, Geneva, ICRC, 1952, 26; Prosecutor v. Kupreskić et al., Case No. IT-95-16-T, Trial
Chamber, Judgment, 12 January 2000, §§ 518-519; Special Rapporteur FITZMAURICE, “Second Report on the
Law of Treaties, Yearbook of the International Law Commission 1957, Vol. II, 54.
1339
Article 46 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (1949); Article 47 Geneva Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 13 Geneva Convention (III)
Relative to the Treatment of Prisoners of War (1949); Article 33 Geneva Convention (IV) Relative to the
Protection of Civilian Persons in Time of War (1949); R. PROVOST, “Reciprocity in Human Rights Treaties and
Humanitarian Law”, British Yearbook of International Law 1994, 414 and 434 et seq.; for instance, if
combatants do not respect the laws and customs of war, they will in some cases lose their rights attached to
combatant status, but this does not absolve the other belligerents from respecting the laws and customs of war:
R. PROVOST, “Reciprocity in Human Rights Treaties and Humanitarian Law”, British Yearbook of International
Law 1994, 394. PROVOST is however of the opinion that the Protocol (I) has introduced reciprocity for all
combatants by requiring that armed forces have to comply with rules of international humanitarian law: Ibid.;
however even if this would be correct, it would only lead to the loss of combatants status for the armed forces of
one of the parties to the conflict, but that party still has to respect the rights of combatants of other belligerents
if they respect international humanitarian law. In any event, such combatants would still enjoy the protection of
Geneva Convention (IV), even if other belligerents would refuse to accord that protection: see for the protection
of unlawful combatants as civilians: Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber,
Judgment, 16 November 1998, § 271; O. UHLER and H. COURSIER, Geneva Convention relative to the
Protection of Civilian Persons in Time of War, Commentary, Geneva, ICRC, 1958, 51; M. SASSÒLI, “The Status
of Persons Held in Guantánamo under International Humanitarian Law”, Journal of International Criminal
Justice 2004, 101; M. SASSÒLI, “Use and Abuse of the Laws of War in the ‘War on Terrorism’”, Law and

287
305. Of course, States have to become a party to these conventions. Yet, this does not entail
that these conventions have only created rights and duties between the State parties. By
becoming party to these conventions States have taken upon themselves to grant individuals
or groups of individuals certain rights (and obligations); from the perspective from the
individual or groups of individuals States have awarded them certain rights and imposed
certain obligations, which they can invoke against the State and for which they can be held
accountable by the State. Consequently, mutual consent does not necessarily imply
reciprocity, in the sense of a reciprocal exchange of benefits.1341 A sociological reciprocity,
although often present, is not a necessary requirement for a treaty. Rather a treaty is legal
process in which States or international organizations create law by consenting towards other
States or international organizations to uphold certain rights and obligations, whether owed to
the other parties or to third actors or objects; in the latter case the only form of “reciprocity”
is that by agreeing to give rights or impose obligations upon third actors, the State or
international organization recognizes other parties as relevant authorities with a legal interest
to demand performance of the rights and obligations contained in the convention, if it fails to
secure them towards the third actor, and that it in turn has a legal interest in claiming
performance by other parties.1342 Nonetheless, the enforcing of rights of individuals through
other parties is not indicative that human rights conventions or humanitarian law conventions
are after all only legal undertakings between States. The granting of rights or the imposing of
obligations is analytically distinct from having a legal interest in ensuring compliance with
these rights and obligations: having a right does not necessarily entail that one has the power
to enforce it, since a legal system may attribute the enforcement of rights to a certain
institution. In any event, human rights treaties and humanitarian law conventions do not only
permit the State whose nationals are affected to enforce the rights or obligations, but each and
every State may request respect for the rights and obligations, thereby demonstrating that the
rights and obligations are not owed to an individual party, but are assumed by all parties in
favour of individuals.1343 Therefore, if States act, it is not for the purpose of safeguarding their

Inequality 2004, 207-208; E. CHLOPAK, “Dealing with the Detainees at Guantanamo Bay: Humanitarian and
Human Rights Obligations under the Geneva Conventions”, Human Rights Brief 2002, 7.
1340
Article 60 (5) Vienna Convention on the Law of Treaties (1969); M. CRAVEN, “Legal Differentiation and
the Concept of the Human Rights Treaty in International Law”, European Journal of International Law 2000,
494; G. BARILE, “The Protection of Human Rights in Article 60, Paragraph 5 of the Vienna Convention on the
Law of Treaties”, in International Law at the Time of Its Codification, Essays in Honour of Roberto Ago, Vol.
II, Milan, Giuffre, 1987, 3; R. PROVOST, “Reciprocity in Human Rights Treaties and Humanitarian Law”,
British Yearbook of International Law 1994, 402-404.
1341
M. CRAVEN, “Legal Differentiation and the Concept of the Human Rights Treaty in International Law”,
European Journal of International Law 2000, 501-502; B. SIMMA, “From Bilateralism to Community Interest”,
Recueil des Cours 1994-IV, 369.
1342
Special Rapporteur FITZMAURICE, “Fourth Report on the Law of Treaties”, Yearbook of the International
Law Commission 1959, Vol. II, 42 and 54; B. SIMMA, “From Bilateralism to Community Interest”, Recueil des
Cours 1994-IV, 370; M. CRAVEN, “Legal Differentiation and the Concept of the Human Rights Treaty in
International Law”, European Journal of International Law 2000, 511-512. See also the dictum in South West
Africa (Ethiopia and Liberia v. South Africa), Second Phase, Judgment, ICJ Rep. 1966, § 44; Barcelona
Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Rep. 1970, §§
33-34. European Court on Human Rights, Ireland v. The United Kingdom, Application no. 5310/71, Merits and
Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25, 239.
1343
C. DOMINICÉ, “The International Responsibility of States for Breach of Multilateral Obligations”, European
Journal of International Law 1999, 355; G. BARILE, “The Protection of Human Rights in Article 60, Paragraph

288
own rights, but to guarantee the rights of human beings living in the community set up by the
treaty, a community based upon the values enshrined in the law-making treaty. If the rights of
the individual or collectivities are universally accepted, States would act in name of the
international community.1344

306. Given the nature of human rights and humanitarian treaties as law-making treaties, what
is the nature of derogatory conventions? They are equally law-making treaties, albeit created
by a restricted group of the parties to the original convention. The parties to the derogatory
treaty either grant more rights to or impose more obligations upon individuals or collectivities
or either restrict their rights or limit their obligations. Nevertheless, the derogatory convention
will not create rights and obligations between the parties, in the same manner as the original
convention does not establish rights and obligations between the parties. The parties to the
derogatory treaty will only have a legal interest in upholding the treaty norms in case of
breach by one of the parties. For instance, a group of States has consented in a treaty to
respect within their jurisdiction the right of life of individuals, in particular they will not
impose the death penalty in peacetime, while retaining the possibility to execute persons in
wartime if they have committed treason. A number of States however positively derogates
from the norm by adopting a protocol in which they abolish the death penalty in all
circumstances. By this they do not create rights and obligations as between themselves, but
extend the right to life granted to individuals within their jurisdiction. The protocol is hence a
law-making treaty in the sense defined above. Other States, however, adopt a new convention
in which they also impose the death penalty for serious crimes committed in peace time; they
negatively derogate from the norm and thereby restrict the right to life of individuals within
their jurisdiction, but do not create rights and obligations between the parties. Thus, such a
convention is also lawmaking. However, if the original norm – the death penalty may not be
applied in peacetime, but it is permitted to impose it in wartime – is a peremptory norm then
the second treaty would be invalid because of inconsistency with a norm of jus cogens.
Applying the analogy of ordre public invalidating contracts is in such instance not evident
since there are no synallagmatic rights and obligations between the parties, nor can the treaty
be considered as a unilateral contract. In fact, it is genuinely a piece of law-making at the
international level and laws are not annulled because they violate the ordre public. Therefore,
in such case the law-making powers of the States are limited and hence their sovereignty;1345
and the limitation of the law-making power of sovereign entities points to a role for jus
cogens that more resembles that of national constitutions.1346

§3. Conclusion

307. Jus cogens can be regarded as performing the role of ordre public at the international
level. It has been demonstrated that international law contains this legal concept through the

5 of the Vienna Convention on the Law of Treaties”, in X., International Law at the Time of Its Codification,
Essays in Honour of Roberto Ago, Vol. II, Milan, Giuffre, 1987, 4-5
1344
R. PROVOST, “Reciprocity in Human Rights and Humanitarian Law”, British Yearbook of International Law
1994, 386 and 431.
1345
D. COLARD, “Premières réflexions sur le ‘Traité des Traités’: La Convention de Vienne du 23 mai 1969”,
Journal de Droit International 1970, 278.
1346
S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker & Humblot, 1992, 104.

289
source of general principles of law. The notion of ordre public is present in different national
legal systems and it can be transposed to the international level, though not without
modification. Furthermore, there is support that each and every legal system requires the
concept of ordre public to be present. Hence, it is undeniable that this concept is part of
international law as a general principle of law. The concept of jus cogens would then be an
individuation of this principle in the law of treaties. Moreover, regarding jus cogens as the
ordre public of international law helps to explain the non-severability of treaty clauses that
conflict with jus cogens and the format of the dispute settlement procedure of the Vienna
Convention on the Law of Treaties. However, jus cogens as the international ordre public
cannot explain the invalidity of customary law, unilateral acts and law-making treaties that
derogate from peremptory norms. It thereby fails to explain one of the essential characteristics
of jus cogens. Furthermore, in case of derogation by custom, unilateral acts and law-making
treaties, it might be better to regard peremptory norms as constitutional norms since they limit
the law-making powers of States similar to the limitation of State powers at the national level
by national constitutions. In addition, it will be hard to reconcile ordre public with obligations
erga omnes and the specific duties on each State in case of serious violations of peremptory
norms.

308. Jus cogens can be looked at through two lenses: for treaties establishing reciprocal
relations between States it functions as the ordre public of the international society; for law-
making treaties, custom and unilateral acts it more resembles the constitutional norms of the
international community. Nevertheless, regarding jus cogens as the constitutional norms of
the international community does not have to conflict with jus cogens as the international
ordre public for treaties that are more similar to contracts. As the examination of gute Sitten
in Germany has brought to light,1347 constitutional norms may also be operational as norms of
ordre public. Thus, if peremptory norms are considered to perform as constitutional norms at
the international level, this point of view can explain why custom, unilateral acts, law-making
treaties on the one hand and treaty-contracts on the other hand are all void. The former are
invalid because as the result of international law-making they directly infringe upon
constitutional norms; the latter are void because they indirectly through the concept of ordre
public as a general principle of law, conflict with the same constitutional norms. However,
this reasoning implies that international law can have constitutional norms, a position that still
needs to be demonstrated and to which I now turn.

SECTION.3. JUS COGENS NORMS AS THE CONSTITUTIONAL LAW OF THE INTERNATIONAL

COMMUNITY

§1. Introduction

309. In this section the analogy of jus cogens with constitutional law will be scrutinized as
an alternative to jus cogens as the ordre public of international law. Of course, every analogy
of an international concept with national law is partially flawed due to the different
environment in which the international and national system operates. Whether one opts for jus
cogens as the international ordre public or constitutional norms, one has to be cautious with

1347
Supra, No. 292.

290
inserting domestic law concepts in international law. Nevertheless, it is submitted that the
perspective of jus cogens as the constitutional norms of the international community will
more fit the notion and its consequences. In a first section, the differences between
constitution, constitutionalism and constitutionalization will be explained. In the second
section, some of the criticisms advanced against constitutionalism in international law will be
outlined and replied to. In a third section, it will be demonstrated that jus cogens can be
viewed as the collection of constitutional norms of the international community and that this
will have repercussion for the identification of peremptory norms and for the solution to cases
where two or more norms of jus cogens conflict with each other.

§2. Constitution, constitutionalism and constitutionalization

310. In the recent decades the concepts of constitution, constitutionalism and

constitutionalization have been increasingly used in the field of international law, though not
always with clarity. Therefore, it will be set out what we understand under these notions and
how they play a role in the international society.

311. The term of constitution is the most familiar, but its exact meaning is debated. A
constitution can be “thick”, meaning a written constitution created after a constitutional
moment containing provisions on how to make laws, on membership of the community,
restrictions on government powers by granting citizens inalienable rights, constitutional
judicial review and provisions to amend the constitution.1348 A constitution in the thin sense
contains merely the most important legal norms that regulate a polity, in particular how
political power is organized and how law is made within the polity.1349 This could be
extrapolated to the international level, where the constitution would contain the fundamental
rules on how and by whom law is made and the limits to law-making.1350 Consequently, it can

1348
See: D.M. JOHNSON, “World Constitutionalism in the Theory of International Law”, in R.St.J. MACDONALD
and D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World
Community, Leiden, Nijhoff, 2005, 17-18.
1349
A. PETERS, “Compensatory Constitutionalism: The Function and Potential of Fundamental International
Norms and Structures”, Leiden Journal of International Law 2006, 581; B.-O. BRYDE, “International
Democratic Constitutionalism”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards World
Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 105; B.
FASSBENDER, “The Meaning of International Constitutional Law”, in R.St.J. MACDONALD and D.M. JOHNSON
(eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden,
Nijhoff, 2005, 838.
1350
A. PETERS and K. ARMINGEON, “Introduction – Global Constitutionalism from an Interdisciplinary
Perspective”, Indiana Journal of Global Legal Studies 2009, 387; E. DE WET, “The Emergence of International
and Regional Value Systems as a Manifestation of the Emerging International Constitutional Order”, Leiden
Journal of International Law 2006, 612; T. COTTIER and M. HERTIG, “The Prospects of 21st Century
Constitutionalism”, Max Planck Yearbook of United Nations Law 2003, 280; T. GIEGERICH, “The Is and the
Ought of International Constitutionalism: How Far Have We Come on Habermas’s Road to a ‘Well-Considered
Constitutionalization of International Law’?”, German Law Journal 2009, 42; B.-O. BRYDE, “International
Democratic Constitutionalism”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards World
Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 106; A. VON
BOGDANDY, “Constitutionalism in International Law: Comment on a Proposal from Germany”, Harvard
International Law Journal 2006, 226; FISCHER-LESCANO and TEUBNER consider the typical elements of any
constitution to be “provisions on the establishment and exercise of decision-making on the one hand

291
be said that international law has a constitution in this sense, since law-making is primarily
done by sovereign equal States through custom and treaties. Nonetheless, international law is
significantly different than national legal systems and the transposition of the idea of
constitution may well not work. At the very least it should reflect the realities of the
international legal system. Thus, it is unlikely that in a decentralized legal order there will be
one constitutional document that has emerged after a constitutional moment.1351 Rather,
constitutional law at the international level will be a bundle of norms, written and unwritten,
that have their importance in common, created by evolutionary processes instead of by
revolution.

312. Constitutionalism refers in general to a political and intellectual movement that regards
having a liberal constitution, democracy, and separation of powers as the best mode of
governance. Not every constitution or the rule of law suffices: one has to adopt a certain type
of constitution, a legitimate constitution.1352 In the thesis a weaker form of constitutionalism
will be defended, one that is more suitable to the international level. Constitutionalism will be
a mindset, a perspective and a lens to observe international law with,1353 to identify
constitutionalist traits in the international legal order and to defend the adoption of such a
perspective in the belief that it will make international law more effective and legitimate.1354
Constitutionalism as a mindset opposes other mindsets, in particular the managerial
mindset,1355 the mindset of hegemony, and a mindset that international law is solely based on
the consent of sovereign States and on State interests. Constitutionalism in the international
legal order stresses the importance of the rule of law, human rights, the importance of other

(organizational and procedural rules), the definition of individual freedoms and societal autonomies on the other
hand.”: A. FISCHER-LESCANO and G. TEUBNER, “Regime Collisions: The Vain Search for Legal Unity in the
Fragmentation of Global Law”, Michigan Journal of International Law 2003-2004, 1016. See also: A. FISCHER-
LESCANO, “Globalverfassung, Verfassung der Weltgesellschaft”, Archiv für Rechts- und Socialphilosophie
2002, 349; S. GARDBAUM, “Human Rights as International Constitutional Rights”, European Journal of
International Law 2008, 752; V. BORE EVENO, “Le contrôle juridictionnel des résolutions du Conseil de
Sécurité”, Revue Générale de Droit International Public 2006, 828.
1351
But see: B. FASSBENDER, “The United Nations Charter as a Constitution of the International Community”,
Columbia Journal of International Law 1998, 573 et seq.
1352
A. PETERS and K. ARMINGEON, “Introduction – Global Constitutionalism from an Interdisciplinary
Perspective”, Indiana Journal of Global Legal Studies 2009, 388-389; K. MILEWICZ, “Emerging Patterns of
Global Constitutionalization: Towards a Conceptual Framework”, Indiana Journal of Global Legal Studies
2009, 419-420; E.-U. PETERSMANN, “How to Reform the UN-System? Constitutionalism, International Law,
and International Organizations”, Leiden Journal of International Law 1997, 422; A. PETERS, “Compensatory
Constitutionalism: The Function and Potential of Fundamental International Norms and Structures”, Leiden
Journal of International Law 2006, 582; T. GIEGERICH, “The Is and the Ought of International
Constitutionalism: How Far Have We Come on Habermas’s Road to a ‘Well-Considered Constitutionalization
of International Law’?”, German Law Journal 2009, 44-45.
1353
J.H.H. WEILER, “The Reformation of European Constitutionalism”, Journal of Common Market Studies
1997, 99.
1354
A. PETERS and K. ARMINGEON, “Introduction – Global Constitutionalism from an Interdisciplinary
Perspective”, Indiana Journal of Global Legal Studies 2009, 388-389; A. PETERS, “The Merits of Global
Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 397; S. KADELBACH and T. KLEINLEIN,
“International Law – A Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of
Constitutional Principles”, German Yearbook of International Law 2007, 306-307.
1355
See: M. KOSKENNIEMI, “Constitutionalism as a Mindset: Reflections on Kantian Themes about International
Law and Globalization”, Theoretical Inquiries in Law 2007, 9.

292
actors than the State, and community interests.1356 It departs from the view that the
international level is governed by power politics, but instead is a legal community, where
power is ultimately governed by law,1357 and where rules have to fulfil certain criteria in order
to be deemed legal. Furthermore, international law is not there to satisfy the interests of
sovereign States, but to achieve the goals of humanity as a whole, 1358 organized in the
international community, with an emphasis on interdependence, shared responsibility and
cooperation.1359 Thus, although States may be the immediate members, they are not the
ultimate members of the international community. Consequently, State sovereignty, the idea
that the independence of States is the ultimate value, should become supplemented by other
values, such as human dignity.1360
From the foregoing it is clear that international constitutionalism is not a neutral
standpoint. It has a descriptive and prescriptive component. On the one hand it has to link up
with existing international law by identifying which legal phenomena can be regarded as
constitutional. On the other hand international constitutionalism is not content with the
existing system, but argues for improvements in a certain direction, a constitutional
direction.1361 Hence, a constitutionalism that emphasizes jus cogens as the constitutional
norms of the international community must firstly demonstrate that jus cogens has certain
characteristics allowing it to be qualified as constitutional norms. Secondly, it has to set out
what makes this constitutionalism specific and how it will likely shape international law in the
future.

313. Finally, the term constitutionalization entails the emergence of constitutional norms in
the international legal order and its sub-regimes and for the spreading of constitutionalism as
an intellectual and political prism.1362 It emphasizes that constitutional norms are the result of
processes going on in the international legal system at large.1363 Due to the decentralized and
fragmented nature of the international legal order, they do not emerge centrally through one
procedure and sub-regimes can have their own constitutional norms and processes to create

1356
A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 398-
399.
1357
A. PETERS, “Compensatory Constitutionalism: The Function and Potential of Fundamental Norms and
Structures”, Leiden Journal of International Law 2006, 586; A. PETERS, “Global Constitutionalism Revisited”,
International Legal Theory 2005, 49; V. BORE EVENO, “Le contrôle juridictionnel des résolutions du Conseil de
Sécurité”, Revue Générale de Droit International Public 2006, 828.
1358
See: C. TOMUSCHAT, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century”,
281 Recueil des Cours 1999, 9.
1359
T. COTTIER and M. HERTIG, “The Prospects of 21st Century Constitutionalism”, Max Planck Yearbook of
United Nations Law 2003, 270-271.
1360
A. PETERS, “Compensatory Constitutionalism: The Function and Potential of Fundamental Norms and
Structures”, Leiden Journal of International Law 2006, 586; B.-O. BRYDE, “International Democratic
Constitutionalism”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards World Constitutionalism,
Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 107.
1361
A. PETERS and K. ARMINGEON, “Introduction – Global Constitutionalism from an Interdisciplinary
Perspective”, Indiana Journal of Global Legal Studies 2009, 389; T. COTTIER and M. HERTIG, “The Prospects
of 21st Century Constitutionalism”, Max Planck Yearbook of United Nations Law 2003, 272.
1362
Ibid., 389; T. GIEGERICH, “The Is and the Ought of International Constitutionalism: How Far Have We
Come on Habermas’s Road to a ‘Well-Considered Constitutionalization of International Law’?”, German Law
Journal 2009, 31.
1363
A. PETERS, “Compensatory Constitutionalism: The Function and Potential of Fundamental International
Norms and Structures”, Leiden Journal of International Law 2006, 582.

293
them. In our view it is not correct to consider only one type of norms as constitutional norms
to the exclusion of other norms and processes and formats of constitutionalization. Hence, a
sub-regime might have its own constitutional norms and its own form of constitutionalization
which differs from the global level where peremptory norms are formed. Furthermore, a
regional group of States may consider additional norms to have constitutional status within
the region.1364 The only requirement is that constitutional norms of the sub-regimes or of the
regional group respect the peremptory norms. This does not deny the constitutional character
of these norms. Rather, the situation is analogous to federal States where the federal
constitution enjoys priority over the constitution of the federated entities. Yet, this does not
detract from the constitutional status of the highest norms at the federated level. Thus,
constitutionalization at the international level may come in different shades and forms and
given the existing fragmentation of international law in various sub-regimes it will be
necessarily multifaceted.

§3. Criticism on constitutionalism

314. In order to be meaningful constitutionalism and the constitutionalization it defends

should be able to withstand criticism. If the theory is intrinsically flawed in that it cannot give
an adequate response to criticism, then there is no need to look for constitutional norms at the
international level.1365 In this section it will be examined how constitutionalism responds to
the challenge of legitimacy, the fragmentation of international law and hegemony, the absence
of political will to formally declare that international law has a constitution, the denial of
politics that constitutionalism allegedly defends and the challenge that constitutionalism is a
European-centric and anti-pluralist project.

A. Problems of legitimacy

315. A first argument against constitutionalism is that it builds upon the language of
constitutionalism and the concept of constitution to give international law a legitimacy it does
not have. By maintaining that international law has a constitution, the international legal order
benefits from the positive connotations attached to the notion of a constitution. Related to that
is the idea that a constitution obtains its legitimacy from a revolutionary act by the people,
that have established their own political community through and by the national constitution.
A constitution is established and owned by the people through physical sacrifice that becomes

1364
See: E. DE WET, “The International Constitutional Order”, International and Comparative Law Quarterly
2006, 53; E. DE WET, “The Emergence of International and Regional Value Systems as a Manifestation of the
Emerging International Constitutional Order”, Leiden Journal of International Law 2006, 612-613.
1365
In the thesis I will not discuss the points of view of TEUBNER and FISCHER-LESCANO that the global
constitution cannot be regarded as a unified whole, but rather consists of different constitutions varying from
field to field, often autopoetically created through the interaction of all the actors: A. FISCHER-LESCANO and G.
TEUBNER, “Regime Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law”,
Michigan Journal of International Law 2003-2004, 999 et seq.; The thesis has not the aim to create a global
constitution that would apply to all transnational law, but only develop the constitutional norms of the
international legal system, which is only a subsystem of transnational law, one of the legal “tools” available to
deal with a transnational activity. It does thus not pronounce on constitutional developments in other areas of
law and how those developments are realized.

294
engrafted in the national constitution.1366 International law misses this “symbolic-aesthetic
dimension”, and thus any constitution at the international level would miss the necessary
legitimacy.1367 Hence, a constitution can only be found at the State level, which is the level
where people have established their political community.

316. PETERS is however correct in her reply that constitutionalism at the international level is
not necessarily used to bestow legitimacy to international law.1368 Indeed, if constitutionalism
is considered a mindset and a perspective it precisely stresses that although some
constitutionalist traits may already be present in international law, the question of legitimacy
of the international legal order is never completely answered. Constitutionalism emphasizes
precisely that the justice of the international legal system must be scrutinized at all times.
Similarly, constitutionalism at the international level does not imply democratic governance.
At the national level constitutionalism favours a democratic government making such a
government just and legitimate. However, at the international level constitutionalism is not
used to give international law democratic credentials it does not have. Democracy implies the
governance by the people on the basis of one person, one vote, while at the same time
respecting the inalienable rights of the citizens. Contemporary international law does not have
this feature nor will it seem to have this feature in the near future, despite its merits. Instead
international law will have to find other mechanisms of legitimacy, for instance its
inclusiveness of different nations and cultures, or the content of the constitutional norms.

317. Concerning the need for “symbolic-aesthetic dimension” of the constitution, this
mystifies the State constitution and ignores that constitutions may be the result of an ongoing
evolution instead of the product of a bloody revolution.1369 In any event the constitution is
constantly evolving to address new societal problems that may divide society, but do not
necessarily involve physical sacrifice. A constitution is not only a historic document made
after a revolution, but a contemporary means to structure politics. Moreover, why should
today’s politics be structured on the physical sacrifice of persons of the past to which there is
no connection and whose ideas may not be shared today? It thus fails to explain why citizens
today believe the constitution to be legitimate. The answer is more likely that citizens deem
the values in the constitution to bring justice in society, rather than that they remember the
physical sacrifice of the founders of the constitution. Such a symbolic-aesthetic dimension of
the constitution might result in a stronger legitimacy and loyalty to the constitution, but it can
be doubted it is a necessary requirement to have a constitution. Having a thick community
centred on the remembrance of a historical sacrifice that has been translated in a sacral text
might undoubtedly lead to a society governed by a constitution. Furthermore, such a society

1366
U. HALTERN, “Internationales Verfassungsrecht? Anmerkungen zu einer kopernikanischen Wende”, Archiv
des öffentliches Recht 2003, 533-535.
1367
B.-O. BRYDE, “International Democratic Constitutionalism”, in R.St.J. MACDONALD and D.M. JOHNSON
(eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden,
Nijhoff, 2005, 104; A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal
Studies 2009, 400; U. HALTERN, “Internationales Verfassungsrecht? Anmerkungen zu einer kopernikanischen
Wende”, Archiv des öffentliches Recht 2003, 525.
1368
A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 400.
1369
B.-O. BRYDE, “International Democratic Constitutionalism”, in R.St.J. MACDONALD and D.M. JOHNSON
(eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden,
Nijhoff, 2005, 105.

295
might only exist in States. Nevertheless, the pre-existence of such a community is not
required to have a constitution, especially in modern multicultural societies. Rather, it will be
the legal system and the constitution it has that will create the community: despite all the
differences in a society, the values enshrined and enforced in the constitution is what is
common, because they result from the inclusion of everyone in the constitutional-making
process and not the sacrifice a society had to make in the past. If in such a national society it
is possible to have a constitution, it is equally possible to have a constitution at the
international level.

B. The problems of fragmentation and hegemony

318. Another criticism is that constitutionalism typically assumes a unity at the international
level, which is doubtful considering the fragmentation of international law and the hegemony
of the United States at the international level. In addition the contention that unity can be
created through constitutionalism invites questions of self-awarded legitimacy and reduction
of diversity.1370 It is indeed correct to point out that the international system has fragmented
and that specialized regimes have been created. Nonetheless, international law does have
techniques to limit and reduce the problems resulting from fragmentation. In addition,
specialized regimes do consider themselves still embedded in international law. Furthermore,
some norms are universally accepted: all States have become member of the United Nations
or want to become member, the four Geneva Conventions have been universally ratified, the
Convention on the Rights of the Child has a near universal acceptance, and human rights
treaties are widely ratified. The concept of jus cogens is itself part of customary international
law as is Article 31 (3)(c) Vienna Convention on the Law of Treaties. Thus, States have
accepted that international law contains certain core principles and that fragmentation can be
countered by generally accepted mechanisms. In any event, it can be questioned whether the
fragmentation of international law and the risks thereof are universally shared,1371 or that the
risks are not overstated.1372 While one cannot be blind for fragmentation, one should also not
close their eyes for mechanisms that promote unity.

319. A second challenge to constitutionalism is hegemony or the cultural, economic and

military dominance of a superpower. The existence of a superpower that has significant
influence in the formation and application of international law is not as such a danger to a
constitution, as long as the superpower claims no exceptional status within the law that is
disproportionate with its responsibilities or as long as it does not claim to be outside the law.
If this would however be the case, a superpower would rely ultimately on its own power than
on the international legal system in order to realize its interests or to forward its perceived

1370
C.E.J. SCHWÖBEL, “Organic Global Constitutionalism”, Leiden Journal of International Law 2010, 534-
535; M. KOSKENNIEMI, “The Fate of Public International Law: Between Technique and Politics”, Modern Law
Review 2007, 19.
1371
See: R.A. KOLODKIN, “Fragmentation of International Law? A View from Russia”, in R.St.J. MACDONALD
and D.M. JOHNSTON (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World
Community, Leiden, Nijhoff, 2005, 223 et seq.
1372
A. PETERS, “Compensatory Constitutionalism: The Function and Potential of Fundamental International
Norms and Structures”, Leiden Journal of International Law 2006, 602-603.

296
community interests. Hence, hegemony is the antithesis of constitutionalism.1373 Yet, it may
not be forgotten that constitutionalism is also a political project, as is hegemony.1374 Although
the constitutionalism that is defended in the thesis is based on existing concepts in
international law, which are accepted by all States, the choice to interpret them in a
constitutional light is not a purely legal decision. In addition, constitutionalism is not limited
to identifying trends of constitutionalization, but equally looks into the legitimacy of the
constitutional processes, provides criticism on constitutionalization, and proposes changes for
the future. Therefore, since constitutionalism and hegemony involve two political projects, in
order to become a viable alternative to hegemony, any constitutionalist project must
ultimately convince that it is more meritorious than governance by a hegemon. In this respect
constitutionalism has some strengths. It stresses the rule of law creating stable expectations on
the basis of norms, instead of being governed by the potentially fickle exercise of power by a
hegemon. It also includes a promise of justice, by advancing legitimate values and by creating
processes for debate on which values should govern international relations. A hegemon does
not necessarily advance values shared by the international community, but probably its values
or its interpretation of community values. In addition, it is unlikely to take into consideration
the interests and the values of the rest of the international community.

C. Absence of political will

320. Another critique on constitutionalism originates from realism. States have not accepted
the existence of constitutional norms. Rather, the international level is characterized by a
struggle between States that are only concerned with their national interest. Thus, considering
that the international legal order has a constitution or is constitutionalizing is too idealistic.
Furthermore, it is correct that constitutionalism is an academic venture, which is not shared by
political actors. 1375

321. This criticism is valid in so far that a constitution is not yet explicitly recognized at the
international level. States have not proclaimed any norm to have constitutional value or have
recognized that international law has a constitution. Nonetheless, constitutionalists are aware
that States have not explicitly accepted a constitution. Constitutionalism is rather looking to
explain evolutions in the international legal system through a particular framework. The main
purpose is not to prove that international law has already a constitution, but that certain
evolutions can be construed as a process of constitutionalization or that some norms can be
construed as constitutional norms. Thus, it might well be that implicitly certain norms fulfil
constitutional functions without the international society realizing that it has a constitution.1376
Nonetheless, PETERS rightly warns against “academic pipe dreams”.1377 Therefore, I opt to

1373
R. COLLINS, “Constitutionalism as Liberal-Juridical Consciousness: Echoes from International Law’s Past”,
Leiden Journal of International Law 2009, 252; according to COLLINS both are the different sides of the same
coin: how to make sense of liberal politics: Ibid. 279-280.
1374
Or even a hegemonic project: M. KOSKENNIEMI, “International Law in Europe: Between Tradition and
Renewal”, European Journal of International Law 2005, 118.
1375
A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 401.
1376
In this respect: P. ALLOT, Eunomia, New Order for a New World, Oxford, Oxford University Press, 1990,
418.
1377
A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 402.

297
discuss constitutionalism in the framework for an existing mechanism of international law
that is broadly accepted, but give it a constitutionalist interpretation. Hence, the thesis will be
a middle ground between existing law, as accepted by States, and an idealistic, but meaningful
interpretation of the law. For the remainder, the realist critique can be replied to by pointing
out that constitutionalism may in the long run benefit national interests, especially if
constitutionalism is open to input from States. For instance, constitutionalization is argued to
occur in the WTO due to the dispute settlement mechanism.1378 Since States have accepted the
dispute settlement mechanism, they have deemed it in their national interest to have a dispute
settlement mechanism for trade disputes and the accompanying constitutionalization over
trade wars. Thus, constitutionalism is not necessarily antithetical to State interests, but it does
transcend the mere satisfaction of national interests. Constitutionalism is based on the
Kantian idea of autonomy and self-determination: an individual and by extension States are
only free if they can choose in accordance with their own will and not if they are compelled to
satisfy their desires. To be free entails that one is able to set aside one’s self-interests and to
make decisions according to what one thinks is right. Consequently, law cannot be considered
as behavioural regularities of rational and egoistical actors, but instead as the expression of
the self-determining will of a community.1379 In this respect, constitutional law is a specific
manifestation of autonomy and self-determination: it is the expression of the will of a
particular community to bind public authorities in such a way that the freedom of the
members of the community is guaranteed. Hence, constitutional law at the international level
places limits upon the power of States (and international organizations) so that the members
of the international community, including States and international organizations, can be truly
free without fear of undue interference, even if this would go against the immediate self-
interest of some or all of the members of the community.

D. The denial of politics

322. Another objection to constitutionalism is that it pretends to surpass politics.1380 By

introducing a constitutionalist agenda in international law the impact of politics will be
minimized and the end to politics is promised,1381 although having constitutional norms and
processes is in itself a political choice. It is not the purpose of constitutionalism to end politics
and install a rigid legal system to govern the international order. On the contrary, there is a
close link between politics and constitutional law. The norms that are considered
constitutional will be the result of a political decision, yet once the political decision taken
those norms will be set above daily politics. Nonetheless, the impression that
constitutionalism is focused on creating a legal regime beyond politics may have been caused
by the fact that international courts are at the vanguard of constitutionalism at the

1378
See: D.Z. CASS, “The ‘Constitutionalization’ of International Trade Law: Judicial Norm-Generation as the
Engine of Constitutional Development in International Trade”, European Journal of International Law 2001, 39
et seq.
1379
M. KOSKENNIEMI, “Constitutionalism as Mindset: Reflections on Kantian Themes about International Law
and Globalization”, Theoretical Inquiries in Law 2007, 23-25.
1380
A. PETERS,”The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 407;
J.P. TRACHTMAN, “The Constitutions of the WTO”, European Journal of International Law 2006, 623. See
also: M. KOSKENNIEMI, “The Politics of International Law”, European Journal of International Law 1990, 5.
1381
A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 407.

298
international level.1382 However, constitutionalism is not limited to courts, even not at the
national level, where not all countries have enforceable constitutions. Constitutionalism
should look at the broad spectrum of constitutional practice, not only before courts (which
still have a limited impact at the international level), but in daily politics and in law-making.
Only then will all the aspects of constitutionalization become clear. Thus, having
constitutional norms and opting for constitutionalization is a political decision, in particular a
political decision to set certain norms above ordinary politics (but not constitutional politics)
and the constitution is not only applied by courts, but equally by political actors, such as
States.

E. Constitutionalism as a European, anti-pluralist project

323. Another criticism of constitutionalism is that it is a European-centred project.1383 It is

indeed correct that it is mainly European scholars that are moving the debate forward, but it is
not only European scholars that shoulder a constitutionalist approach to international law.1384
Furthermore, other countries and regions also have experiences with constitutionalism so that
it is not solely a Western perspective.1385 In addition, constitutionalism at the international
level does not claim that there is solely one form of constitutionalism, rather there are
different projects and perspectives that have a certain feature in common.1386
Constitutionalization in Europe might be peculiar and there is no need that other regions have
a similar view on constitutionalism. In addition, if constitutionalism is inclusive and takes on
board the interests of the developing world its origins are unimportant. Moreover, even if it
would be solely a unique European project, that project would not become meaningless just
because it originates from European scholars because it might shed new light on international
law and offer a perspective that can become universal. Finally, the chances that the
constitutionalist project will be used for political purposes are rather low: constitutionalism is
still a scholarly project and not a vision yet promoted by politicians. Even if it would become
a European political project it can only become internationally accepted if it includes other

1382
Ibid., 408.
1383
D.M. JOHNSON, “World Constitutionalism in the Theory of International Law”, in R.St.J. MACDONALD and
D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community,
Leiden, Nijhoff, 2005, 20; A. PETERS, “The Merits of Global Constitutionalism”, Indiana Journal of Global
Legal Studies 2009, 403-404. C.E.J. SCHWÖBEL, “Organic Global Constitutionalism”, Leiden Journal of
International Law 2010, 535; A. BIANCHI, “International Law, Counterterrorism and the Quest for Checks and
Balances: Why the Calling Sirens of Constitutionalism Should Be Resisted”, in A. BIANCHI and A. KELLER
(eds.), Counterterrorism: Democracy’s Challenge, Oxford, Hart, 2008, 397; M. KOSKENNIEMI, “The Fate of
Public International Law: Between Technique and Politics”, Modern Law Review 2007, 15.
1384
A. PETERS,”The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 404.
Furthermore, a constitutionalist reading of international law is mainly supported by German scholars: A. VON
BOGDANDY, “Constitutionalism in International Law: Comment on a Poposal from Germany”, Harvard
International Law Journal 2006, 223-224; S. KADELBACH and T. KLEINLEIN, “International Law – A
Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles”,
German Yearbook of International Law 2007, 304
1385
B. FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia
Journal of Transnational Law 1998, 554-555.
1386
A. PETERS,”The Merits of Global Constitutionalism”, Indiana Journal of Global Legal Studies 2009, 404.

299
countries and regions, which will require the incorporation of those countries’ interests and
points of view.

§4. Jus cogens as the constitutional norms of international law

324. Previously, it has been demonstrated that although jus cogens is often seen as the ordre
public of international law, it fails to explain certain aspects of jus cogens. In this section it
will be argued that jus cogens reflects the constitutional norms of the international
community. International law does not have a formal constitution, nor has it been recognized
that there are material constitutional norms. Thus, a constitutionalist approach to international
law is adopted, a mindset that international law has constitutional norms and that having this
kind of constitutional norms is part of a larger project for international law. Any constitutional
perspective of international law has a descriptive and normative dimension. Therefore, it first
has to be established that jus cogens indeed operates as the constitutional law of the
international community, taking into consideration the concept of a constitution, the
characteristics of jus cogens, and the particular nature of the international level. Furthermore,
regarding peremptory norms as constitutional norms has implications for the structure of
those norms.

A. Jus cogens as constitutional norms

325. Constitutions have some elements in common. Constitutions typically contain norms on
the limitation of power, on authorities and how such norms should be created, i.e. the formal
sources of law and the rule of law.1387 The secondary rules of law in a Hartian sense are part
of the constitution.1388 Constitutional norms occupy the highest rank in a legal system and are
well-entrenched and often difficult to amend.1389 Nonetheless, it cannot be expected that the
constitution of the international society in each aspect reflects national constitutions. The
international level is different from the national level, the former still a horizontal legal

1387
E.-U. PETERSMANN, “How to Constitutionalize International Law and Foreign Policy for the Benefit of
International Civil Society”, Michigan Journal of International Law 1998-1999, 12; S. GARDBAUM, “Human
Rights and International Constitutionalism”, 2009, 6, at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088039; K. MILEWICZ, “Emerging Patterns of Global
Constitutionalization: Towards a Conceptual Framework”, Indiana Journal of Global Legal Studies 2009, 423;
A. VAN AAKEN, “Defragmentation of Public International Law Through Interpretation: A Methodological
Proposal”, Indiana Journal Of Global Legal Studies 2009, 487 and 491; D. BODANSKY, “Is There an
International Environmental Constitution?”, Indiana Journal of Global Legal Studies 2009, 569-570; A. STONE
SWEET, “Constitutionalism, Legal Pluralism, and International Regimes,” Indiana Journal of Global Legal
Studies 2009, 626; N. ONUF, “The Constitution of International Society”, European Journal of International
Law 1994, 13.
1388
A. STONE SWEET, “Constitutionalism, Legal Pluralism, and International Regimes,” Indiana Journal of
Global Legal Studies 2009, 625; N. ONUF, “The Constitution of International Society”, European Journal of
International Law 1994, 13-14; S. KADELBACH and T. KLEINLEIN, “International Law – A Constitution for
Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles”, German Yearbook of
International Law 2007, 308.
1389
N. ONUF, “The Constitution of International Society”, European Journal of International Law 1994, 10; D.
BODANSKY, “Is There an International Environmental Constitution?”, Indiana Journal of Global Legal Studies
2009, 571.

300
system, the latter more vertically structured. In the international legal order States make and
apply the law to themselves. In general international law States are the law-makers, law-
enforcers and law-interpreters. Hence the division of powers and the corollary of checks and
balances is not present in the international legal order.1390 According to BODANSKY, one may
not expect at the international level the characteristics of a liberal constitution, such as
democracy, separation of powers, checks and balances and protection of fundamental rights,
characteristics that are not necessary elements of the general concept of constitution.1391
Moreover, unlike most domestic legal systems, there is no single overarching document
containing all the constitutional norms, but rather some of the norms will be based on
unwritten customs.1392 Others may be found in treaties that are nearly universally accepted,
such as the Charter of the United Nations, the four Geneva Conventions, and the Convention
on the Rights of the Child. In addition, since there is no court with compulsory jurisdiction at
the international level, there will be no constitutional court to settle and enforce constitutional
norms. Nonetheless, this does not entail that international law cannot have constitutional
norms since the existence of norms is separate from the enforcement of those norms. In
addition, some national legal systems do not provide for judicial review, but still have a
constitution.

326. At the international level jus cogens norms can be deemed to fulfil the function of
constitutional norms. An important element for constitutionalization in international law is the
evolution from a legal system based on self-interests grounded in State consent to a legal
system based on common interest that can bind non-consenting States.1393 The international
society has transformed into an international legal community, not solely concerned with the
individual interests of States, but also addressing common interests and goals and the interests
of non-State actors. States are under a general obligation to cooperate for the common good,
which indicates that international law has moved beyond the maximization of subjective
interests of States.1394 The common goals and interests of a society are protected by law
against the particular interests of its members, thereby reinforcing the values of the
community.1395 Furthermore, the cardinal common values are enshrined in a constitution
protecting citizens against abuse by authorities. Jus cogens precisely protect the common

1390
A. BIANCHI, “International Law, Counterterrorism and the Quest for Checks and Balances: Why the Calling
Sirens of Constitutionalism Should Be Resisted”, in A. BIANCHI and A. KELLER (eds.), Counterterrorism:
Democracy’s Challenge, Oxford, Hart, 2008, 400. Even not necessarily in the organized international society,
for instance the United Nations: Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, § 43.
1391
D. BODANSKY, “Is There an International Environmental Constitution?”, Indiana Journal of Global Legal
Studies 2009, 569.
1392
J.P. TRACHTMAN, “The Constitutions of the WTO”, European Journal of International Law 2006, 628.
1393
S. GARDBAUM, “Human Rights and International Constitutionalism”, 2009, 26, at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088039.
1394
See: The Duty of States to Co-operate with One Another in Accordance with the Charter, Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance
with the Charter, Annex to UN General Assembly Resolution 2625 (XXV) (1970).
1395
As indicated in Nos. 120-121, a community may develop a legal order to protect the community interests,
but not all communities develop a legal order. In any event, the creation of a community through law is rather
hard, but communities can be strengthened by the protection of their core values: B. FASSBENDER, “The United
Nations Charter as Constitution of the International Community”, Columbia Journal of Transnational Law
1998, 566.

301
interests of the international community from derogation by a limited amount of States,1396
thereby limiting the law-making capacity of international subjects.1397 Since derogation is not
permitted, no State can decide not to be bound by a peremptory norm by concluding a treaty,
initiating practice contrary to the peremptory norm or by claiming to be a persistent
objector.1398 Hence, States are and remain bound by a peremptory norm even if their will is to
derogate from it, a possibility that is open to them in case of ordinary international norms.

327. Nevertheless, the protection of common interests by derogation can also be explained
by having recourse to the concept of ordre public. Treaties and unilateral acts are thus
considered to be similar respectively to contracts or unilateral acts at the national level that
will be void if they go against the public interest. Customary norms that go against
peremptory norms would be deemed to be based on a tacit agreement and thus also void if
they derogate from public policy. However, this assumes that every source of international is
based on consent, which is not the case for customary international law (and general
principles of law). Customary international law is rather based on a shared conviction that
certain conduct is required by a rule of law.1399 However, if they go against a peremptory
norm, such norms will be declared void.1400 In addition, norms of jus cogens may deal with
the protection of individuals or peoples that are also enshrined in national constitutions, for
instance the prohibition of torture or genocide. Treaties – the consensual instrument par
excellence – that go against such norms do not merely establish a contractual relation based
on reciprocity between the parties to the treaties, but instead are instances of law-making
limiting or repealing the rights of individuals and peoples that the State parties have to respect
at the national constitutional level and cannot undo at the international level because of their
peremptory status. Since there is a close connection between the protection of human rights at
the national and international level, it is more consistent to consider a treaty limiting or
repealing rights that enjoy jus cogens status at the international level as a constitutional issue
at both levels, than a constitutional issue at the national level and an ordre public issue at the
international level. At both levels it involves a limitation of law-making power in order to
protect rights that may have exactly the same content (or may even have been introduced by
international law in national constitutional law). 1401 The actors involved are the States parties
that are obliged to respect the rights at both levels and have no power at both levels to undo or
limit the rights.1402 In addition, national human rights law, regional human rights law and
international human rights law influence each other so that one can speak of a

1396
One of the criteria to identify peremptory norms is the protection of common interests as opposed to
individual State interest, which States can derogate from at their own free will: supra, Chapter 2, Section 2.
1397
Supra, No. 121.
1398
Supra, Chapter 4, Section 3, § 2, B, 1.
1399
Supra, No. 65.
1400
Supra, Chapter 4, Section 3, § 1, A.
1401
S. GARDBAUM, “Human Rights as International Constitutional Rights”, European Journal of International
Law 2008, 750.
1402
The main difference is that not all rights that are protected at the national level will be peremptory norms at
the international level; moreover, not all human rights at the international level that are equally found at the
national level are necessarily part of jus cogens. In this case, a treaty limiting or repealing non-peremptory
human rights is conceptually the same as a treaty reducing and repealing peremptory human rights: it also
involves a dimension of law-making by public authorities, instead of a mere contractual-like obligation.
However, in this the case the reducing or repealing of rights is permitted under international law since it does
not involve a right protected by an international constitutional norm.

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“Verfassungskonglomerat”.1403 Thus, it is more logical to conclude that the limitation or
repealing of rights that cannot be repealed at the national or international level involves an
abuse of public power at both levels, instead of resorting to an analogy of contract law.1404
Regarding peremptory norms as constitutional norms also creates a relationship between the
international and national constitutional level, where both levels reinforce and shape each
other, together providing the constitutional protection through a constitutional network.1405

328. Another feature of constitutional norms is that they are hierarchically the highest norms
in a legal system and that they are entrenched against rapid changes. Peremptory norms have
established a hierarchy in international law,1406 although it is not a formal hierarchy as in
most, but not all, national legal systems. This hierarchy is directly expressed through the
invalidation or termination of norms going against peremptory norms and indirectly by the
interpretation of a norm in conformity with peremptory norms. Through this hierarchical
relation between peremptory norms and other international norms, international law is
protected against overfragmentation and integrates the different members of the international
community around some core values they all can accept. In addition, the technique of
systemic integration ensures that norms are interpreted in accordance with general
international law and especially in accordance with peremptory norms. The assumption is that
by creating special norms States did not have the intention to deviate from general
international law and especially jus cogens for matters that are not specifically regulated by
the special norm. Moreover, systemic integration would ensure that if a special norm can be
interpreted in such a way that it would be contrary to jus cogens, that norm would be
interpreted in conformity with the peremptory norms since States cannot be assumed to opt to
violate jus cogens. This is similar to the technique at the national level to interpret laws in
accordance with the constitution instead of declaring them invalid because it is assumed the
government would not choose to violate constitutional law.

329. Another indication that jus cogens norms are constitutional norms can be found in the
law of State responsibility. Jus cogens norms are equally obligations erga omnes.1407 This

1403
E. DE WET, “The Emergence of International and Regional Value Systems as a Manifestation of the
Emerging International Constitutional Order”, Leiden Journal of International Law 2006, 612. See also: M.
KNAUFF, “Konstitutionalisierung im inner- und überstaatlichen Recht – Konvergenz oder Divergenz?”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2008, 482 et seq.
1404
The European Court on Human Rights has spoken of the European Convention on Human Rights as the
“constitutional instrument of European public order”: Loizidou v. Turkey, Application No. 15318/89,
Preliminary Objections, Judgment, 23 March 1995, Series A, 1995, No. 310, § 75; Al-Skeini and Others v. The
United Kingdom, Application No. 55721/07, Merits and Just Satisfaction, Judgment, 7 July 2011, § 141, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en. The European Court of Justice has considered
national human rights as constitutional norms at the EU level: Internationales Handelsgesellschaft mbH v.
Einfuhr- und Vorratstelle für Getreide und Futtermittel, Case 11-70, Judgment, 17 December 1970, European
Court Reports 1970, 1135, § 4; J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European
Communities, Case 4-73, Judgment, 14 May 1974, European Court Reports 1974, 507, § 13; Liselotte Hauer v.
Land Rheinland-Pfalz, Case 44/79, Judgment, 13 December 1979, European Court Reports 1979, 3745, § 15;
Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84, Judgment, 15 May
1986, European Court Reports 1986, 1682, § 18.
1405
See in this respect: A. PETERS, “Compensatory Constitutionalism: The Function and Potential of
Fundamental Norms and Structures”, Leiden Journal of International Law 2006, 579 et seq.
1406
Supra, Chapter 4, Section 3, § 2.
1407
Supra, Chapter 4, Section 3, § 3, B, 2.

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entails that every State has a legal interest in seeing these norms respected, even though their
subjective interests are not affected or have not suffered injury. Rather obligations erga omnes
protect the interests of the international community as laid down in peremptory norms. Thus,
obligations erga omnes indicate that upholding jus cogens norms is not similar to private law
disputes but have a constitutional dimension: the upholding of the most important norms that
protect the public interest.1408 States thus do not act because one of their interests is affected,
but have a legal interest in upholding the most fundamental laws of the international
community. Furthermore, as members of the international community, not directly affected
States have duties to remedy serious breaches of peremptory norms, previously labelled
“obligations owed to the international community as a whole and essential for the protection
of its fundamental interests”.1409 States are obliged to cooperate in order to remove the
consequences of the serious breach; States are also under the duty not to recognize the
situation created by the serious breach as lawful and may not render in any way aid or
assistance in maintaining the unlawful situation.1410 The aim of those duties is to isolate the
culprit State and the consequences of the serious breach and to restore through cooperation
the international legal order. Through the lens of jus cogens as constitutional norms any
serious attempt to undermine a constitutional norm must by countered by all other states as
members of the international community that are primarily charged with upholding
international law and its fundamental norms, so that the constitutional norms of the
international community are reaffirmed again. This is not significantly different from the
national level, where authorities are under an obligation to remove unconstitutional situations
from the legal order or to loyally cooperate in constitutional matters.1411

330. If peremptory norms are best regarded as constitutional norms of the international
community, does this lead to the conclusion that all constitutional norms are necessarily jus
cogens? Constitutions typically contain rules on what is a valid law, and how to make and
change the laws and how disputes on the exact meaning and violations of rules should be
settled. Constitutions thus also contain secondary rules, or a rule of recognition, rules of
change and rules of adjudication.1412 At the international level, rules of adjudication play no
constitutional role since States have the power to determine the exact scope of international
rules. In case of dispute on the exact meaning of a rule, States have a duty to settle the dispute
peacefully with judicial settlement only being optional. There are mechanism in international
law that determine whether a rule has been violated, but these rules can be set aside by more
specialized rules or States can agree that in the particular instance no violation occurred and
waive responsibility.1413 However, this is not dissimilar to national constitutional law where

1408
A. NOLLKAEMPER, “Constitutionalization and the Unity of the Law of International Responsibility”, Indiana
Journal of Global Legal Studies 2009, 548.
1409
Supra, No. 274.
1410
Article 41 Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001).
1411
See in this respect: R.St. MACDONALD, “The International Community as a Legal Community”, in R.St.J.
MACDONALD and D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the
World Community, Leiden, Nijhoff, 2005, 871 et seq.
1412
A. STONE SWEET, “Constitutionalism, Legal Pluralism, and International Regimes,” Indiana Journal of
Global Legal Studies 2009, 625; N. ONUF, “The Constitution of International Society”, European Journal of
International Law 1994, 13-14.
1413
Article 45 Draft Articles on State Responsibility (2001). The only exception would be waiver of a claim of
responsibility for a violation of jus cogens which would amount to a derogation of the peremptory norm: supra
No. 209.

304
constitutional questions may not be settled before a constitutional court.1414 Nonetheless, the
constitution of the international community contains a rule of recognition and rules of
change.1415 The latter are certainly not peremptory norms since this would imply that all rules
in the Vienna Convention on the Law of Treaties dealing with the formation, change and
termination of a treaty would be peremptory, whereas these rules are largely supplementary
and nothing would for instance prevent parties to exclude grounds of termination of a treaty
either by treaty or through the formation of a custom. Equally, it is theoretically possible that
States would conclude a treaty or form a custom that derogates from the general rules of
change of a custom or a general principle of law.1416 Nonetheless, the sources of international
law, treaty, custom and general principles of law are fixed and logically cannot be derogated
from.

331. Whereas the rules of change can be derogated from, the rule of recognition is
conceptually not derogable. The rule of recognition is a social convention amongst officials
that establishes the criteria of a valid law and guarantees the unity of a legal system.1417
Ultimately, every legal system can only have one rule of recognition,1418 which entails that
derogations are either not possible or lead to the formation of a new legal system. In
international law, each norm can be reduced to the three recognized sources, treaty, custom or
general principles of law. A limited amount of States can create new sources or exclude one
of the existing sources between themselves, but this does as such not contradict the rule of
recognition: due to the limited domain of law,1419 the expansion and exclusion of sources
between certain States can only be done by the adoption of a rule that is produced by one of
the recognized sources. It is only when this evolves beyond the rule adopted and becomes a
social fact that a new rule of recognition has arisen and a new legal system formed. In
addition to fulfilling the criteria of one of the three sources, all norms produced at the
international level have to be in accordance with jus cogens. Hence, a norm is a valid norm of
international law if and only if it is set out in a treaty, custom or a general principle of law and
respects jus cogens. It can be argued that this rule of recognition can be derogated from, by
advancing a rule of recognition that does not require respect for peremptory norms. In order to
prevent this, the rule of recognition must itself be a peremptory norm invalidating any
contrary rule of recognition. If not, certain States could set aside jus cogens norms by
adhering to a rule of recognition that does not require respect for jus cogens. However, this
reasoning would ignore that the rule of recognition is a social fact, a social convention

1414
Supra, No. 4.
1415
N. ONUF, “The Constitution of International Society”, European Journal of International Law 1994, 14.
1416
A change in custom requires State practice and an opinio necessitatis: supra, Nos. 69-70. General principles
of law contain general principles of law derived from national legislation and general principles that are
inherent to every legal system, including the international legal system. Only, the former can be subject to
change since the latter are necessarily included in every legal system. The individuations of these principles can
be changed, but not the principle as such. supra, Chapter 1, Section 2, § 3, C, 3 and 4.
1417
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 101-102; J. RAZ, The Concept
of a Legal System, Oxford, Clarendon, 1980, 199; J. WALDRON, “All We Like Sheep”, Canadian Journal of
Law and Jurisprudence 1999, 180; A. SEBOK, “Finding Wittgenstein at the Core of the Rule of Recognition”,
Southern Methodist University Law Review 1999, 106-107.
1418
H.L.A. HART, The Concept of Law, Oxford, Oxford University Press, 1997, 107.
1419
The limited domain thesis of law holds that law only recognizes certain facts and procedures – sources –
that are legally relevant: F. SCHAUER, “The Limited Domain of the Law”, Virginia Law Review 2004, 1914-
1915.

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amongst authorities, and not a legal rule. It is hence meaningless to regard the rule of
recognition as a peremptory norm.

B. Peremptory norms as principles

332. If peremptory norms operate as constitutional norms they will limit the law-making
powers of States by, like national constitutions, bestowing rights upon individuals. Hence,
some peremptory norms will contain human rights which are typically phrased as rights to
omissions or acts, for instance the right to life, the right not to be subjected to slavery or the
right to receive a fair trial; other peremptory norms will lay down norms that determine the
political framework, but these can equally be reformulated as rights. Thus, the prohibition on
the use of force between States can be rewritten as the right of every State not to be subjected
to the use of force by any other State. Generally, a prohibition (Ph) of x towards y to A
(whereby A can mean any act or omission) is equal to a duty (O) of x towards y not to do A.

(1) Phxy A = Oxy ~ A

This corresponds with a right (R) of y towards x to ~ A:

(2) Phxy A = Oxy ~ A ↔ Ryx ~ A.1420

Consequently, many peremptory norms can be considered as rights. Since peremptory

norms function as constitutional norms of the international community, they can be regarded
as constitutional rights. In that case, ALEXY has held that they conceptually are principles,
because it is the only sound theory of constitutional rights.1421 As stated in Chapter 1,
principles are optimization requirements: they are norms that need to be realized to the fullest
extent, taking into account legal and factual possibilities. Rules on the other hand are
definitive. Rules have to be followed and in case of conflict between rules, either the rule is
invalid or an exception has to be introduced.1422

333. It might be odd to regard peremptory norms as principles. Peremptory norms appear
rule-like: they are relatively specific and seem to have a definitive character due to their
higher hierarchical position. After systemic interpretation1423 either a norm derogates or does
not derogate from jus cogens and norms derogating from jus cogens are immediately
invalidated. In the former, the rule is invalid; in the latter there is no conflict between the
peremptory norm and the ordinary norm of international law. In both cases the peremptory
norm continues to stand and be applied fully without the need for balancing. How can this be
reconciled with the idea that constitutional norms are principles, in the sense that they have to
be applied as far as is factually and legally possible? It seems that peremptory norms are rules
after all.

1420
R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010, 131 et seq, making
reference to the Hohfeldian scheme.
1421
Ibid., 44.
1422
R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010, 49-50.
1423
Supra, Nos. 235-237.

306
334. A solution to this problem is hinted at by ONUF. According to him, all norms have a
regulative and constitutive aspect, yet some norms are more specialized in the regulative or
constitutive aspect.1424 Hence, each norm not only informs subjects what conduct is to be
expected, but equally what the values are that build the society. Constitutional norms will
typically be weightier in the constitutive aspect, in identifying the most important values in a
society, while maintaining some regulative function as well. This explains why constitutional
norms are principles: since they communicate the most important values of a society, in case
different values are in conflict, these values have to be weighed against each other, resulting
in constitutional norms that have to be upheld as far as legally is required.1425 Nonetheless,
they have also a minimum regulative core so that norms that directly go against that core will
be struck down without the need for balancing. Although ALEXY considers principles never as
definitive reasons for actions,1426 it is submitted that principles can be definitive reasons since
they are also norms and thus prescribe what ought to be done (i.e. the regulative dimension),
although they are typically more open-textured than norms. ALEXY himself seems to give
such an example when discussing the finding that certain principles are never valid in a given
legal system, in casu the principle of racial segregation in the German legal system. Although
he rightly concludes that the existence of a principle that is never valid does not affect the
theory he defends because the theory is concerned with the relation between valid
principles,1427 the question still needs to be answered upon which ground the principle of
racial segregation is not to be found valid for the German legal system. Without pretending to
be an expert in German constitutional law, it can be argued that the principle of racial
segregation would directly conflict with the normative core of the principle of human dignity
(Article 1 German Basic Law), the right to free development of personality (Article 2 German
Basic Law) or the principle of equality before the law (Article 3 German Basic Law).

335. Peremptory norms as the constitutional norms of the international community equally
have both the regulative and a constitutive dimension, yet, unlike national constitutional
norms, their regulative dimension will be stronger. At the national level constitutions have
been proclaimed in separate documents with a heightened status, set apart from other laws,
and focus on the values that constitute society. This is not the case with peremptory norms
which start their lives as ordinary norms of international law and only later will become
peremptory when the value enshrined in the norm is deemed to be of such importance that it

1424
N. ONUF, “The Constitution of the International Society”, European Journal of International Law 1994, 7.
ONUF uses the concept of rules instead of norms, but since he never makes the conceptual distinction between
rules and principles (except in considering principles as more general rules: Ibid., 10), the basic units of a legal
system are rules. If one makes the conceptual distinction between rules and principles that is not based on the
level of generality, however, rules are only one type of basic unit. The appropriate name for the basic deontic
unit is then “norms”: R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010, 45.
1425
They also have a regulative function: a law that manifestly goes against the basic norms of the constitution
will be invalid and the constitutional norm will have to be followed, but in most cases it will involve the
weighing of different constitutional principles in order to assess whether a law is constitutional.
1426
If the principle is the dominant factor, it will lead to the formulation of a rule that in turn will be the
definitive reason for a concrete ought-judgment: R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford
University Press, 2010, 60. ALEXY considers rules and principles as reasons for norms because his theory is
jurisprudential. Since in this argument I am focusing on the regulation of behaviour it is in this context more
appropriate to speak of reasons for action. The two approaches are actually not significantly distinct: Ibid., 59.
1427
R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010, 61-62.

307
should constitute the international community.1428 Nevertheless, by becoming a peremptory
norm and fulfilling a constitutional function the peremptory norm will not lose it regulative
dimension, but failures to regulate international relations will have no impact anymore
because of the prohibition of derogation that reflects the constitutional dimension of the
norm.1429 It is this retained regulative dimension that give peremptory norms their definitive
character: in case of conflict between an international norm and a peremptory norm States
should regulate their relations in accordance with the peremptory norm. Peremptory norms
will however act like principles when more than one peremptory norm is relevant to decide a
legal issue, for instance to answer the question whether force can be used to halt severe
human rights violations or if sovereign immunity should be waived in case of violations of jus
cogens. Since in such case all the values are of such importance as to constitute the
international community, one of these values cannot be set aside in favour of the others.
Rather, both norms and the values they protect will have to be balanced against each other in
such a way that both are realized as much as is legally and factually possible. This results in
the insertion of a precedence clause, or the formulation conditions upon which one principle
will have precedence over the other. The principles and the precedence clause together form a
conflict-rule: if the particular circumstances materialize one principle will have priority over
the other principle, but only for those particular circumstances. In other situations the
precedence may change.1430 Nonetheless, not all peremptory norms will be principles. For
instance the prohibition of torture has been held to be “absolute right, permitting of no
exception in any circumstances.”1431 Similarly there are no circumstances in which the
prohibition of genocide would not fully apply. Yet, most of the peremptory norms will not
have this absolute character when conflicts arise as between them.

336. If peremptory norms are best conceived as principles in their mutual relations, this will
impact on how conflicts between them will be settled. If peremptory norms as constitutional
norms would all be rules, a conflict between the two would either result in the invalidity of
one of the peremptory norms or in the introduction of an exception to one of the peremptory
norms. The first solution is not correct and cannot be adopted. Every peremptory norm has
been accepted by the international community of States as a whole to be of fundamental
importance. As a result the law-making capability of each State has been severely restricted,
precisely to protect the fundamental values protected by the peremptory norms. In case of a
conflict between two peremptory norms in a particular situation the issue is not which one of
the two norms is valid, but how to reconcile them so that a solution to the specific situation
can be found. Invalidity of one of the peremptory norms would entail that the norm ceases to
exist and consequently that States have full legislative powers again, while previously they
agreed that the norm was fundamental. The situation in which both peremptory norms

1428
The Kellogg-Briand Pact (1928) is a good example in this respect: as such it was a treaty in which the
parties aimed at regulating their relations by prohibiting war between them. Later the prohibition of the use of
force became recognized as a peremptory norm that should constitute the future international society.
1429
See: N. ONUF, “The Constitution of the International Society”, European Journal of International Law
1994, 16, where he states that failures to uphold the prohibition on the use of force – a peremptory norm – does
not impact its existence or content because of its constitutive function.
1430
Supra, No. 88.
1431
European Court of Human Rights, Al-Adsani v. the United Kingdom, Application No. 35763/97, Merits,
Judgment, 21 November 2001, Reports of Judgments and Decisions 2001-XI, § 59.

308
conflicted would thus determine that the peremptory norm loses its validity, whereas that
peremptory norm was and would be fully operational without the conflict.
The second option – the introduction of an exception – is feasible and might be a correct
solution to the conflict, so that the peremptory norm remains valid but becomes qualified by
another peremptory norm in certain or in all circumstances. For instance, the right to self-
defence has been accepted as an exception to the prohibition of the use of force. Thus, it
seems to be more correct to speak of the rule on the prohibition of the use of force, instead of
the principle of the use of force. If this solution can be adopted for the prohibition of the use
of force, it might be the preferable solution for each conflict between peremptory norms.
Nonetheless, this cannot be maintained for the following reasons. First, concerning the
prohibition on the use of force, the exception is closely related to the substance of the norm: it
concerns a lawful use of force in reaction to an illegal use of force. The general prohibition
and the exception both deal with the same conduct – the use of force –, one that is an illegal,
the other a legal manifestation of force. Yet, this qualified prohibition of the use of force does
not answer the question what decision to take in situations where respecting the prohibition
might conflict with other peremptory norms. To make this more concrete: what if a State
respects the prohibition on the use of force, but thereby would give free reign to a government
that systematically abuses human rights. Should it respect the prohibition to use force or may
it opt for humanitarian intervention? Can it always use force or will it depend on the factual
circumstances, the breaches of certain human rights, and the scope of those breaches?
Balancing and the formulating of a conflict-rule might be required after all. Second,
peremptory norms contain human rights and these are frequently treated as principles at the
national and international level since at both levels they are subjected to balancing. It is
unlikely that the quality of these norms will change from principles to rules merely because
derogation from them is not permitted and they have become hierarchically superior to other
norms of international law. Hence, in most cases of conflict between peremptory norms, the
right solution will be found by balancing the different peremptory norms and by formulating a
conflict-rule.

337. A final issue to be addressed is who will formulate the conflict-rule. For ALEXY the
case is clear: since he is writing about the German Basic law,1432 it will be the
Bundesverfassungsgericht, as Germany’s constitutional court that will formulate the conflict-
rules on constitutional issues. However, at the international level there is no constitutional
court. Since a conflict-rule involves the setting aside of one peremptory norms as the result of
balancing that norm with another peremptory norms, it should be the international community
of States as a whole which decides on the formulation of the conflict-rule and the introduction
of an exception to the peremptory norm. The conflict-rule will thus also be a peremptory
norm that will establish the circumstances in which one peremptory norm will have more
weight than another. International constitutional law will thus not only comprise basic norms
of jus cogens, but also peremptory conflict-rules that establish the relation between two (or
more) peremptory norms depending on the factual and legal circumstances. Nonetheless, there
is at this point no indication that such a conflict-rule has already been established. This is
mainly due to slow formation of such a rule in a decentralized international community in
which all States have to agree or accept the conditional conflict rule as part of jus cogens.
Since the need for such a rule often originates from the occurrence of certain particular

1432
R. ALEXY, A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010, 5-6.

309
circumstances that require the balancing of multiple peremptory norms, the formulation of the
conflict-rule might be barred by the disappearance of the circumstances and the need to focus
on other situations before any agreement could be found. Despite this, it is not impossible that
a conflict-rule will be adopted in the end in case of a recurrent situation that involves a
conflict between the same peremptory norms, as is evidenced by the debate on humanitarian
intervention by the use of force against a State that seriously violates human rights.1433

§5. Constitutionalism based on jus cogens

338. In the thesis I defend a constitutionalism that is based on jus cogens as the
constitutional norms of the international community. As indicated before, adopting a
constitutionalist reading of international law is not a neutral stance. Although it can be argued
that jus cogens better fits the concept of constitutional law than the concept of ordre public,
this does not explain on which basis the constitutional perspective on international law is to
be preferred over other perspectives that may have their own intrinsic worth. Therefore, it has
to be established on which political project a particular type of constitutionalism is based.1434

A. Constitutionalism based on jus cogens as a liberal perspective on international law

339. Constitutionalism based on jus cogens is grounded in liberal tenets. It is liberal because
it accepts that political power existed before the constitutional norms that try to harness that
political power.1435 As it has evolved, jus cogens is a relatively recent development in
international law.1436 It has been created by States, the most prominent political actors at the
international level, in order to limit their power, originally limited to the field of the law of
treaties, before expanding to other areas, invalidating all norms contrary to peremptory norms,
establishing a hierarchy and a duty to interpret international law in conformity with
peremptory norms. Hence, a constitutionalism based on jus cogens limits the pre-existing
power of States and thus neatly fits within the liberal tradition, which stresses the rule of law
and individual rights that limit the scope of action of the government. It also reflects

1433
This will be examined infra, Chapter 6, Section 4, § 1. On the debate on the legality of humanitarian
intervention, see: A.P.V ROGERS, “Humanitarian Intervention and International Law”, Harvard Journal of Law
and Public Policy 2003-2004, 725 et seq., with an overview of State practice on pages 733-735; D.H. JOYNER,
“The Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm”, European Journal of
International Law 2002, 597 et seq, with an analysis on customary international law on pages 601-604; B.
SIMMA, “NATO, the UN and the Use of Force: Legal Aspects”, European Journal of International Law 1999, 1
et seq; A. CASSESE, “Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible
Humanitarian Countermeasures in the World Community”, European Journal of International Law 1999, 23 et
seq; S. STEVE, “The Contemporary Legality of Unilateral Humanitarian Intervention”, California Western
International Law Journal 1993-1994, 117 et seq., with an overview of practice on pages 143-151; A. PETERS,
“Humanity as the A and Ω of Sovereignty”, European Journal of International Law 2009, 537.
1434
M. KOSKENNIEMI, “The Fate of Public International Law: Between Technique and Politics”, Modern Law
Review 2007, 19.
1435
T. GIEGERICH, “The Is and the Ought of International Constitutionalism: How Far Have We Come on
Habermas’s Road to a ‘Well-Considered Constitutionalization of International Law’?”, German Law Journal
2009, 36.
1436
At the point of introduction jus cogens was considered a progressive development of international law:
supra, No. 1.

310
international liberal theory that holds that the international sphere of anarchy between
sovereign States must be domesticated by the adoption of liberal precepts that are also found
at the national level.1437 Hence, there is a limitation of State power at the international level by
the adoption of constitutional norms that are based on the concept of jus cogens.

340. However, it has been argued that the liberal perspective on constitutionalism is not
suitable for the international level due to the different political and cultural beliefs. Defending
in such a context a liberal constitutional framework would lead to the exclusion of other
perspectives. For instance, in international doctrine scholars have favoured an anti-pluralist
conception of liberalism stressing the individual and human rights as accepted in liberal
States. States who do not conform to these values may be subject to pro-democratic
intervention,1438 or at least cannot be considered equal to liberal States.1439 Consequently,
alternatives have been proposed to a liberal constitutionalism. In this respect, in a recent
contribution to the constitutionalist debate SCHWÖBEL has introduced an alternative to the
liberal project of constitutionalism, organic global constitutionalism, one that does not
exclude non-liberal perspectives. This alternative will be closely scrutinized since it indicates
certain problematic aspects of a constitutionalism based on jus cogens and since a reply to
those criticisms will highlight what kind of liberal project constitutionalism based on jus
cogens defends.

341. Unlike liberal constitutionalism, the constitutionalism that SCHWÖBEL defends is not
focused on fixed common values, but considers constitutionalism as an ongoing, participatory
driven and flexible process,1440 stressing formalism or proceduralism.1441 For SCHWÖBEL
constitutionalism is a process that emphasizes the political and discursive aspect of
constitutionalism;1442 a constitutionalism that only provides for a space in which debate on
particular experiences can take place, experiences that do not necessarily have a common
ground;1443 and a constitutionalism that does not fix common values but promises a
constitution for the future, a promise for a better future through the realization of a shared
project.1444 According to this view a constitutionalism based on jus cogens as common values
of the international community is defective since it advances liberal values that are not shared
by the whole international community and fixes them above politics in a hierarchical
relationship, excluding other norms deviating from peremptory norms.1445

342. If constitutionalism on the basis of jus cogens is a liberal project, is it therefore also an
anti-pluralist project? It is submitted that it is not necessarily so, although jus cogens has been

1437
A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal International ‘Legacy’”, Review of
International Studies 2001, 211.
1438
F.R. TESÓN, “The Kantian Theory of International Law”, Columbia Law Review 1992, 53 et seq.; F.R.
TESÓN, “Defending International Law”, International Legal Theory 2005, 87 et seq.
1439
See: A.-M. SLAUGHTER, “International Law in a World of Liberal States”, European Journal of
International Law 1994, 503 et seq.
1440
C.E.J. SCHWÖBEL, “Organic Global Constitutionalism”, Leiden Journal of International Law 2010, 540-
543.
1441
Ibid., 539.
1442
Ibid., 543-548.
1443
Ibid., 549-550.
1444
Ibid., 551-552.
1445
Ibid., 545.

311
regarded in this way. However, SIMPSON has demonstrated that liberalism in international law
can be subdivided into an anti-pluralist strand that stresses liberal values and a “Charter
liberalism” that emphasizes moral pluralism and tolerance.1446 The concept of jus cogens is
more linked to “Charter liberalism”, as is evidenced from its wording that norms of jus cogens
should be accepted by the international community of States as a whole, including non-liberal
States. Thus, jus cogens cannot be the imposition of liberal democratic values upon other non-
liberal States since those have to accept those norms in one way or another in order to become
peremptory. Moreover, the introduction of jus cogens in international law was mainly
championed by communist and developing States and opposed by Western States.

343. Although SCHWÖBEL is highly critical of jus cogens as a basis of constitutionalism,

constitutionalism based on jus cogens is not as incompatible with organic global
constitutionalism she defends, precisely because it is grounded in the liberal tradition of moral
pluralism and tolerance. SCHWÖBEL is however correct to point out that jus cogens has been
used in doctrine to advance a liberal democratic agenda by stressing the objective moral
character of the norms involved, which coincide with the values of liberal democracy.
Nonetheless, as we have demonstrated, a moral interpretation of jus cogens is not necessarily
a moral realist one.1447 An emotivist account of jus cogens precisely demonstrates that there
are no objective moral values, but only moral values based on strong personal beliefs. Since
there is no moral truth (at least not one that can be discovered) a consensus has to be reached
which moral value should be incorporated in a peremptory norm. An important consequence
is that the decision to give a norm the status of peremptory norm is a political choice,
depending on the political consensus between States and not necessarily alone on the intrinsic
moral value it protects. It is a decision of the international community of States as a whole
that certain norms have a higher importance so that they are immune from derogation and thus
relatively more fixed. In addition, once a norm has been bestowed jus cogens status, there is
no guarantee that the moral value enshrined in that peremptory norm will be agreed upon
forever. Hence, jus cogens is open to change: Article 53 Vienna Convention on the Law of
Treaties explicitly provides that peremptory norms can change. In addition, it has been
demonstrated that norms of jus cogens can be abolished if the consensus disappears. Although
abolishing a peremptory norm is practically difficult to achieve, theoretically it remains
possible. Although jus cogens norms are not easily modified or abolished, they are not
entirely fixed and they would in any event not bar discussion on those norms or new
peremptory norms from arising. Consequently, jus cogens does not stand completely above
politics and debate, but like national constitutional norms it stands above daily politics.
Individual members cannot change a peremptory norm, a change requires all members to
participate in the debate and to make the political decision to maintain, modify or abolish the
peremptory norm.

344. Of course differences will remain. Whereas organic global constitutionalism abhors the
fixing of values, the goal of jus cogens is precisely to protect certain community values by
impeding their setting aside and their rapid change. Constitutionalism based on jus cogens is
not a universal negative, since the purpose of the deliberation within the international

1446
G. SIMPSON, “Two Liberalisms”, European Journal of International Law 2001, 539.
1447
Supra, Nos. 157-158.

312
community of States is to arrive at commonly accepted peremptory norms.1448 It also not a
constitutionalism as a promise for the future since it determines norms that are applicable
today and through their hierarchically superior position are relatively fixed for the future.
Thus, constitutionalism based on jus cogens is not as flexible as global organic
constitutionalism argues constitutionalism should be. However, whereas constitutionalism
based on jus cogens is relatively inflexible compared to global organic constitutionalism, it
fares much better on deciding constitutional issues that need to be settled. Any society needs
to make decisions on how political power is organized and limited; whereas debate on this
subject by all members of society is needed to come to a legitimate decision, no society has
the luxury to continue debate on the topic: at a certain point in time a decision is required,
otherwise power cannot be exercised in a legal and legitimate manner. Therefore,
constitutionalism is not only about the organizing on equal terms of constitutional debate, but
equally about providing a normative framework in a society against which the exercise of
political power is scrutinized. By laying down and protecting the values upon which that
society is founded a constitution provides a benchmark against which the exercise of political
power at a certain point in time can be judged. Furthermore, victims of constitutional
violations may not be helped by a constitutionalism that only provides the creation of an area
of discourse and constitutionalism as a promise. Suspects of terrorism that on the basis of a
treaty face rendition to a country where they will in all likelihood be tortured are not helped
by continuing debate on the desirability of torture in such cases and by a constitutionalism to
come, but by an unequivocal legal decision that such rendition flouts the (contemporary)
international constitutional order.

345. In any case, constitutionalism based on jus cogens is not completely inflexible since
changes may occur. Furthermore, its flexibility is enhanced by regarding peremptory norms in
their mutual relations as principles. The amount of peremptory norms may be fixed, but not
how they relate to each other, since principles have to be fulfilled as far as is factually and
legally required depending on the circumstances. This leads, in theory at least, to an infinite
amount of possibilities in which peremptory norms have to be weighed against each other.
Moreover, since at the international level there is no constitutional court, the balancing will
only lead to the formulation of a conflict-rule if that rule is accepted or recognized by the
international community of States as a whole.1449 In addition, the decision on how to balance
the different peremptory norms – in other words the application of multiple peremptory norms
to a particular situation – is a political decision.1450 This reaffirms that constitutionalism
based on jus cogens does incorporate the political and discursive dimension of
constitutionalism while fixing which norms belongs to jus cogens and determining how these

1448
SCHWÖBEL argues that global organic constitutionalism should not only have no predetermined values, but
also should not determine common principles. Global organic constitutionalism as a negative universal is only
characterized by the discourse of particularities: C.E.J. SCHWÖBEL, “Organic Global Constitutionalism”, Leiden
Journal of International Law 2010, 550. Jus cogens equally has no predetermined norms since its definition is
purely formal, but its goal is still to come to generally recognized peremptory norms, instead of purely
organizing discourse.
1449
See supra, No. 167 et seq.
1450
M. KOSKENNIEMI, “Constitutionalism as a Mindset: Reflections on Kantian Themes about International
Law and Globalization”, Theoretical Inquiries in Law 2007, 11.

313
norms should be applied. And this aspect of constitutionalism based on jus cogens is
regarded positively by SCHWÖBEL.1451

B. Constitutionalism based on jus cogens as a Kantian project

346. Constitutionalism based on jus cogens is not only a liberal and liberal international
perspective on international law, it also embodies a particular liberal project; namely it
advocates a Kantian approach to international law and international relations. At first glance,
this might seem incorrect. A Kantian theory of international relations and international law
starts from the idea that justice at the national level and justice at the international level are
closely connected.1452 Since only democracies have a legitimate government, it advances the
democratic peace thesis that international peace and the rule of law at the international level
can only be attained by the pacific union of liberal democratic States. This flows from the
empirical “law” in international relations1453 that liberal democratic States (KANT’s
republics)1454 do not go to war with each other.1455 Thus, the reasoning goes that only a union
of these States can guarantee peace and the rule of law. Nonetheless, liberal States do fight

1451
C.E.J. SCHWÖBEL, “Organic Global Constitutionalism”, Leiden Journal of International Law 2010, 543,
referring to S. KADELBACH and T. KLEINLEIN, “International Law – A Constitution for Mankind? An Attempt
at Re-Appraisal with an Analysis of Constitutional Principles”, German Journal of International Law 2007,
345.
1452
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 1; Id., “The Kantian
Theory of International Law”, Columbia Law Review 1992, 53.
1453
Or at least close to an empirical law: J.S. LEVY, “Domestic Politics and War”, Journal of Interdisciplinary
History 1998, 662.
1454
Republican States and liberal democratic States will be considered the same and it can be convincingly
argued that KANT would agree with parliamentary democracy and human rights: H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 24 et seq; F.R. TESÓN, A Philosophy of International
Law, Boulder, Co., Westview Press, 1998, 3 et seq. Nonetheless, it is not granted that KANT was a supporter of
human rights. The autonomous, self-legislating individual is the goal and not negative liberty: A.
FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal Internationalist ‘Legacy’”, Review of
International Studies 2001, 224. Nowhere is this clearer than in his description of Africans and Tahitians.
KANT’s main concern was progress of “humanity” towards its moral end and only through history in mankind
governed by rational freedom can the full potential of humanity been shown: A. BEHNKE, “‘Eternal Peace’ as
the Graveyard of the Political: A Critique of Kant’s Zum Ewigen Frieden”, Millennium – Journal of
International Studies 2008, 525 et seq. Moreover, since the categorical imperative stressed duties over rights, it
has been defended that strong procedural restrictions against the State would be sufficient: P. CAPPS, “The
Kantian Project in Modern International Legal Theory”, European Journal of International Law 2001, 1005,
note 9.
1455
This thesis presumes that it is clear what is a liberal and a non-liberal State and that there is a clear
definition of war, which is doubted by CAVALLAR: G. CAVALLAR, “Kantian Perspectives on Democratic Peace:
Alternatives to Doyle”, Review of International Studies 2001, 239. Furthermore, there are instances where a
democratic State has intervened in the democratic process of another State, in order to replace the
democratically elected government. As SØRENSON remarks this comes close to war and the distinction between
such intervention and war might be academic. SØRENSON also comes to the conclusion that the thesis may not
apply between liberal democracies of the North and those of the South, if the latter might threaten economic
interests of the former: G. SØRENSON, “Kant and Processes of Democratization: Consequences for Neorealist
Thought”, Journal of Peace Research 1992, 404-405. On this account, the scope of the thesis becomes narrow
and might become indistinguishable from Empire: every intervention of a liberal State of the North can then be
justified by the negation of the true democratic character of the victim State.

314
illiberal States.1456 Therefore, the world is divided into liberal and non-liberal States, the latter
being excluded from the pacific union. Allowing non-liberal States in the pacific union would
endanger the goal of peace and the rule of law since peace as the absence of war cannot be
guaranteed towards non-liberal States. Hence, there is a division of the world into liberal and
non-liberal States, between an area ruled by law and a state of nature. Intervention or the use
of force against non-liberal States is legitimate and legal. The more democracies there are in
the world, the more the world will become inherently peaceful. Consequently, the spreading
of democracy and human rights if necessary by the use of force will in the end pacify the
world and bring perpetual peace, the main objective of KANT. In addition, TESÓN defends his
Kantian theory of international law equally on the legitimacy of liberal democratic States
because they guarantee the freedom of the individual citizens and human rights. Other States
have no legitimacy and therefore can be subjected to humanitarian intervention. Thus, even if
empirically the fact that democracies do not wage war against each other would not be
correct, spreading democracy and human rights is morally correct. For this reason
democracies should not allow non-liberal States to join the federation and have the right to
intervene in the affairs of those States.1457 On the basis of this summary account it is clear that
a constitutionalism based on jus cogens would be at odds with a Kantian theory of
international relations and law. Peremptory norms only come in existence if all States of the
international community accept that the norms belong to jus cogens and not all of these States
will be liberal democratic States.

347. The previously sketched Kantian theory of international law and international relations
would bar any claim that a constitutionalism based on jus cogens is Kantian. This is correct if
and only if the defended Kantian theory is an accurate account of KANT’s theory and no other
readings can be defended. The latter is not the case, since there are different legacies of
Kantian thought in philosophy and international relations theory.1458 In addition, the Kantian
theory as hitherto defended is in all likelihood not a completely correct representation of
KANT’s theory as set out in Zum ewige Frieden and other works, or at the very least a one-
sided reading of the theory.1459 Therefore, before explaining how a constitutionalism based on

1456
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 9-14; Id., “The
Kantian Theory of International Law”, Columbia Law Review 1992, 78-79.
1457
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 14-16; Id., “The
Kantian Theory of International Law”, Columbia Law Review 1992, 81 et seq. Nonetheless, this Kantian theory
would not represent Kantian thought if it can be demonstrated that KANT did not exclude non-liberal States and
generally prohibited force against every State, liberal or not, despite KANT’s unquestionable support to
republican States and his view that a republican State is the most legitimate form of government.
1458
A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal Internationalist ‘Legacy’”, Review
of International Studies 2001, 215; B. OREND, “Kant on International Law and Armed Conflict”, Canadian
Journal of Law and Jurisprudence 1998, 330.
1459
A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal Internationalist ‘Legacy’”, Review
of International Studies 2001, 214; G. CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to
Doyle”, Review of International Studies 2001, 230; TESÓN does not claim that his theory is a faithful textual
representation of Kant’s ideas in Towards Eternal Peace, but that it is a modern reconstruction that is still
accurate with KANT’s ideas: F.R. TESÓN, “The Kantian Theory of International Law”, Columbia Law Review
1992, 55. This however does not mean that the democratic peace theory or the ethical approach to international
law is wrong in itself or that the arguments used by the proponents of the theories are wrong. It merely
demonstrates that recourse to KANT as support of the thesis is not as evident as claimed.

315
jus cogens reflects a Kantian approach to international law, my reading of KANT’s theory will
be set out.

348. In what follows I will translate Zum ewige Frieden as Towards Eternal Peace, whereas
most translations use Perpetual Peace.1460 It is submitted that the word “eternal” better
reflects the ideal and transcendental dimensions of the theory.1461 “Perpetual” indicates that
the process towards peace is mechanical and can be attained, after which it will endure for a
long duration without foreseeable end.1462 If all States will become republican, form a
federation and cosmopolitan law is respected, the steps for perpetual peace have been realized
and perpetual peace will be established. “Eternal” on the other hand indicates that true peace
is a project that can never be fully attained since it is not of and for this world, but almost a
form of religious belief.1463,1464 Thus, KANT regarded eternal peace not as an actual state of
affairs and it may be questioned that it will ever be realized even if all States would become
liberal democracies. KANT’s reference to the innkeeper’s sign is ominous: unlike perpetual
peace, eternal peace can never be achieved, but in death, which will be the ironic result if
KANT’s theory is not followed.1465 However, since it is not logically impossible, one has a
moral duty to strive for it in the full realization that it might never be attained,1466 hence the
inclusion of the word “towards”.1467 If one wants eternal peace, one has to strive for it every
day at the personal, national and international level.

1460
J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International Law
2000, 126. There are also historical reasons to choose for the translation eternal peace: important peace
instruments were labelled “eternal”: Decree of Eternal Pacification of 1495 (abolishing private warfare).
1461
See: A. BEHNKE, “‘Eternal Peace’ as the Graveyard of the Political: A Critique of Kant’s Zum Ewigen
Frieden”, Millennium – Journal of International Studies 2008, 513-514.
1462
J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International Law
2000, 126; W. SCHWARZ, “Kant’s Philosophy of Law and International Peace”, Philosophy and
Phenomenological Research 1962, 73.
1463
KANT readily admits this in the Metaphysics of Morals: eternal peace by way of a world State is not
attainable, the alternative being a weaker form of governance whereby States voluntarily ally themselves and
continuously come closer to each other, without ever reaching the ultimate eternal peace: I. KANT, “The
Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press,
1991, 171; J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International
Law 2000, 141-142.
1464
Even if the democratic peace thesis would not be correct, that would not impact the strive for eternal peace,
even against all odds, because it is in the first place a moral duty: see I. KANT, “On the Common Saying: ‘This
may be True in Theory, but It does not Apply in Practice’”, in H.S. REISS, Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 92; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c.,
174; G. CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to Doyle”, Review of
International Studies 2001, 248; A. HURELL, “Kant and the Kantian Paradigm in International Relations”,
Review of International Studies 1990, 199.
1465
T. MERTENS and E. VAN ELDEN, Immanuel Kant, Naar de eeuwige vrede, een filosofisch ontwerp,
Amsterdam, Boom, 2004, 11-12.
1466
KANT’s Towards Eternal Peace thus not only describes an ideal, but also contains the moral principles upon
which the international level should be based: F.R. TESÓN, A Philosophy of International Law, Boulder, Co.,
Westview Press, 1998, 23; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 57-58.
1467
I hereby follow the Dutch translation of Zum ewigen Friede into “Naar eeuwige vrede”: T. MERTENS and E.
VAN ELDEN, Immanuel Kant, Naar de eeuwige vrede, een filosofisch ontwerp, Amsterdam, Boom, 2004, 12.

316
1. KANT’s theory for eternal peace

349. In his essay Towards Eternal Peace KANT developed a multi-layered theory on how to
achieve peace at the national and international level. The central idea is that States, like
individuals, have to escape the lawless state of nature and enter a federation of States
governed by law by concluding a social contract.1468 Precisely as individuals are under an
obligation to leave the state of nature, so States are obliged to leave the state of nature
between themselves. In Towards Eternal Peace – more or less constructed as a peace treaty –
KANT proposes six Preliminary and three Definitive Articles to turn away from this state of
nature. The exact meaning and purpose of the distinction between Preliminary and Definitive
Articles has generated some debate.1469 Without going into the details of the debate, the
Preliminary Articles should create the ideal environment in which States can form the
federation and leave the state of nature to be governed by law.1470 Logically the Preliminary
Articles are not necessary requirements since the Definitive Articles would suffice on their
own. Moreover, they seem to be mere examples on how to create the perfect circumstances to
form the federation, since KANT later added other means to bring about the stage before the
association of States.1471 The Definitive Articles are hence much more important.
Nonetheless, as FISCH has rightly remarked it can be questioned whether the Preliminary
Articles can be effective in the state of nature: if there is no law and no impartial
implementation of law, adding obligations has no effect.1472 Therefore, it can be argued that
KANT is a sorry comforter too.1473 However, this minimizes the revolutionary character of the
Preliminary Articles. States have to conclude a genuine peace treaty in which they renounce
the use of force and not merely peace treaties that give each side time to regain strength;
States should renounce wars in a time where wars were permitted. Rulers should not treat
States as their personal property, which negates the self-governing people living in the State
and only creates new dynastic wars; the abolishing of standing armies will give a clear sign
that States do not aim to wage war anymore; the prohibition on amassing of debt for waging

1468
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 102; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c., 171.
1469
See: J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International
Law 2000, 128 et seq. As TESÓN has pointed out the debate is not purely textual, but concerns two readings of
Kant’s essay, one “realist” reading that emphasises the Preliminary Articles which focuses on States and their
rights and one “liberal” reading that stresses the importance of the Definitive Articles. On this point I concur
with TESÓN that the Definitive Articles form the core of the Kantian peace project: F.R. TESÓN, A Philosophy of
International Law, Boulder, Co., Westview Press, 1998, 24; Id., “The Kantian Theory of International Law”,
Columbia Law Review 1992, 58-59.
1470
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 24; Id., “The Kantian
Theory of International Law”, Columbia Law Review 1992, 59-60; J. MACMILLAN, “Immanuel Kant and the
Democratic Peace”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge
University Press, 2006, 70; T. MERTENS and E. VAN ELDEN, Immanuel Kant, Naar de eeuwige vrede, een
filosofisch ontwerp, Amsterdam, Boom, 2004, 14.
1471
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 168-169.
1472
J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International Law
2000, 139-141.
1473
KANT followed VATTEL in many respects: C. COVELL, The Law of Nations in Political Thought, A Critical
Survey from Vitoria to Hegel, Basingstoke, Palgrave MacMillan, 2009, 185; A. HURELL, “Kant and the Kantian
Paradigm in International Relations”, Review of International Studies 1990, 187-188.

317
wars will cut off the financial resources of States to wage endless wars;1474 the prohibition to
violently intervene in another State would seriously limit the cause of international and
internal wars; and the prohibition to use certain methods and means would prevent that wars
would slip into a spiral of increasingly worse atrocities that would make the conclusion of
peace much harder. Yet, if all the Preliminary Articles are fulfilled, why would there be a
need for the three Definitive Articles? If States would implement the Preliminary Articles
there would be no hostilities or no reasons to go to war anymore and peace would be
established. This might be correct, but as KANT remarks the absence of violence does not
mean that there is a state of peace governed by law.1475 If States live next to each other
without hostilities or are isolated from each other, this does not entail that their relations are
governed by law. The state of peace can only be truly realised by the implementation of the
three Definitive Articles, the consecration of the exit out of the state of nature.1476 First, the
civil constitution of each State must be republican; second, States have to join a federation of
free States; third, cosmopolitan law is limited to conditions of universal hospitality. There is
no chronological order between the three Definite Articles: all three have equal importance
and should be realized in their respective domain of public right in order to have eternal
peace.1477 Nonetheless, two questions can be raised. If all States have to become republics,
does this entail that KANT meant to exclude non-liberal democratic States from the
federation? Second, can liberal democratic States use force against non-liberal democratic
States to change the regimes or to uphold the values of liberal democratic States?

350. The ideal approach to KANT’s essay seems to indicate a positive answer to both these
questions. TESÓN, who focuses on this aspect in his Kantian theory indeed comes to the
conclusion that only an alliance of free, republican States can guarantee world peace since the
internal constitution of a State and its external behaviour are inextricably linked.1478 Only the
constitution of a republican State is devoted to the freedom of its citizens. It is also the most
rational and hence morally good constitution. A republic is a State that honours three
principles, the freedom of its members, dependence of anyone on a single common
legislation, and the equality of the citizens.1479 The first element of a republican State flows

1474
KANT had witnessed such a war in which France was defeated by Great Britain (KANT’s reference to “a
commercial people in the present century”) that used public debts to finance its endless wars against France
leading to the defeat of France in 1763; on this issue: I. MORRIS, Why the West Rules – For Now, London,
Profile Books, 2011, 485-488.
1475
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 98; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c., 1991, 165.
1476
J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International Law
2000, 135.
1477
J. MACMILLAN, “A Kantian Protest against the Peculiar Discourse of Inter-Liberal State Peace”, Millennium
– Journal of International Studies 1995, 555-556; J. MACMILLAN, “Immanuel Kant and the Democratic Peace”,
in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge University Press, 2006,
61. Nonetheless, KANT regarded the creation of a federation of States as the necessary condition for attaining a
perfect civil constitution: I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS,
Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 47; B. JAHN, “Classical Smoke,
Classical Mirror: Kant and Mill in Liberal International Relations Theory”, in B. JAHN (ed.), Classical Theory
in International Relations, Cambridge, Cambridge University Press, 2006, 189.
1478
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 3; Id., “The Kantian
Theory of International Law”, Columbia Law Review 1992, 61.
1479
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 99.

318
from KANT’s moral philosophy which centres on the autonomous individual, i.e. an individual
that lives according to the categorical imperative. KANT has offered three version of the
categorical imperative, which are however three formulations of the same principle, of which
only two will be discussed. The first version of the categorical imperative reads: “Act only on
that maxim through which you can at the same time will that it should become a universal
law”.1480 Although the maxim is abstract due to KANT’s emphasis that a moral philosophy is a
priori,1481 it is not meaningless since it lays down what it means to be an autonomous person.
An autonomous person acts not on her own desires or interests, but will inquire whether the
action she intends to undertake can become a universal law, i.e. a standard that would apply to
all situations. An autonomous individual will use reason – the formulation of a universal law
– to assess whether the behaviour is morally justified. In addition, this formula of the
categorical imperative also obliges us to consider other persons as autonomous agents with
rights and obligations.1482 As TESÓN rightly points out the first formulation of the categorical
imperative advances the universality of human rights: a right can only be morally justified if it
can at the same time be universalized.1483 The second version of the categorical imperative is
formulated as “Act in such a way that you always treat humanity, whether in your own person
or in the person of any other, never simply as a means, but always at the same time as an
end”.1484 Since all human being are capable of being autonomous, rational agents a person has
to respect this autonomy in social interactions by not using other human beings as mere
means to achieve a goal; human beings have an intrinsic value, that must at all times be
respected.1485 Therefore, in one’s actions, even if they are based on a universal law, one
cannot employ means that would ignore the humanity of other autonomous human beings
(and one self’s).

351. Taking the two versions of the categorical imperative together explains why individuals
have a duty to leave the state of nature and why autonomous persons would do so by creating
a republican State that respects the freedom of its members. For KANT the state of nature is a
situation of lawless freedom, where every human being or State can do as they please, as
opposed to the rational freedom within civil society, in which everyone’s freedom is
guaranteed by law as long as it does not harm the freedom of others.1486 In this respect KANT
partially follows HOBBES in that the state of nature is not a desirable situation and has to be
abandoned. Nevertheless, for KANT the state of nature is not necessarily a violent state of war
of all against all, but the possibility that such a violent and brutal war may ensue at any

1480
I. KANT, “Groundwork of the Metaphysics of Morals”, in H.J. PATON, The Moral Law, London,
Hutchinson, 1948, 88.
1481
Ibid., 55.
1482
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 4 Id., “The Kantian
Theory of International Law”, Columbia Law Review 1992, 63.
1483
Ibid., 4; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 64.
1484
I. KANT, “Groundwork of the Metaphysics of Morals”, in H.J. PATON, The Moral Law, London,
Hutchinson, 1948, 96.
1485
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 4 Id., “The Kantian
Theory of International Law”, Columbia Law Review 1992, 64.
1486
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 137-138; A. HURELL, “Kant and the Kantian Paradigm in International Relations”,
Review of International Studies 1990, 186.

319
time.1487 Furthermore, HOBBES believes that human beings in the end leave the state of nature
out of fear which will induce them to give up all their rights and establish the Leviathan.
KANT does not accept such an irrational explanation. For him individuals will precisely leave
the state of nature because they are autonomous, rational actors that will conclude that they
have a moral duty to leave this state. Indeed, regardless of the state of nature or the state of
law an autonomous, rational person will act on the basis of a universal law. Nevertheless, if an
autonomous person wants to ensure the universal law on which she grounds her action in the
state of nature, in the end she will have to use force herself and thereby disregard the
humanity in others; her actions will not respect the second formulation of the categorical
imperative. The unilateral use of force to back a claim of what is right can never be
universalized as required by the first formulation of the categorical imperative and does not
respect the humanity of others as demanded by the second formulation. Therefore in the state
of nature there is no law and no justice since everything depends on a unilateral assessment of
what is right and the outcome of the use of force to enforce this unilateral assessment.1488 It
explains the statement of KANT that in the state of nature there cannot be an unjust enemy
since the State of nature is itself an injustice.1489 It also clarifies KANT’s reprimand that
GROTIUS, PUFENDORF and VATTEL are mere sorrow comforters because they pretend that
there is something as law in the state of nature, while their “codes do not and cannot have the
slightest legal (emphasis added) force, since states as such are not subject to a common
external constraint”1490 and while they still allow States to have recourse to war.1491 In order
to escape this state of nature rational individuals will conclude a social contract in which they
recognize each other’s worth, autonomy and freedom and establish a State that guarantees the
freedom of its members.1492

1487
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 98.
1488
Ibid., 96 and 104-105; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c., 1991, 165 and 167; W.
SCHWARZ, “Kant’s Philosophy of Law and International Peace”, Philosophy and Phenomenological Research
1962, 74-75; A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal Internationalist
‘Legacy’”, Review of International Studies 2001, 219; A. FRANCESCHET, “ ‘One Powerful and Enlightened
Nation’: Kant and the Quest for a Global Rule of Law”, in B. JAHN (ed.), Classical Theory in International
Relations, Cambridge, Cambridge University Press, 2006, 77; B. OREND, “Kant on International Law and
Armed Conflict”, Canadian Journal of Law and Jurisprudence 1998, 343; J. WALDRON, “Kant’s Legal
Positivism”, Harvard Law Review 1995-1996, 1546.
1489
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 170. Other indications that for KANT that escaping the state of nature is the central issue
can be found in the prohibitions of certain means and methods during wars, since these encourage vices that
will contaminate the state of peace: I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s
Political Writings, Cambridge, Cambridge University Press, 1991, 97; KANT also condemns the colonial
practice in the Sugar Islands not only because of the use of slavery, but also because it is a place where sailors
are trained for wars in Europe: Ibid., 107.
1490
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 103.
1491
G.W. BROWN, Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009, 90-91; J.
MACMILLAN, “Immanuel Kant and the Democratic Peace”, in B. JAHN (ed.), Classical Theory in International
Relations, Cambridge, Cambridge University Press, 2006, 70.
1492
I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in Practice’”, in
H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 73; F.R. TESÓN, A
Philosophy of International Law, Boulder, Co., Westview Press, 1998, 5; Id., “The Kantian Theory of
International Law”, Columbia Law Review 1992, 64.

320
352. The second and third characteristic of the republic are related to the protection of the
freedom of its citizens. The second characteristic of a republic is that its subjects live under
one single common legislation, from which all other legal acts derive. All legal acts derive
from one constitution that in turn is the result of a social contract between autonomous and
rational individuals. Since the constitution of a republic is itself right and rational, all legal
acts that are based on it are potentially right since in a republic the legislators represent the
united will of the citizens and legislators should phrase their laws in such a way that all the
citizens can possibly agree to them.1493 In other words, legislators have to propose laws that
can be rationally justified by the constitution, which is in turn in accordance with the
categorical imperative, and such laws need to be obeyed. Obedience to the law in a republic is
hence based on the rationality of its laws to which each citizen, as a rational agent, could have
reasonably given consent, because those laws reflect what is right.1494 The third element of a
republic is the equality of citizens before the law. Since the republican constitution is the
result of a social pact in which the members of society guarantee the freedom of each other in
so far as such freedom does not interfere with the freedom of others in accordance with the
categorical imperative, everyone has the same freedom that can only be curtailed by laws that
are reasonable, i.e. laws to which a rational person can give her consent. Laws that would
create inequalities that cannot reasonably be justified, such as those that are not based on
morally relevant criteria, are therefore unjust and cannot be based on the constitution.1495

353. From the foregoing it is clear that a republic is the only rational mode of governance
because it is just. It respects the freedom and equality of its members and it creates a social
order that is based on reason where coercion is the result of a general law which through
representation is based on the rational consent of all members of society.1496 Only in a
republican State is the horizontal social contract between the citizens based on justice and the
vertical contract between the citizens and the State on representation.1497 Then and only then
is a State internally legitimate. For KANT it is the republican States that offer the possibility to
achieve eternal peace.1498 Since a decision to go to war would have to be taken by all the
citizens of the republic, this would mean that they have to agree to expose themselves to all
the dangers of war. Hence, due to their self-interest the citizens of a republic will be reluctant
to participate in a war. TESÓN adds to this argument as to the peaceful nature of republics, the
political constellation of a republic characterized by a separation of powers, the education of
citizens in what is right and the openness of democracies to international trade.1499 All of this
is confirmed by the democratic peace thesis that democracies do not wage war between
themselves. In addition to these factual explanations, TESÓN invokes a normative reason:

1493
I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in Practice’”, in
H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 79.
1494
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 6; Id., “The Kantian
Theory of International Law”, Columbia Law Review 1992, 67.
1495
Ibid., 7; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 69.
1496
See: I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 99-100.
1497
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 57.
1498
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 100.
1499
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 10-11; Id., “The
Kantian Theory of International Law”, Columbia Law Review 1992, 75-77.

321
international law should be based on the principles of human rights and democracy since this
is morally right. International law can only be justified if it reflects the principles of the
internal constitution of a republican State, since those principles are based on the categorical
imperative that lays down universal laws. The only manner in which international law can
protect human rights and democracy is by requiring that all States become republics since it is
only under this constitution that human rights will be advanced on the internal and the
international level.1500 Thus, on both the factual and normative plane, the conclusion seems
justified that only republican States can become members of the federation.

354. If international law should be based on a federation of republican or liberal democratic

States, this does not necessarily entail that the members of the federation are allowed to
intervene in non-members, if necessary by force. Non-republics may gradually transform
themselves into republics and then join the federation. Nevertheless, TESÓN argues that liberal
democratic States have the right to intervene. In order to escape the international state of
nature, republics should conclude a social pact not to create a world State, but to agree to have
their international relations governed by international law, based on decentralized
enforcement.1501 Since republics represent autonomous human beings and have a right
constitution, their autonomy should be respected and they can never be subjected to outside
intervention. Furthermore, since republics are peaceful their relations will be governed
through international law and their disputes will be settled peacefully. The governments of
non-republics however do not represent their people and are considered outlaws. Although
agreements that benefit the peoples of tyrannical States are valid, agreements with their
government are not, although they may be respected out of expediency.1502 Nonetheless, since
they do not represent the individuals of their society, non-republican States do not benefit
from the non-intervention principle as liberal democracies do: States are only sovereign if
they are internally legitimate.1503 In certain cases intervention might include the use of force
in order to guarantee the rights of the people of tyrannical States against their government.
Although TESÓN notes the pacifism of KANT that would only allow for war in self-defence, he
argues that KANT is inconsistent in this respect by on the one hand formulating that only
republican States have a right constitution and on the other hand by upholding a general
prohibition of intervention. Since only republics can guarantee peace the internal constitution
of tyrannical States poses a danger to the federation of republics. Furthermore, a liberal,
Kantian theory of international law starts from the autonomy of the individual – it defends
normative individualism – and it would be inconsistent with this starting point to refuse a
right to intervene in non-republican States in extreme case of serious human rights
violations.1504 Intervention is only allowed if done by a republic for the cause of protecting
human rights against an illegitimate government (in case of an illegitimate vertical social
contract) or an illegitimate State (in case of illegitimate horizontal contract), provided the
intervention is necessary and proportionate and the individual rights of the population of the
intervened State are respected as far as possible.1505

1500
F.R. TESÓN, A Philosophy of International Law, Boulder, Co., Westview Press, 1998, 14-15; Id., “The
Kantian Theory of International Law”, Columbia Law Review 1992, 82-83.
1501
Ibid., 16-17; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 85-86.
1502
Ibid., 19; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 89.
1503
Ibid., 57; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 92.
1504
Ibid., 19-21; Id., “The Kantian Theory of International Law”, Columbia Law Review 1992, 92-93.
1505
Ibid., 59-65.

322
355. The ideal reading of Towards Eternal Peace as set out by TESÓN would lead to the
conclusion that the federation should be limited to republican States and that republican States
could use force to intervene in non-republican States. As for membership of the federation,
there is general agreement that KANT considered republics to be more peaceful than non-
republics. It is also correct that he thought that eternal peace would be more guaranteed if all
States would have a republican constitution.1506 Hence, it could be expected that KANT would
limit membership of the federation to republican States. Nonetheless, KANT never explicitly
states that eternal peace between non-republican and republican States is never possible or
that a republican constitution necessarily would be the only constitution possible to safeguard
eternal peace. First, KANT is generally cautious when considering whether eternal peace can
only be guaranteed in a world of republican States. In Towards Eternal Peace he states that “it
offers a prospect of attaining the desired result”;1507 in Metaphysics of Morals this cautious
assertion is toned down: global republicanism is perhaps the most suitable manner in
establishing eternal peace.1508 Moreover, the supporting argumentation adduced by KANT that
republics would be less prone to war is weak. In republics the people would not go to war
because they would bear the brunt of the war. Yet, a people of a republic might be as bellicose
as the rulers of a non-republic and anticipate that the benefits of war will be greater than the
costs or go to war for nationalist purposes.1509

356. Despite the foregoing, it may be argued that KANT’s caution was unwarranted and that
it has only recently been established that liberal democratic States are inherently more
peaceful than other States, at least towards each other. Thus, there is a need to limit
membership of the federation to those States. However, this assumes that there is a neat
distinction between republican and non-republican States in KANT’s philosophy. This is not
the case. For KANT a republican State is an ideal that is more or less present in States, but is
hard to completely realize and maintain.1510 Since a clear distinction between republican and

1506
J. FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International Law
2000, 134; J. MACMILLAN, “A Kantian Protest against the Peculiar Discourse of Inter-Liberal State Peace”,
Millennium – Journal of International Studies 1995, 554 and 559; J. MACMILLAN, “Immanuel Kant and the
Democratic Peace”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge
University Press, 2006, 59; A. FRANCESCHET, “Popular Sovereignty or Cosmopolitan Democracy? Liberalism,
Kant and International Reform”, European Journal of International Relations 2000, 285; A. FRANCESCHET,
“‘One Powerful and Enlightened Nation’: Kant and the quest for a Global Rule of Law”, in B. JAHN (ed.),
Classical Theory in International Relations, Cambridge, Cambridge University Press, 2006, 85; A. HURELL,
“Kant and the Kantian Paradigm in International Relations”, Review of International Studies 1990, 195; G.
CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to Doyle”, Review of International
Studies 2001, 233-234; A. BEHNKE, “‘Eternal Peace’ as the Graveyard of the Political: A Critique of Kant’s
Zum Ewigen Frieden”, Millennium – Journal of International Studies 2008, 519.
1507
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 100.
1508
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 174.
1509
See: J. HABERMAS, The Inclusion of the Other, Studies in Political Theory, Cambridge, Mass., MIT Press,
1998, 172; G. CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to Doyle”, Review of
International Studies 2001, 238-239.
1510
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 101, 112 and 118; I. KANT, “The Metaphysics of Morals”, in H.S. REISS,
Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 163; J. MACMILLAN, “A Kantian
Protest against the Peculiar Discourse of Inter-Liberal State Peace”, Millennium – Journal of International

323
non-republican States cannot be given, it would be hard to restrict the membership to the
federation in such a manner.

357. Second, KANT regards the federation of States to be the pinnacle of eternal peace, not
the internal constitution of its members.1511 In particular, KANT considered the adoption of a
republican constitution unattainable if States continued to exist in the state of nature.1512 In
order to escape the state of nature at the international level States have to conclude a social
contract, which is however limited to a horizontal social contract, in which States undertake
the moral self-obligation to respect each other’s freedom and to settle their disputes
peacefully, without the recourse to war, in accordance with international law.1513 The
federation is limited to the protection of its members against external aggression whilst at the
same time refraining from intervening in the internal disagreements of the members.1514 It is
in fact a collective security agreement that does not consider the constitution of States that
want to join.1515 There is no reason why a non-republican State which is sincerely willing to
undertake this obligation should be excluded from the federation. Hence, to enter a state of
law at the international level by establishing the federation will create peace and at the same
time spread republicanism within States.1516 Although KANT considers that a powerful and
enlightened republic may set the good example and may start the federation, he also states
that such a republic will be the focal point of States, not only republican States.1517 Another
indication that the federation of States is not limited to republican States is provided by
KANT’s example of the States General of The Hague where representatives of republics and

Studies 1995, 553; J. MACMILLAN, “Immanuel Kant and the Democratic Peace”, in B. JAHN (ed.), Classical
Theory in International Relations, Cambridge, Cambridge University Press, 2006, 58; G. CAVALLAR, “Kantian
Perspectives on Democratic Peace: Alternatives to Doyle”, Review of International Studies 2001, 233-235; A.
FRANCESCHET, “ ‘One Powerful and Enlightened Nation’: Kant and the Quest for a Global Rule of Law”, in B.
JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge University Press, 2006, 81-82.
1511
See: I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 47; J. FISCH, “When Will Kant’s Perpetual Peace be
Definitive?”, Journal of the History of International Law 2000, 134-135; A. BEHNKE, “‘Eternal Peace’ as the
Graveyard of the Political: A Critique of Kant’s Zum Ewigen Frieden”, Millennium – Journal of International
Studies 2008, 518.
1512
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 47; I. KANT, “Perpetual Peace: A Philosophical
Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 118.
1513
J. HABERMAS, The Inclusion of the Other, Studies in Political Theory, Cambridge, Mass., MIT Press, 1998,
169.
1514
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 165.
1515
G. CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to Doyle”, Review of International
Studies 2001, 244; B. JAHN, “Classical Smoke, Classical Mirror: Kant and Mill in Liberal International
Relations Theory”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge
University Press, 2006, 187.
1516
H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 33-34; J.
MACMILLAN, “A Kantian Protest against the Peculiar Discourse of Inter-Liberal State Peace”, Millennium –
Journal of International Studies 1995, 558; A. HURELL, “Kant and the Kantian Paradigm in International
Relations”, Review of International Studies 1990, 186-187.
1517
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 104.

324
courts met to settle disputes as a federation of States.1518 Nonetheless, proponents of the
restriction of membership of the federation to liberal democratic States refer to the wording of
the second Definitive Article that the federation should be composed of “free” States. Yet,
KANT did not refer to the internal constitution of the member States, but to the sovereignty of
the members: freedom meant for KANT in the first place to be autonomous or self-legislating.
Thus, a free State is a sovereign State.1519 Moreover, freedom is just one element of a republic
and therefore a free State and republican State are not synonyms.1520

358. An affirmative answer on the second issue – whether republics can use force against
non-republics – is equally inconsistent with KANT’s ideas developed in Towards Eternal
Peace and elsewhere. First, in order to be operative there has to be a clear distinction between
republics and non-republics, which is not the case. From an unrestricted membership of the
federation and its limited goal it also flows that forceful intervention into another State is
unacceptable to KANT. Even, if one would accept that the federation is limited to republics,
this does not entail that republics can use force against non-republics. Between the members
of the federation a peace may have been established, but the relations between the federation
and outsiders would be governed by the Preliminary Articles, which prohibit intervention.1521
In any event, KANT was not in favour of war or any other forceful intervention in a State since
war was not the means to pursue rights,1522 even if there were good reasons to forcefully
intervene.1523 On this account, one violation of rights does not justify another violation.1524
KANT only makes an exception to the general rule against intervention in case of an unjust

1518
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 171.
1519
See: I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 117; G. CAVALLAR, “Kantian Perspectives on Democratic
Peace: Alternatives to Doyle”, Review of International Studies 2001, 244-245; A. BEHNKE, “‘Eternal Peace’ as
the Graveyard of the Political: A Critique of Kant’s Zum Ewigen Frieden”, Millennium – Journal of
International Studies 2008, 522.
1520
See: I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 99; J. MACMILLAN, “A Kantian Protest against the Peculiar
Discourse of Inter-Liberal State Peace”, Millennium – Journal of International Studies 1995, 557; J.
MACMILLAN, “Immanuel Kant and the Democratic Peace”, in B. JAHN (ed.), Classical Theory in International
Relations, Cambridge, Cambridge University Press, 2006, 62-63; G. CAVALLAR, “Kantian Perspectives on
Democratic Peace: Alternatives to Doyle”, Review of International Studies 2001, 245.
1521
Such an argument is made by MERTENS and VAN ELDEN: T. MERTENS and E. VAN ELDEN, Immanuel Kant,
Naar de eeuwige vrede, een filosofisch ontwerp, Amsterdam, Boom, 2004, 18 and 20. TESÓN limits the
prohibition of intervention to intervention in republics: F.R. TESÓN, A Philosophy of International Law,
Boulder, Co., Westview Press, 1998, 21. Nevertheless, this is not convincing since the prohibition is listed
among the Preliminary Articles, the norms that have to ensure that the Definite Articles materialize. Thus, the
prohibition of intervention is helping to reach the stage of eternal peace by inter alia the adoption of a
republican constitution, which logically implies that before not all States will have a republican constitution.
1522
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 174; A. HURELL, “Kant and the Kantian Paradigm in International Relations”, Review of
International Studies 1990, 186; G. CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to
Doyle”, Review of International Studies 2001, 241.
1523
In The Metaphysics of Morals, KANT argues against colonialism, even if there would be good reasons for
the actions of the colonizing powers, because the means employed are unjust: I. KANT, “The Metaphysics of
Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 173.
1524
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 96.

325
enemy that can be forced to accept a constitution to suppress its war-prone nature.
Importantly, an unjust enemy is not defined by its internal constitution, but as one that would
make peace amongst nations impossible and would continue the state of nature. This
resembles more an aggressor State than a non-republican State.1525

359. Second, more importantly, the abstention of the use of force between States is the sole
means to end the state of nature at the international level, a state that all States, republican and
non-republican envelops. A federation solely comprised of liberal democratic States that is
allowed to use force to spread its values will not absolve the state of nature, but merely re-
arranges States in two groups.1526 KANT’s concern to escape the state of nature explains why
according to the fifth Preliminary Article States may not intervene in the constitution and
government of other States, except when that State has collapsed: in such case the State has
returned to the state of nature – anarchy – and then there is no legal impediment to
intervene.1527 It is also the reason behind KANT’s refusal to accept a legal right to revolution:
this would be a return to the State of nature and there can be no legal right to return to that
State.1528 For KANT, as long as a State has a legal constitution despite the fact that it was only
in a small measure right, this is better than having no constitution at all.1529 The pure fact that
individuals have escaped the state of nature by the conclusion of a social pact should be
respected even if the constitution of the State they have formed is not in accordance to what is
right. The respect one should still have for such a society is reflected in the second
Preliminary Article which prohibits that States are transacted, since it is not an object, but a
society of persons whose autonomy to conclude the social contract should be respected.1530
Outside intervention in a State’s constitutional order equally disrespects the autonomy of the

1525
T. MERTENS and E. VAN ELDEN, Immanuel Kant, Naar de eeuwige vrede, een filosofisch ontwerp,
Amsterdam, Boom, 2004, 15; J. MACMILLAN, “A Kantian Protest against the Peculiar Discourse of Inter-
Liberal State Peace”, Millennium – Journal of International Studies 1995, 559; G. CAVALLAR, “Kantian
Perspectives on Democratic Peace: Alternatives to Doyle”, Review of International Studies 2001, 243-244.
Nevertheless, an unjust enemy is not limited to a State that commits aggression, but may also include States that
commit severe human rights violations: infra, No. 367. The main point however is that such a State is identified
by its actions and behaviour and not necessarily its regime type, although a republican State is less likely to
engage in such a conduct.
1526
G. CAVALLAR, “Kantian Perspectives on Democratic Peace: Alternatives to Doyle”, Review of International
Studies 2001, 245; A. HURELL, “Kant and the Kantian Paradigm in International Relations”, Review of
International Studies 1990, 193; B. JAHN, “Classical Smoke, Classical Mirror: Kant and Mill in Liberal
International Relations Theory”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge,
Cambridge University Press, 2006, 190.
1527
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 96.
1528
I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in Practice’”, in
H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 81-82; I. KANT, “The
Metaphysics of Morals”, in H.S. REISS, l.c., 145; H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 31; G.W. BROWN, Grounding Cosmopolitanism, Edinburgh, Edinburgh University
Press, 2009, 97; A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal Internationalist
‘Legacy’”, Review of International Studies 2001, 220.
1529
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 118; A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s
Liberal Internationalist ‘Legacy’”, Review of International Studies 2001, 220; G. CAVALLAR, “Kantian
Perspectives on Democratic Peace: Alternatives to Doyle”, Review of International Studies 2001, 242.
1530
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 94.

326
people and might exactly lead to a reversion into the state of nature.1531 Moreover, by
preserving international peace, non-republics can be steadily transformed towards republics.
If a non-republican State is forced to defend itself against external aggression, it might
strengthen its authoritarian character because the people rally around its flag. If it can benefit
from peace, it cannot use the excuse of external threats to stall constitutional reforms.1532

360. The foregoing does not in any way entail that KANT legitimised despotism. KANT is
after all a universalist in that he is convinced of the universal validity of moral laws that are
formulated by an autonomous individual. Despotic regimes that hinder the freedom of
autonomous subjects are therefore not legitimate. Nonetheless, he rejects any attempt to
coerce those laws upon others and other States.1533 Instead of coercion, KANT believed in a
self-conscious, gradual reform within non-republican States towards a more republican
constitutionalism, a reform that was however initiated by the sovereign and not its people.1534
In addition, KANT relied on cosmopolitan right, albeit limited to “the conditions of Universal
Hospitality” or peaceful interaction between peoples, to create ties of mutual interests, to
enlighten their States on how to conduct peaceful and orderly relations and to slowly create a
universal community based on universally accepted moral laws.1535 In modern terms, KANT
advocates soft power to advance eternal peace. In addition, cosmopolitan right would also
bring more trade and trade is incompatible with war.1536 Finally, KANT believed in a
teleological history and a plan in nature that would vindicate the objective and autonomous
force of reason and finally establish eternal peace.1537 In the end, mankind, from State rulers

1531
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 95 and 104; J. MACMILLAN, “A Kantian Protest against the Peculiar
Discourse of Inter-Liberal State Peace”, Millennium – Journal of International Studies 1995, 560; B. OREND,
“Kant on International Law and Armed Conflict”, Canadian Journal of Law and Jurisprudence 1998, 348 and
350.
1532
See: I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 118; G. CAVALLAR, “Kantian Perspectives on Democratic
Peace: Alternatives to Doyle”, Review of International Studies 2001, 245-246; A. BEHNKE, “‘Eternal Peace’ as
the Graveyard of the Political: A Critique of Kant’s Zum Ewigen Frieden”, Millennium – Journal of
International Studies 2008, 520.
1533
A. HURELL, “Kant and the Kantian Paradigm in International Relations”, Review of International Studies
1990, 202.
1534
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 146; A. FRANCESCHET, “Sovereignty and Freedom: Immanuel Kant’s Liberal
Internationalist ‘Legacy’”, Review of International Studies 2001, 222; B. OREND, “Kant on International Law
and Armed Conflict”, Canadian Journal of Law and Jurisprudence 1998, 348.
1535
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 105 et seq; A. HURELL, “Kant and the Kantian Paradigm in International
Relations”, Review of International Studies 1990, 203-204.
1536
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 114.
1537
See: I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 41 et seq; I. KANT, “On the Common Saying: ‘This
may be True in Theory, but It does not Apply in Practice’”, in H.S. REISS, l.c., 88 et seq; I. KANT, “Perpetual
Peace: A Philosophical Sketch”, in H.S. REISS, l.c., 108 et seq; J. HABERMAS, The Inclusion of the Other,
Studies in Political Theory, Cambridge, Mass., MIT Press, 1998, 171; J. MACMILLAN, “Immanuel Kant and the
Democratic Peace”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge
University Press, 2006, 68; W. SCHWARZ, “Kant’s Philosophy of Law and International Peace”, Philosophy and

327
to ordinary citizens, will be morally perfected through nature’s plan and this will finally result
in eternal peace.1538

361. How can this difference between the philosophical aspect of the theory and the practical
application thereof be explained? KANT was not naïve in that he considered mankind as
morally good or benevolent, but was convinced that warfare is inherent to the human
condition.1539 It is due to war that mankind has spread all over the world.1540 KANT agreed
with HOBBES that the state of nature may on occasion result in a war of all against all.1541
Other examples that KANT regarded human beings as deeply fallible are the statement that
“Nothing straight can be constructed from such warped wood as that which man is made
of”1542 and the statement that the international state of nature demonstrates the depravity of
mankind, whose greater moral capacity was still dormant.1543 In addition, although human
beings are endowed with a universal and rational will, they rarely make use of it in
practice.1544 If this is the case, then there is no guarantee that individuals would conclude a
social contract that reflects the republican constitution, the only constitution that is right.
Moreover, what is right does not as such result from KANT’s moral theory. KANT’s
categorical imperative is formalistic in that it does not set out the right moral precepts, but the
method to discover what is right. However, it may be expected that not everyone will
formulate the same moral precepts since individuals have different backgrounds and
experiences that will colour the formulation of moral laws.1545 Free human beings will
reasonably make different moral judgments, otherwise freedom has no real meaning. In
addition, there is never absolute certainty that one acts morally as an autonomous individual
postulating universal laws, because one can always act on the feeling that one is truly acting in

Phenomenological Research 1962, 80; M. KOSKENNIEMI, “Constitutionalism as a Mindset: Reflections on

Kantian Themes About International Law and Globalization”, Theoretical Inquiries in Law 2007, 12.
1538
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 49 and 51.
1539
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 111; T. MERTENS and E. VAN ELDEN, Immanuel Kant, Naar de eeuwige
vrede, een filosofisch ontwerp, Amsterdam, Boom, 2004, 12.
1540
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 110.
1541
For KANT the state of nature might not have a total war, but such a war could always occur; it was a status
belli omnium in omnes: T. MERTENS and E. VAN ELDEN, Immanuel Kant, Naar de eeuwige vrede, een
filosofisch ontwerp, Amsterdam, Boom, 2004, 12-13.
1542
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 46.
1543
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 103.
1544
Ibid., 112.
1545
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 41-42; G.W. BROWN, Grounding Cosmopolitanism,
Edinburgh, Edinburgh University Press, 2009, 42; A. FRANCESCHET, “Sovereignty and Freedom: Immanuel
Kant’s Liberal Internationalist ‘Legacy’”, Review of International Studies 2001, 224.

328
a way that is morally good.1546 It is therefore not surprising that KANT was convinced that
what is right will not be immediately established or that it could ever be attained.1547

362. Because of KANT’s view on the nature of mankind, he was aware that the creation of a
republic and the maintaining of a republican constitution was a hard goal that is unlikely to be
achieved. The true republic was an ideal constitution that States more or less reflect. In
addition, even if a people would establish a republican constitution, this would not necessary
flow from the moral righteousness of the people of the republic, but may be the result of the
self-interest of the people. A republican constitution is even possible for a race of devils
provided they act in enlightened self-interest.1548 A similar mechanism operates at the
international level: because war is against the self-interest of the people they will opt for the
establishment of a federation governed by international law. International relations governed
by law foster trade and prosperity, which in turn makes the recourse to war more unlikely.1549
Taking this into consideration, it would be hard to justify why only republican States could
become members of the federation. They surely have not necessarily earned their republican
constitution due to the moral character of the people. Furthermore, other States may have
certain republican aspects, such as respect for the core human rights, without satisfying the
criterion of representation. Nevertheless, if such States want to settle disputes peacefully in
accordance with international law, there is no reason to exclude them from the federation
since they respect the core of human rights and behave peacefully. This is precisely the point
RAWLS makes. Because a liberal people can accept a reasonable pluralism within their
society, they can also accept that other States have not the same political system as liberal
democracies, while still considering them decent.1550 Evidently, this does not mean that a
republic will deem the government of non-republics as just as theirs, but not so unreasonably
unjust that no agreement on the basic rules of the law of peoples is possible. Hence, the law of
peoples can in the view of RAWLS be extended to include hierarchical, decent peoples1551 and
between such peoples there can be peace1552 and a law of peoples based on the same
principles. RAWLS however excludes other States, especially outlaw States which are
tyrannical States that behave aggressively.1553 He also excludes burdened societies and
peoples living under benevolent absolutisms. The former are societies that are not well-
ordered because they lack the political or cultural baggage or the economic and social
resources, but liberal and decent people have a duty to assist them in becoming well-
ordered.1554 The latter are regimes that honour human rights but do not let their citizens

1546
To which KANT agrees: I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not
Apply in Practice’”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991,
69. See also: W. RASH, “Kant’s Project of Perpetual Pacification”, Law Critique, 2008, 27.
1547
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 46-47.
1548
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 112-113.
1549
T. MERTENS and E. VAN ELDEN, Immanuel Kant, Naar de eeuwige vrede, een filosofisch ontwerp,
Amsterdam, Boom, 2004, 22-23.
1550
J. RAWLS, The Law of Peoples, Cambridge, Mass., Harvard University Press, 2002, 59-60.
1551
Hierarchical, decent people are people that live under an associationist, hierarchical regime based on
consultation, a regime that respects human rights, and allow dissent: Ibid., 61 and 64 et seq.
1552
Ibid., 19, 59-60.
1553
Ibid., 48 and 90.
1554
Ibid., 106.

329
participate in decision-making.1555 Since these States do not (sufficiently) provide for
participation of their people, they cannot be part of the law of peoples. TESÓN disagrees with
RAWLS and rejects that international law can be based on principles agreed between liberal
and non-liberal peoples.1556 In the end, TESÓN stresses that a liberal constitution at the
national level is the conditio sine qua non to join the federation so that eternal peace will in
the end be established if all States become republics and join the federation. Between the
members of the federation there is peace and their relations are governed by law, the relations
with third States are governed by political and moral expediency. Although I agree that
eternal peace in the end can only be established if all States are republics and every State
renounces the use of force to settle disputes, I disagree with this approach that unduly stresses
the first Definitive Article over the others. KANT was prescribing the conditions for eternal
peace on three levels, the national, the international and the cosmopolitan. All three levels are
equally important and are mutually reinforcing each other. Since a true republic is difficult to
establish or to maintain in an international society that would have recourse to the use of force
(which might trigger the suspension of human rights in republics due to states of emergency),
the spread of republicanism might be facilitated by including non-republics in the federation.
By the guarantee of peace and the increase in exchanges at the cosmopolitan level by for
instance trade the slow process of reformation of non-republics will take place.

363. As to the second issue on the prohibition of intervention or the use of force, KANT’s
theory is far from inconsistent as TESÓN claims. If mankind is fallible, then also the
government of a republican State that wants to intervene in other States to spread
republicanism. If mankind is not completely rational, then intervention purely on a moral
basis by republican States is unlikely. Since a republican constitution does not necessarily
flow from the moral nature of its people, international intervention might be based on other
grounds than pure moral ones. Although war is generally not in the self-interest of a republic,
KANT’s cautious assertion about the belligerent nature of republics indicates that he
recognized that even republics, comprised of fallible human beings, might succumb to power
politics. Moreover, allowing interventions in non-republican States, would make the moral
choices of republican people the yardstick and negate the autonomy of other people to
conclude a social contract, which is problematic from the point of view of the categorical
imperative. By forcefully imposing one’s moral points of view one denies the humanity in
others as autonomous human beings. In this respect RAWLS equally points out that
intervention in case of decent peoples would negate their autonomy and opts instead for the
encouraging of gradual changes in these societies.1557 The use of force is therefore limited to
situations of self-defence against aggression by outlaw States. In addition, other States that are
not well-ordered States have the right to self-defence,1558 which implies that they cannot be
attacked by well-ordered societies.
Of course, KANT would not agree that all views on morality are equally rational, but as
long as it does not harm the freedom of others there is no need to use force. KANT is critical

1555
Ibid., 4 and 63.
1556
See his commentary on RAWLS (albeit on an earlier version of The Law of Peoples): F.R. TESÓN, A
Philosophy of International Law, Boulder, Co., Westview Press, 1998, 109-122.
1557
J. RAWLS, The Law of Peoples, Cambridge, Mass., Harvard University Press, 2002, 61-62.
1558
Ibid., 92.

330
of the moral choices of Tahitians and Africans,1559 but since those choices do not harm other
States, he refuses to allow intervention, as is clear from his rejection of colonialism even if
there would be good reasons.1560 This explains why KANT does not consider the immoral
behaviour of a State against its own population a reason for intervention since it does not
harm any other State, unlike aggression, against which a State may use force in self-
defence.1561 Furthermore, the prohibition of (forceful) intervention in others States is the
result of the absence of a vertical social contract at the international level. At the international
level States have only concluded a horizontal social contract in which they guarantee the
freedom of each and every State without making a vertical social pact that can enforce the
law. This can only work if the participants to the horizontal pact undertake a moral obligation
to settle their disputes through international law peacefully. In order to escape the
international state of nature without creating a world State they must undertake the obligation
that their unilateral claims about justice will be resolved peacefully, if necessary through
arbitration or an international court, and to obey and implement the outcome, even if it is
disadvantageous to one of them. If KANT would allow intervention into another State, this
would boil down to recognizing an assertion about justice that in the end is unilaterally
enforced. Yet, this does not reflect a state of law, but is characteristic of the state of nature.
Hence, for these reasons KANT’s pacifism is not inconsistent with his theory. Nevertheless, I
agree with TESÓN that this is not a satisfactory solution to the issue of the enforcement of
international law, especially those fundamental norms that protect individuals from serious
abuses of their rights. However, the solution of TESÓN to allow unilateral humanitarian
intervention which would persist the state of nature, is less preferable than finding legal
mechanisms to enforce international law that are accepted by the international community.

2. Jus cogens and the Kantian project of international law

364. After elucidating KANT’s project for international peace it needs to be examined
whether a constitutionalism based on jus cogens can fit this project. It is evident that the
version of constitutionalism defended in the thesis cannot perfectly match KANT’s theory.
KANT was writing his theory more than two hundred years ago in a different political and
legal context. International law at that time was mostly a law of coexistence characterized by
bilateral relations between European States; colonialism was rampant; human rights were still
in their infancy; globalization was almost non-existent and communication between humans
around the globe was sporadic. In this context, KANT believed that eternal peace would be
achieved if the three prongs of his theory would be fulfilled. Ideally, all States would become
republican; States would settle their disputes in accordance with international law and not
trough armed force, and every human being would be allowed to travel and converse around
the globe. In an era of enlightened despotism, recurrent wars and limitation of movement of
persons KANT’s theory would indeed seem to establish eternal peace. Even today KANT’s

1559
A. BEHNKE, “‘Eternal Peace’ as the Graveyard of the Political: A Critique of Kant’s Zum Ewigen Frieden”,
Millennium – Journal of International Studies 2008, 525 et seq.
1560
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 106-107.
1561
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 96; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 170.

331
vision on eternal peace is not yet fully realized and can contain recipes for a more peaceful
world. Thus, it would be too early to put KANT’s theory on eternal peace in the philosophical
dustbin. Nevertheless, KANT did not and could not envision the contemporary international
society with much denser relations between States, the expansion of international law, the
concepts of jus cogens and obligations erga omnes, the Charter of the United Nations, mass
media and the internet. This requires a modification of his theory to fit the present
circumstances, a position that KANT would support since he was convinced that no theory
could be complete.1562 This reconstructed theory will remain faithful to KANT’s core elements
of an inclusive international society, the prohibition of violence, the advance of republicanism
in States and the development of cosmopolitan law. Moreover, any changes to the theory will
be based as far as possible on other aspects of KANT’s theory for eternal peace. Nonetheless,
not all aspects of his theory will be followed. Especially, the view that history is teleological
will not be maintained since it is highly unlikely that history follows a natural plan or if it did
that one can know that plan.1563

365. Constitutionalism based on jus cogens and KANT’s theory on eternal peace have in
common that both aim to establish a state of law at the international level. Having
constitutional norms implies that a society is governed by laws that restrict political power.
Peremptory norms at the international level precisely limit the law-making power of States so
that ultimately States have to respect those norms that protect the vital interests of the
international community. Peremptory norms include the prohibition on the use of force in
inter-State relations and the prohibition on non-intervention in internal affairs;1564 even if
force is used, it will not produce any legal consequences. This is in line with Kantian theory
for eternal peace that equally prohibits the use of force between States to settle disputes and
intervention within States. The result is the same: international disputes cannot be solved
through the use of force so that in the end disputes are peacefully settled in accordance with
the law. Hence, KANT’s theory on eternal peace and a constitutionalism based on jus cogens
advocate the same project for peace, namely the abandoning of the use of force at the
international level and the conducting of international politics in a framework of laws that are
universally accepted. In addition, both a constitutionalism based on jus cogens and the
Kantian theory on eternal peace are inclusive. KANT did not regard it justified to exclude non-
republican States from the international federation; pursuant to a constitutionalism based on
jus cogens, all States are part of a legal community and peremptory norms will be created by
the common acceptance of the norm’s peremptory status by nearly all States with a different
political, moral and philosophical background. At first, this seems to conflict with KANT’s
conviction that it can be objectively and universally established what is right.1565

1562
G.W. BROWN, Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009, 22.
1563
In fact the teleological approach to history can be jettisoned since social interaction in the global public
sphere which would be the result of the third Definitive Article, would advance the common understanding of
what is right and peace: J. HABERMAS, The Inclusion of the Other, Studies in Political Theory, Cambridge,
Mass., MIT Press, 1998, 176-178. In any event, this part can be salvaged: G.W. BROWN, Grounding
Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009, 38 et seq; J. MACMILLAN, “Immanuel Kant
and the Democratic Peace”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge,
Cambridge University Press, 2006, 68-69.
1564
Infra, Chapter 6, Section 2, § 2 and § 3.
1565
J. MACMILLAN, “Immanuel Kant and the Democratic Peace”, in B. JAHN (ed.), Classical Theory in
International Relations, Cambridge, Cambridge University Press, 2006, 66.

332
Contrariwise, jus cogens is based on an inter-subjective belief that certain values are morally
of such an importance that they merit special legal protection.1566 Hence, the probability is
high that not everything that is right will be contained in peremptory norms or that existing
peremptory norms in all respects reflect what is right. Nevertheless, since what is right does
not derive as such from the categorical imperative, different moral judgments are likely.
Therefore, KANT believed that it was through social interaction (and the teleological course of
history) that what is ultimately right would be discovered and implemented. In the meantime,
a society would be governed by laws that were only an imperfect representation of what is
right, while at the same time constantly improving itself.1567 Disagreements about what is
right will also exist at the international level. Yet, KANT was convinced that a minimum of
ethical precepts could be formulated at the international level despite the existing cultural
diversity and without the need to have recourse to violence and domination. The similarity
with jus cogens is obvious: despite the differences between States, they can through
interaction between themselves and with other actors of the international community accept
certain universally binding rules that protect the most fundamental values of the international
community, while at the same time allowing for a continuing diversity in areas that are not
covered by peremptory norms. In essence, the notion of jus cogens with its requirement of
acceptance by the international community of States as a whole is the legal equivalent of the
philosophical social contract. All (or nearly all) States accept to prohibit the use of force and
thus to escape the State of nature. In addition, they agree on certain core principles they will
respect in their mutual relations and towards every human being. Evidently, this is not
consistent with TESÓN’s ideal account of KANT and not even with the law of peoples of
RAWLS. TESÓN limits international law to liberal democratic States and the law of peoples of
RAWLS is only applicable between well-ordered peoples, i.e. liberal democracies and decent
hierarchical people. Nevertheless, jus cogens is a legal concept and belongs to non-ideal
theory, or how to reach a certain ideal goal.1568 In a globalized and interdependent world
liberal democracies and other decent peoples need to interact with States whose constitution is
not legitimate and just. Leaving them outside the legal order is no option or not possible. By
including such States in the international legal community these States and their peoples will
experience the benefits of international relations governed by law, of international trade, and
contact with citizens of decent peoples. Since jus cogens also protects the most fundamental
interests of human beings gradually republican values will be disseminated and accepted by
non-liberal States, so that they are gradually being transformed and eternal peace established.

366. Despite these similarities, there are also problematic aspects to a Kantian project of a
constitutionalism based on jus cogens, yet it is submitted that those do not pose
insurmountable obstacles and can be accommodated with Kantian thought. The cardinal
element of KANT’s theory on eternal peace was the establishing of a federation whose
members would renounce the use of force. Jus cogens is not limited to the prohibition on the
use of force, as the constitutional norms of the international community also contain norms

1566
Supra, Chapter 2, Section 3.
1567
J. MACMILLAN, “Immanuel Kant and the Democratic Peace”, in B. JAHN (ed.), Classical Theory in
International Relations, Cambridge, Cambridge University Press, 2006, 66; J. WALDRON, “Kant’s Legal
Positivism”, Harvard Law Review 1995-1996, 1564-1565. This reflects KANT’s opinion that a republican State
is an ideal, that every State should strive for, but that is never fully realized so that a strict separation between
republican and non-republican State is impossible: supra, no. 356.
1568
J. RAWLS, The Law of Peoples, Cambridge, Mass., Harvard University Press, 2002, 89-90.

333
protecting the basic rights of the human person. KANT on the other hand seems to restrict the
international level to prevention of inter-State war;1569 the other peremptory norms would be
placed by KANT at the State level or in cosmopolitan law.1570 Nevertheless, it is not because
KANT in the triptych of national, international and cosmopolitan law would assign certain
norms to one jurisdiction, that he would disagree with an additional protection offered by the
other jurisdiction. For KANT the State was the most morally required organization of civil
society in which individuals could exercise their freedom.1571 This does not however exclude
that other levels can develop their own form of societal organization, especially if the
interactions on that level become denser, or that one legal system also offers protection for
norms that are contained in another. Since the international community is not limited to States
but also includes the individual as a legal subject – which is different from the international
society of KANT’s time – there is no reason not to provide for protection of the individual at
the international level that complements the national level. It may even be argued that one has
to expand international law: the more interaction between more actors there is, the more there
will be disputes about what is right and just and the more there will be a need to make law in
order to prevent a descent into the abyss of the state of nature. Furthermore, due to
globalization the power of the State is hollowed out because of a shift of decision-making
power to the international level. Hence, the need to guarantee the fundamental rights of
individuals at that level too. Moreover, KANT did not himself regard international law as
purely limited to the interaction of States, but equally includes relations between States and
foreigners and between peoples.1572 Thus, there would be no obstacle in that States agree that
in their international relations they would respect not only certain fundamental norms between
themselves but equally in relation to individuals. Furthermore, the pacification of inter-State
relations is a necessary condition for the spreading of republicanism at the national level, in
the relation between the State and the citizens. Yet, this does not preclude that States

1569
J. HABERMAS, The Inclusion of the Other, Studies in Political Theory, Cambridge, Mass., MIT Press, 1998,
165.
1570
With cosmopolitan law is meant the law that is applicable to the relations between peoples, for instance
international commerce: J. WALDRON, “Cosmopolitan Norms”, in R. POST (ed.), Another Cosmopolitanism,
Oxford, Oxford University Press, 2006, 89-90.
1571
G.W. BROWN, Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009, 45-46; J.
WALDRON, “Kant’s Theory of the State”, in P. KLEINGELD (ed.), Toward Perpetual Peace and Other Writings
on Politics, Peace and History, New Haven, Yale University Press, 2006, 183. In addition, it was the most
urgent political form to be created because of the proximity of people living next to each other and hence the
danger of more intensely violent disputes: J. WALDRON, “Kant’s Legal Positivism”, Harvard Law Review 1995-
1996, 1556. Similarly, KANT called upon neighbouring States, which are more likely to be involved in disputes,
to enter the federation: I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 165 and 171.
1572
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 165. Yet this seems to blur the distinction between international and cosmopolitan right.
In addition, certain aspects of cosmopolitan law could also fall under international law, in particular KANT’s
treatment of colonialism. Nonetheless, it can be argued that cosmopolitan law is limited to the conditions of
universal hospitality binding upon States and individuals, whereas international law would deal with all other
aspects of interaction between individuals and peoples; on this account, KANT’s treatment of colonialism as part
of cosmopolitan law is not problematic because it is not only practiced by States, but also by individuals (cf.
East India Companies) and this type of colonialism would fall under cosmopolitan right: J. WALDRON,
“Cosmopolitan Norms”, in R. POST (ed.), Another Cosmopolitanism, Oxford, Oxford University Press, 2006,
90. Finally, it is perfectly possible that cosmopolitan right is also protected through national law and
international law.

334
additionally want to spread republican values by accepting them as the highest norms of the
international level to which both their domestic actions and their international relations may
be judged. As such there is no indication that KANT would condemn an international
community that goes beyond the prohibition of the use of force and intervention in domestic
affairs – a necessary condition – and includes shared republican values, such as respect for
human dignity. On the basis of this account jus cogens norms that go beyond the requirements
of the federation would still fit a Kantian project of international law.

367. Another apparent problem is that jus cogens norms are obligations erga omnes, so that
every State has a legal interest in seeing peremptory norms respected. KANT on the other hand
seemed not to approve that States had a legal interest in violations of international law within
a State. In Towards Eternal Peace, KANT unambiguously proclaims that intervention in a
foreign State is not allowed since a bad example cannot be equalled with an injury.1573 On this
account, a violation of a peremptory norm that does not cause injury to another State could
not lead to a legal interest. Furthermore, an analogy with cosmopolitan right cannot be made
since the statement that a cosmopolitan society might emerge where a violation of
cosmopolitan law might be felt everywhere1574 is merely descriptive and does not bestow on
anyone a legal interest to enforce that right. From this, it seems clear that KANT would not
give a State a legal interest in a violation of an international right if it at the same time is not
an injured State. Yet, in Metaphysics of Morals KANT discusses what can be done against an
unjust enemy, that is a State which through its expressed will or its deeds would demonstrate
a maxim that would make peace impossible or eternally prolong the state of nature; this is
primarily a State that displays aggression towards other States, but it also includes “violations
of public contracts, which can be assumed to affect the interests of all nations”.1575 The reason
behind this statement is that a State that aims to prolong the state of nature indefinitely poses
a danger to all States.1576 This is of course in the first place a State that shows aggression
towards others, but can also include a State that violates the norms that are deemed to protect
the core values of the international community.1577 Since peremptory norms are accepted by
nearly all States as the most fundamental norms of the international community, it might not
be too far removed from KANT’s theory to regards them similar to those public contracts that
affect the interests of all nations. Furthermore, since this statement was made in relation to the
use of force of States in the state of nature,1578 it would be less problematic to give each State
a legal interest to invoke the legal responsibility of a State for the violation of such “public
contracts” before a an international tribunal since a legal claim before an international tribunal

1573
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 96.
1574
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 172.
1575
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 170.
1576
A. FRANCESCHET, “‘One Powerful and Enlightened Nation’: Kant and the Quest for a Global Rule of Law”,
in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge University Press, 2006,
87-88.
1577
Ibid., 88; S.M. SHELL, “Kant on Just War and ‘Unjust Enemies’: Reflections on a Pleonasm”, Kantian
Review 2005, 100 et seq (she however adopts the view that only republics can be part of the federation and may
use force against non-republics).
1578
See: P. CAPPS, “The Kantian Project in Modern International Legal Theory”, European Journal of
International Law 2001, 1018-1019.

335
implies a willingness to transcend the state of nature, to renounce force and act in accordance
with a general or “omnilateral” will, i.e. a willingness to let international legal institutions
decide unilateral claims of justice made by States.1579 However, this brings us to the question
of how peremptory norms can be enforced in line with KANT’s thoughts.

368. KANT’s theory on how to reach eternal peace is complicated by its tenets on
enforcement at the international level. For KANT, States could not be forced to join the
federation and to renounce their right to war; States had to freely become a member of the
federation, solve their disputes in accordance with international law and to freely execute the
judgments. In addition, States could always choose to leave the federation.1580 Furthermore,
KANT is silent on how this federation operates, it is only stated that the federation cannot be
considered to have the powers of a State.1581 The only concrete indication is that the members
of the federation renounce the use of aggression and intervention and settle their disputes
through legal proceedings.1582 Yet, KANT does not allow that these decisions can be enforced
against a recalcitrant State,1583 whereas at the national level he does allow force to implement
the law.1584 On the one hand, KANT rejects a world State with coercive powers, as not
realistically attainable and dangerous for the freedom of individuals.1585 On the other hand, he
does not seem to embrace the consequence thereof: decentralized enforcement by States. In
addition, KANT not only rejects the use of force, but also the adoption of countermeasures by
States to force another State to comply with international law since both involve a unilateral
assessment of what is right.1586 In the end, the only use of force that KANT permits is force
used in self-defence or against an unjust enemy of the federation.1587

369. Constitutionalism based on jus cogens is not compatible with this part of Kantian
thought. First, peremptory norms do not require unanimity: in order to create and become
bound by a peremptory norm it suffices that nearly all States accept the norm. This implies

1579
Ibid., 1021.
1580
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 104; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c., 165 and
171.
1581
Ibid., 104.
1582
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 171.
1583
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 104; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c., 1991, 171;
but see: I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in Practice’”, in
H.S. REISS, l.c., 92; G.W. BROWN, Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009,
100-102.
1584
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 45-46; F.R. TESÓN, “The Kantian Theory of
International Law”, Columbia Law Review 1992, 74; J. FISCH, “When Will Kant’s Perpetual Peace be
Definitive?”, Journal of the History of International Law 2000, 141; B. OREND, “Kant on International Law and
Armed Conflict”, Canadian Journal of Law and Jurisprudence 1998, 335-336.
1585
I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in Practice’”, in
H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 90 and 92; I. KANT,
“Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, l.c., 105,
1586
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 167.
1587
Ibid., 170.

336
that those States may enforce that peremptory norm against those States that object to it.
Secondly, peremptory norms protect the most fundamental values of the international legal
system. Unlike ordinary norms of international law they cannot be set aside and their
violations cannot produce any legal effect. KANT’s view that States may not be forced into
compliance can therefore not be maintained, since those norms would become completely
ineffective.

370. KANT’s rather problematic views on non-coercion at the international level flow from
the analogy between the state of nature between individuals and the state of nature between
States. In both situations, individuals and States have the moral obligation to leave the state of
nature. Individuals however can be forced to leave this state and create the State because of
the unavoidability of social contact.1588 Conversely, States may not be morally coerced to join
the federation because unlike individuals they have already partially transcended the state of
nature since they are based on “an original contract upon which all rightful legislation is
founded”.1589 Since States are based on a social contract they are the concretization of the
exercise of freedoms of the citizens and therefore cannot be forced into the federation or to act
in conformity with international law, which would imply the negation of the sovereign nature
of the State.1590 For KANT, the ideal solution is that in the end all States would create a world
republic in which their security and rights are determined by the united will of the
republic.1591 Yet, although this is ideally the right solution, it is practically not realizable, first
because it might lead to a tremendous abuse of power, which is likely considering human
nature,1592 and second because States do not want to give up their sovereignty.1593 KANT

1588
I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in Practice’”, in
H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 73; G.W. BROWN,
Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009, 17 and 94; W. SCHWARZ, “Kant’s
Philosophy of Law and International Peace”, Philosophy and Phenomenological Research 1962, 74; S.M.
SHELL, “Kant on Just War and ‘Unjust Enemies’: Reflections on a Pleonasm”, Kantian Review 2005, 85; B.
OREND, “Kant on International Law and Armed Conflict”, Canadian Journal of Law and Jurisprudence 1998,
336 and 347; J. WALDRON, “Kant’s Legal Positivism”, Harvard Law Review 1995-1996, 1562.
1589
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 104; but see I. KANT, “On the Common Saying: ‘This may be True in
Theory, but It does not Apply in Practice’”, in H.S. REISS, l.c., 90; A. BEHNKE, “‘Eternal Peace’ as the
Graveyard of the Political: A Critique of Kant’s Zum Ewigen Frieden”, Millennium – Journal of International
Studies 2008, 518; A. FRANCESCHET, “‘One Powerful and Enlightened Nation’: Kant and the Quest for a Global
Rule of Law”, in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge University
Press, 2006, 90.
1590
S.M. SHELL, “Kant on Just War and ‘Unjust Enemies’: Reflections on a Pleonasm”, Kantian Review 2005,
89.
1591
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 47; I. KANT, “On the Common Saying: ‘This may be
True in Theory, but It does not Apply in Practice’”, in H.S. REISS, l.c., 92; I. KANT, “Perpetual Peace: A
Philosophical Sketch”, in H.S. REISS, l.c., 105; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, l.c., 171.
S.M. SHELL, “Kant on Just War and ‘Unjust Enemies’: Reflections on a Pleonasm”, Kantian Review 2005, 89;
T. GIEGERICH, “The Is and the Ought of International Constitutionalism: How Far Have We Come on
Habermas’s Road to a ‘Well-Considered Constitutionalization of International Law’?”, German Law Journal
2009, 33-34.
1592
I. KANT, “Ideas for a Universal History with a Cosmopolitan Purpose”, in H.S. REISS, Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 46: “Nothing straight can be constructed from such
warped wood as that which man is made of.”; A. HURELL, “Kant and the Kantian Paradigm in International
Relations”, Review of International Studies 1990, 192.

337
therefore proposes the voluntary federation of States as an alternative. However, in the
federation that is concerned with the freedom of States, the member-States cannot be coerced
to respect the decisions of the international federation since sovereignty is regarded to be
indivisible: in that case, a State may simply leave the federation. Furthermore, it would not be
right since KANT regards any State to have achieved a reasonable degree of justice
domestically and forcing that State would risk endangering this.1594 KANT’s sole hope is that
in the end all States become republican and join the federation, in which they settle their
disputes in accordance with international law and execute the decisions faithfully; in short,
international law must be a law without coercion.1595 In the meantime, force against States can
never be allowed except in the case of self-defence or against an unjust enemy, i.e. a State
which through its actions would endanger the goal of eternal peace.1596 Importantly, however,
in the latter case States are not acting legally anymore, in the state of law, but in the state of
nature.1597 From this, it can be deduced that KANT regarded the federation, i.e. a voluntary
agreement to renounce force and to abide by the law as a middle ground between the state of
nature and a world State. He seems not to envision a form of political community that goes
beyond the limited scope of the federation, but does not reach the level of a world State. The
reason is that KANT cannot conceive that sovereignty may be limited, without a State losing
its sovereignty. It is either a federation of fully sovereign States or a world State. Nonetheless,
KANT offers some building blocks to construct a political community that goes beyond the
minimalistic federation without becoming a world State.

371. Concerning the binding character of peremptory norms on States that have not accepted
them, it may be argued that the analogy with the state of nature of individuals can be further
extended. Individuals can be forced in the state of law because of the unavoidability of
contact, i.e. they can be forced into a society where they have to restrict their freedom in
accordance with the law. The same can be argued for States at the international level: in a
globalized world States cannot avoid each other and need to cooperate to address global
issues, so that they may be obligated against their will.1598 Evidently, this will not be possible
for each and every international norm, otherwise the situation would resemble a world State
without formally having a world State. Furthermore, KANT has a point that a sovereign State
also represents a society that has adopted views about what is just at the domestic and
international level. In order to respect the different conceptions of justice consent to be bound

1593
I. KANT, “Perpetual Peace: A Philosophical Sketch”, in H.S. REISS, Kant’s Political Writings, Cambridge,
Cambridge University Press, 1991, 105 and 113; I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s
Political Writings, Cambridge, Cambridge University Press, 1991, 171; A. FRANCESCHET, “‘One Powerful and
Enlightened Nation’: Kant and the Quest for a Global Rule of Law”, in B. JAHN (ed.), Classical Theory in
International Relations, Cambridge, Cambridge University Press, 2006, 90.
1594
B. OREND, “Kant on International Law and Armed Conflict”, Canadian Journal of Law and Jurisprudence
1998, 348 and 350.
1595
G.W. BROWN, Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press, 2009, 100-102; J.
FISCH, “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of International Law 2000,
146-147.
1596
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 170.
1597
A. FRANCESCHET, “‘One Powerful and Enlightened Nation’: Kant and the Quest for a Global Rule of Law”,
in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge University Press, 2006,
92, with reference to the statement of KANT that it is pointless to speak of an unjust enemy in the state of nature.
1598
See mutatis mutandis: J. WALDRON, “Kant’s Legal Positivism”, Harvard Law Review 1995-1996, 1555.

338
should remain an important element of international law. However, in may be argued that
considering that States interact in an increasingly denser international community a uniformly
binding solution in disputes on the core issues of justice to govern that international
community is required. In such a case the strict requirement of individual State consent or
acceptance is set aside for the benefit of the international community, provided near
unanimity on the opinio juris cogentis is present. This comes very close to the omnilateral
will at the national level that puts forward the law of the community without it necessarily
reflecting the interests and concerns of all subjects.1599

372. Concerning the enforcement of international law and more specifically peremptory
norms, the main problem for KANT was the use of force based on a unilateral assessment of
what is just, which is characteristic of the state of nature.1600 Therefore, the state of nature has
to be transcended so that at all levels of humanity mankind is governed through law and not
on the basis of force. However, if States have settled their disputes in accordance to
international law, the enforcement of that is no longer based on a unilateral will of what is
just. For instance, a State that has brought its case before the International Court of Justice
and then asks the Security Council to take measures against the State that refuses to comply
with this judgment – a State that continues to make a unilateral claim about what is just – is
not acting on its unilateral assessment of what is just. In such case, there should be no reason
to enforce the law, especially if enforcement is restricted to non-forcible measures. Moreover,
KANT did allow the use of force against a State that whose actions would endanger the
establishment of eternal peace. He considered this acting in the state of nature because it
concerned the use of force of the federation against a non-member. Yet, this is distinct from
the situation in which one member of the “federation” would act against another member and
where the federation would in first instance not use armed force. In the end, KANT did not
consider this permitted because of his absolute notion of sovereignty. This argument becomes
moot if all States have joined the federation and have accepted limitations upon their
sovereignty by installing a mechanism to enforce international law. The main difference with
a world State is that States continue to have the legal power to abolish those mechanisms or to
change them, a right KANT did not give to the citizens of a State.1601 Thus, States can create
the United Nations where they can grant the Security Council the power in case of
international peace and security to take enforcement measures, including if needed the use of
force in case of violation of peremptory norms.1602 In addition, in case of absence of a
Security Council resolution, other measures to implement peremptory norms are laid down by
law and do not involve the use of force, but the invocation of legal responsibility and the
limitation of the consequences of serious breaches of peremptory norms. Although
international law does not provide at this point in time for countermeasures in case of
violations of peremptory norms, the institution of countermeasures is from a Kantian point of

1599
Ibid., 1557.
1600
A. FRANCESCHET, “‘One Powerful and Enlightened Nation’: Kant and the Quest for a Global Rule of Law”,
in B. JAHN (ed.), Classical Theory in International Relations, Cambridge, Cambridge University Press, 2006,
91; B. OREND, “Kant on International Law and Armed Conflict”, Canadian Journal of Law and Jurisprudence
1998, 343; J. WALDRON, “Kant’s Legal Positivism”, Harvard Law Review 1995-1996, 1561.
1601
Supra, No. 359.
1602
The United Nations system is not in strict accordance with Kantian thought since the Security Council is not
a body that decides legal issues but only assesses the threat to international peace and security, often employing
mainly political considerations.

339
view problematic since they precisely involve a unilateral assessment of a violation of the
law. Furthermore, countermeasures would be incompatible with the Kantian emphasis on law
as the result of a “general will”.1603 Practically, however, allowing countermeasures in case of
violations of peremptory norms might be the best alternative to doing nothing, but for KANT it
would involve a non-legal situation. In any event, there is no doubt that the unilateral use of
force is incompatible with a Kantian approach: although such use may be morally required, it
cannot be considered legal.

373. Constitutionalism based on jus cogens has de-legalized all consequences of the use of
force. It provides through the mechanism of obligations erga omnes a legal interest for all
States to invoke the legal responsibility of a State that has violated a peremptory norm. It also
establishes duties for States to cooperate through lawful means to end the violation, not to
recognize the violation, or to render aid or assistance to maintain the situation resulting from
the breach of the peremptory norm. Legally, the use of force is prohibited except when a State
has to act in self-defence or after authorization of the Security Council. The only instance of
unilateral assessment is when States would take countermeasures against a State that allegedly
has violated a peremptory norm, although this faculty is at this point in time highly contested
and does not reflect international law.1604 Thus, a constitutionalism based on jus cogens
advocates an international law, where force is tightly subscribed. Pace KANT, the main
problem is not that a State would be coerced through international law to respect peremptory
norms, but that ultimately a State cannot be restrained to use force on the basis of a unilateral
assessment and thus side-step international law’s stringent requirements on the use of force.
Despite constitutionalism, the danger of unilateral assessment of justice remains: a State that
has the power may easily ignore international law and use force to have its way. For KANT, a
society where force can decide what is right despite all the law can contain only provisional
rights; those rights would only become peremptory if all States would join and voluntarily
abide by international law.1605 Hence, any constitutionalism has the ultimate task to convince
States that acting within the constitutional framework of the international level is a better
alternative to hegemony, which implies the identification of the foundations of the
constitutionalist project. A constitutionalism based on jus cogens presents itself as a liberal
and Kantian alternative to hegemony, as a sincere project towards eternal peace.

SECTION.4. CONCLUSION

374. Jus cogens started as the concretization of the concept of ordre public at the
international level. As long as jus cogens would be limited to treaty relations it could be
unlikely regarded as having any other function than the ordre public of the international
community. However, rapidly the notion of jus cogens expanded to include customary
international law and unilateral acts and peremptory norms were deemed to give each State a
legal interest in the upholding of these norms through the concept of obligations erga omnes.

1603
P. CAPPS, “The Kantian Project in Modern International Legal Theory”, European Journal of International
Law 2001, 1021-1022; J. WALDRON, “Kant’s Legal Positivism”, Harvard Law Review 1995-1996, 1544.
1604
Supra, No. 272.
1605
I. KANT, “The Metaphysics of Morals”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge
University Press, 1991, 171.

340
The further elaboration of jus cogens in the law on State responsibility indicated that it had
transcended the role of ordre public of the international community. In this chapter jus cogens
has been defended as representing the constitutional norms of the international community, a
point of view that better reflects the various implications of jus cogens. Although a
constitutionalist approach can be subjected to different criticisms, it remains a valuable
academic perspective to international law, that is not able to only identify and describe
constitutional processes in international law, but also embeds these developments in a
normative framework. Adopting a constitutionalist perspective on international law implies
significant changes. First, the period of the S.S. Lotus case is definitively over, if it ever
existed; States are always embedded in international law, instead of only being bound by the
rules they have expressly or implicitly accepted.1606 Second, a constitutionalist approach also
implies that international law should focus on the interest of mankind and not only on pure
State interests. Nonetheless, mankind is composed of different groups and individuals that
disagree about what is good for humanity. Furthermore, people have at this point in time
primarily organized themselves in States and not in a democratically governed world
community. Despite disagreement about the good for mankind and a decentralized organized
international community, global issues have to be addressed and certain universal decisions
adopted to regulate power at the international level. Jus cogens is an ideal tool in this respect.
Peremptory norms recognize States as the entities in which until now people have their closest
political organization and by requiring a near universal acceptance of a peremptory norm it
accepts that people disagree about the common good at the international level, while at the
same time believing that a universal agreement is possible. A constitutionalism based on jus
cogens is thus a realistic approach to international constitutionalism, that can operate today at
the international level and give international law a constitutional dimension.

375. Although jus cogens is a generally accepted concept in international law and can be
regarded as containing international constitutional norms, any constitutionalism also has a
normative dimension, in that it is built upon a project for international (constitutional) law. In
this chapter it has been indicated that considering jus cogens as constitutional norms entails a
certain liberal approach to international law that is based on tolerance of different views what
constitute the good for mankind, but is still convinced that States can come to an temporary
agreement on certain norms to limit their power at the international level by giving rights to
individuals, groups and other States. Furthermore, constitutionalism based on jus cogens also
has a Kantian dimension. In a constitutionalism based on jus cogens there is no space left for
a unilateral use of force to enforce claims, regardless of the internal constitution of States;
only force in accordance with the law is allowed. Furthermore jus cogens contains norms that
protect the autonomy of the individual by protecting basic human rights at the international
level, thereby equally advancing liberal values at the national level. Importantly, the spread of
those values is done peacefully and involves all States with different cultural, social, political
and economic background in the debate. Evidently, this is a slow progress towards the goals
set out by KANT. Nevertheless, KANT himself believed that eternal peace would only be
established after a long process, if it would be established at all.

1606
S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 18.

341
CHAPTER.6. THE IDENTIFICATION OF PEREMPTORY NORMS
SECTION.1. INTRODUCTION

376. The constitutional perspective on jus cogens will help to identify which norms belong
to this category. Since there is no formal constitution and no specific formal source for
peremptory norms, the identification of a norm as belonging to jus cogens has been based
upon the substance of the norm. Thus, it is the importance of the (moral) value that the norm
protects that gives it is peremptory status. Considering that there is significant disagreement
about morality and the relative hierarchy between moral values, it is not surprising that there
is significant disagreement about the peremptory status of norms. The thesis has therefore
turned to State practice in order to identify an opinio juris cogentis and developed a
methodology to identify it. Nonetheless, looking into the practice of around two hundred
States in different fora at different times is a gargantuan enterprise. Moreover, States may
never have had the occasion to express the opinio juris cogentis of a certain norm. The
constitutional perspective will alleviate the burden since it adds that norms will belong to jus
cogens if they are constitutionally fundamental: they have to reflect the foundations upon
which international law is built or constituted. Typically, a constitutional establishes the
organization of political power in a certain community, how law is made, and the limitations
to political power and law-making.1607 It has already been indicated that any constitution also
contains secondary rules, but that at the international level those rules are not part of jus
cogens.1608 However, jus cogens will cover all other constitutional norms. Therefore, norms
that lay down the basic organization of the international community and the most fundamental
norms protecting the rights of the members of the international community – primarily, but
not solely individuals – will belong to jus cogens. On the basis of this perspective, peremptory
norms contained in the Charter of the United Nations, human rights law and international
humanitarian law will be identified. In addition, constitutional norms are principles that need
to be balanced by conflict-rules. Constitutional norms that lay down the organizational
framework of the international community determine which authorities have the power to
make and enforce the law and how these authorities have to interact with each other. The
constitutional norms that protect the fundamental rights of human beings precisely try to
restrict that power. Conflicts between those two categories of norms are thus likely and need
to be settled through the formulation of conflict-rules. In this chapter I will look into two
possible conflict-rules. First, I will examine the concept of “responsibility to protect”, that
inter alia tries to settle the conflict between the prohibition on the use of force and
intervention to protect a population against serious human rights violations. Second, I will
inquire into the existence of a conflict-rule that balances the principle of sovereign equality
with the requirement for effective remedies for violations of peremptory norms that protect
the rights of individuals. The issue has come up before national courts that had to decide to
uphold State immunity for violations of peremptory norms and has led to a judgment of the
European Court of Human Rights and to a case pending before the International Court of
Justice.

1607
Supra, No. 311.
1608
Supra, Nos. 330-331.

342
377. Two caveats are however made. First, the examination of the selected fields of law does
not imply that other fields may not contain peremptory norms. For instance, the prohibition of
serious long term degradation of the environment has been supported as a peremptory
norm.1609 Indeed, it seems in the interest of mankind that the environment should not be
degraded to such extent that human survival is at stake. Thus, the prohibition of serious
degradation of the environment is fundamental enough to be placed amongst other
constitutional rules,1610 although there is not much evidence in State practice and case law that
this norm indeed is peremptory.1611 Another category that might have a constitutional
dimension is the concept of “common heritage of mankind”, although it is questionable that at
this point in time it belongs to jus cogens.1612 Nonetheless, norms in the Charter of the United
Nations, human rights law and international humanitarian law are most frequently invoked as
containing peremptory norms and they will be the focus of this chapter. Second, the norms
which will be identified are highly likely to be peremptory norms, either because there is
sufficient opinio juris cogentis or, if this is lacking, because they have an important
constitutional dimension. However, since the thesis defends a positivist approach to
peremptory norms, the retained norms may be proven not to be part of jus cogens if a full
examination of State practice finds an opinio non juris cogentis.

SECTION.2. PEREMPTORY NORMS LAID DOWN IN THE CHARTER OF THE UNITED NATIONS

378. Peremptory norms reflect the constitutional norms of the international community,
which include the fundamental legal norms of organization of the international legal order.
These norms can be found in the Charter of the United Nations which is closely connected
with the values engrafted in the constitutional norms of the international community.1613 For
instance, ONUF considers all norms of Chapter I of the Charter as belonging to jus cogens.1614

1609
Dissenting Opinion Judge WEERAMANTRY, Legality of the Use by a State of Nuclear Weapons in Armed
Conflict, Advisory Opinion, ICJ Rep. 1996, 142-143; S. KADELBACH and T. KLEINLEIN, “International Law – A
Constitution for Mankind? An Attempt at a Re-appraisal with an Analysis of Constitutional Principles”,
German Yearbook of International Law 2007, 315; M. KNAUFF, “Konstitutionalisierung im inner- und
überstaatlichen Recht – Konvergenz oder Divergenz?”, Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht 2008, 465-466. For environmental law in general: L. HANNIKAINEN, Peremptory Norms (Jus
Cogens) in International Law: Historical Development, Criteria, Present Status, Helsinki, Lakimiesliiton
Kustannus, 1988, 688-695; S. KADELBACH, Zwingendes Völkerrecht, Berlin, Duncker und Humblot, 1992, 315-
320. More nuanced: E.M. KORNICKER UHLMANN, “State Community Interests, Jus Cogens, and Protection of
the Global Environment: Developing Criteria for Peremptory Norms”, Georgetown International
Environmental Law Review 1998, 135.
1610
The International Law Commission considered the serious degradation of the environment important
enough to expressly consider it an international crime of State: Draft Article 19 (3) (d), Yearbook of the
International Law Commission 1976, Vol. II, Part 2, 96.
1611
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press 2006, 65.
1612
K. ZEMANEK, “Basic Principles of UN Charter Law”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.),
Towards World Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden, Nijhoff,
2005, 425-426.
1613
E. DE WET, “The Emergence of International and Regional Value Systems as a Manifestation of the
Emerging International Constitutional Order”, Leiden Journal of International Law 2006, 614-615; N. ONUF,
“The Constitution of International Society”, European Journal of International Law 1994, 16; P.-M. DUPUY,
“The Constitutional Dimension of the Charter of the United Nations Revisited”, Max Planck Yearbook of
United Nations Law 1997, 1 et seq.
1614
N. ONUF, “The Constitution of International Society”, European Journal of International Law 1994, 16.

343
The United Nations has a (nearly) universal membership that has accepted its principles; it
was adopted after a constitutional moment, the end of the Second World War, laying down
the main principles upon which the future society should be based. Hence, not surprisingly,
the Charter of the United Nations has been deemed to be the constitution of the international
community.1615 Nevertheless, this point of view neglects the functional character of the
United Nations, namely that the organization is a sectoral regime focused on peace and
security.1616 Moreover, the Charter could only be considered the constitution of the
international community if it would include within the Charter human rights as limits to the
power of the United Nations and its member States.1617 To consider all these norms as
constitutional by-laws, as FASSBENDER does,1618 is not convincing since some of them have
evolved to peremptory norms protecting the fundamental interests of the international
community. In addition, a constitution is normally hierarchically higher than other norms and
it is not clear that Article 103 Charter of the United Nations establishes such a hierarchy, since
it only renders treaties (but not custom) non-opposable, instead of invalid.1619 Even, if it
would do, it has been held that a Security Council resolution would not be considered valid
and executed if it would contradict a norm of jus cogens.1620 Nonetheless, the Charter remains

1615
B. FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia
Journal of Transnational Law 1998, 529 et seq; B. FASSBENDER, “The Meaning of International Constitutional
Law”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the Legal
Ordering of the World Community, Leiden, Nijhoff, 2005, 846 et seq; P.-M. DUPUY, “The Constitutional
Dimension of the Charter of the United Nations Revisited”, Max Planck Yearbook of United Nations Law 1997,
1 et seq.
1616
C. WALTER, “Constitutionalising (Inter)national Governance – Possibilities for and Limits to the
Development of an International Constitutional Law”, German Yearbook of International Law 2001, 195; E. DE
WET, “The Emergence of International and Regional Value Systems as a Manifestation of the Emerging
International Constitutional Order”, Leiden Journal of International Law 2006, 615, note 15.
1617
E.-U. PETERSMANN, “Constitutionalism, International Law and We the Peoples of the United Nations” in
H.-J. CREMER et al. (eds.), Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger, Berlin,
Springer, 2002, 303; A. PETERS, “Global Constitutionalism Revisited”, International Legal Theory 2005, 44; S.
KADELBACH and T. KLEINLEIN, “International Law – A Constitution for Mankind? An Attempt at a Re-
appraisal with an Analysis of Constitutional Principles”, German Yearbook of International Law 2007, 319; M.
KNAUFF, “Konstitutionalisierung im inner- und überstaatlichen Recht – Konvergenz oder Divergenz?”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2008, 464.
1618
B. FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia
Journal of Transnational Law 1998, 588-589.
1619
S. KADELBACH and T. KLEINLEIN, “International Law – A Constitution for Mankind? An Attempt at a Re-
appraisal with an Analysis of Constitutional Principles”, German Yearbook of International Law 2007, 318.
1620
Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999, § 296; European
Court of First Instance, Kadi v. Council and Commission, Case T-315/01, Judgment, 21 September 2005,
European Court Reports 2005, II-3725, § 230; Id., Yusuf and Al Barakaat International Foundation v. Council
and Commission, Case T-306/01, Judgment, 21 September 2005, European Court Reports 2005, II-3627, § 281;
Court of Appeal, R (on the application of Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327, §
71; Tribunal fédéral, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November 2007, § 7;
Separate Opinion Judge ad hoc LAUTERPACHT, Application of The Convention on the Prevention and
Punishment of the Crime of Genocide, (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)),
Provisional Measures, Order of 13 September 1993, ICJ Rep. 1993, § 100; A. ORAKHELASHVILI, “The Impact
of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions”,
European Journal of International Law 2005, 59 et seq; M. PAYANDEH, “Rechtscontrolle des UN-
Sicherheitsrates durch staatliche und überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht 2006, 46-47; H.P. AUST and N. NASKE, “Rechtsschutz gegen den UN-Sicherheitsrat durch

344
important in that it has laid down the structuring principles of the international legal system
and that the United Nations has been the principle forum in which constitutional principles
have been further developed, new principles have been advanced, or enforced.1621

§1. Sovereign equality of States

379. Article 2 (1) Charter of the United Nations states that the organization is based on the
sovereign equality of its Member States. The principle contains the fundamental norm on the
organization of international law1622 and should therefore be retained as a constitutional
norm.1623 Indeed, the principle identifies that law-making at the international level is
ultimately based on sovereign equal States.1624 The principle of sovereign equality has been
considered a peremptory norm in State practice1625 and its peremptory status has received
wide support in doctrine.1626

europäische Gerichte? Die Rechtsprechung des EuG zur Umsetzung ‘gezielter Sanktionen’ aus dem
Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht 2006, 602.
1621
P.-M. DUPUY, “The Constitutional Dimension of the Charter of the United Nations Revisited”, Max Planck
Yearbook of United Nations Law 1997, 10-11 and 31. For some examples: E. DE WET, “The Emergence of
International and Regional Value Systems as a Manifestation of the Emerging International Constitutional
Order”, Leiden Journal of International Law 2006, 615-616.
1622
R. KOLB, Théorie du ius cogens international, Essai de relecture du concept, Paris, Presses universitaires de
France, 2001, 116; R. KOLB, “Théorie du ius cogens international”, Revue Belge de Droit International 2003,
20; P.H. KOOIJMANS, The Doctrine of the Legal Equality of States, An Inquiry into the Foundations of
International Law, Leiden, Sythoff, 1964, 239; R.P. ANAND, “Sovereign Equality of States in International
Law”, Recueil des Cours 1986-II, 22: “two fundamental principles”; B. KINGSBURY, “Sovereignty and
Inequality”, European Journal of International Law 1998, 600: “[T]he concept of sovereignty underpins a
principle of sovereign equality that has attained an almost ontological position in the structure of the
international legal system.” D. PAL, State Sovereignty at the Cross Roads, Calcutta, S.C. Sarkar & Sons, 1962,
69: “Sovereignty has become a postulate rather than a principle, one of the fundamental assumptions of the
individualistic system of international law”.
1623
D.M. JOHNSON, “World Constitutionalism in the Theory of International Law”, in R.St.J. MACDONALD and
D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the World Community,
Leiden, Nijhoff, 2005, 21.
1624
A. NOLLKAEMPER, “Constitutionalization and the Unity of the Law of International Responsibility”, Indiana
Journal of Global Legal Studies 2009, 537.
1625
Report of the Sixth Committee to the General Assembly, UN Doc. A/6913, 16; Comments and Observations
made in 1966 and 1967 to the Final Draft Articles on the Law of Treaties, Vol. II, UN Doc. A/CONF.39/5, 293
and 310; Ceylon, 39th Meeting of the Committee of the Whole, United Nations Conference on the Law of
Treaties, Official Records, Vol. I, 1969, § 34; USSR, 52nd Meeting of the Committee of the Whole, United
Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 3; Cuba, 52nd Meeting of the
Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, §
34; Lebanon, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 43.
1626
L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,
Present Status, Helsinki, Lakimiesliiton Kustannus, 1988, 177-178; E.-U. PETERSMANN, “How to Reform the
UN-System? Constitutionalism, International Law, and International Organizations”, Leiden Journal of
International Law 1997, 426; B.-O. BRYDE, “International Democratic Constitutionalism”, in R.St.J.
MACDONALD and D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of the
World Community, Leiden, Nijhoff, 2005, 108; R.St. MACDONALD, “The International Community as a Legal
Community”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in
the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 870; A. FISCHER-LESCANO, “Die
Emergenz der Globalverfassung”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2003, 745.

345
380. Nonetheless, it may be questioned whether the principle truly belongs to jus cogens
because it could be argued that it cannot logically be derogated from.1627 Indeed, it may be
argued that sovereignty is a political concept indicating a specific state of facts in the
international order and would thus not derive from international law as such.1628 Sovereign
States are supreme and therefore can only be bound by international law if they have
expressly or tacitly accepted the rules of international law.1629 Therefore, sovereignty cannot
be a legal concept, but refers to supreme power and authority over a political community
located in a certain territory without interference from other States.1630 In the words of
Arbitrator HUBER, “sovereignty means independence”.1631 When States are undertaking
obligations they are not derogating from their sovereignty, but are merely exercising it.1632
Accordingly, States cannot derogate from sovereignty since every obligation they undertake is
in fact an exercise of that sovereignty. Furthermore, the necessary corollary of sovereignty –
equality of States – is generally held to imply equality before the law, and not equality of
rights.1633 Therefore, if international law creates inequalities this by no means violates the
principle of equality since before the law States remain equal. Pursuant to this view equality
simply means legality.1634

381. Despite the forgoing reasoning, it is submitted that sovereign equality of States is a
norm of jus cogens, and thus part of international constitutional law. The concept of sovereign
equality has been developed in the framework of the United Nations. Before, States were
regarded as sovereign and – more disputed in theory and in practice – as equal. However, the
notion of sovereign equality does not merely combine sovereignty and equality: sovereign
equality is larger than the sum of its constituent parts.1635 Yet, an insight in these constituent
parts will provide the fundaments for an examination of the exact meaning and scope of
sovereign equality.

1627
See: supra, Chapter 1, Section 3, § 2, B.
1628
R.P. ANAND, “Sovereign Equality of States in International Law”, Recueil des Cours 1986-II, 36; C. DE
VISSCHER, Théories et réalités en droit international public, Paris, Pedone, 1970, 127-128.
1629
As is aptly illustrated in: S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10, 18.
1630
R. JENNINGS and A. WATTS, Oppenheim’s International Law, Volume I, Peace, Introduction and Part 1,
London, Longman, 1992, 122.
1631
Island of Palmas Arbitration (United States of America v. the Netherlands), Reports of International
Arbitration Awards, Vol. II, 838.
1632
S.S. Wimbledon (United Kingdom, France, Italy and Japan v. Germany, Poland intervening), Judgment,
PCIJ Publ., Series A, No. 1, 25.
1633
R. JENNINGS and A. WATTS, Oppenheim’s International Law, Volume I, Peace, Introduction and Part 1,
London, Longman, 1992, 339-340; H. KELSEN, “The Principle of Sovereign Equality of States as a Basis for
International Organization”, Yale Law Journal 1944, 208-209; P.J. BAKER, “The Doctrine of Legal Equality of
States”, British Yearbook of International Law 1923-1924, 2-3; A. RANDELZHOFER, “General introduction to
Article 2”, in B. SIMMA, H. MOSLER, and A.L. PAULUS (eds.), The Charter of the United Nations: A
Commentary, Vol. I, Oxford, Oxford University Press, 2002, 65.
1634
H. KELSEN, “The Principle of Sovereign Equality of States as a Basis for International Organization”, Yale
Law Journal 1944, 209.
1635
B. FASSBENDER and A. BLECKMANN, “Article 2(1)”, in B. SIMMA, H. MOSLER, and A.L. PAULUS (eds.),
The Charter of the United Nations: A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 70; B.
FASSBENDER, “Sovereignty and Constitutionalism in International Law”, in N. WALKER (ed.), Sovereignty in
Transition, Oxford, Hart, 2003, 125.

346
382. First, if sovereignty would be solely a political concept reflecting a state of affairs in the
international community, it would indeed be impossible to legally derogate from it. However,
this position is difficult to sustain, since sovereignty in the international sphere is a legal
concept. The concept of sovereignty was initially developed by BODIN and HOBBES to operate
in the domestic domain, the latter giving the notion an absolute character; in order to prevent a
community collapsing into disorder it was necessary that all the power had to be transferred to
the State in which preferably one person, the absolute monarch, subsequently wielded
supreme authority over the community without being bound by any legal rule itself.1636 Later
this supreme authority was gradually taken away from the absolute monarch, and given to
other political bodies, in particular parliament, or the people as such culminating in the
volonté générale of ROUSSEAU.1637 From this it follows that the concept of sovereignty as
developed in domestic jurisdictions as supreme political authority cannot function in
international law and indeed was never meant to function at the international level. Therefore,
sovereignty has to be filled in differently at the international level. Sovereignty means legal
authority or competence granted by international law to the State, and until now primarily to
the State alone, to create rules of international law.1638 It thus merely entails independence
from other States’ national legislation, but not that States are not subjected to international
law.1639 That sovereignty is a legal concept is equally demonstrated by the various rights and
duties international law has coupled to the concept. In the Island of Palmas case, Arbitrator
HUBER did not merely stop at sovereignty as independence from other States, but also added
that sovereignty is a right and that States have a corollary duty to protect within their territory
the rights of other States, most notably the right to integrity and inviolability and the
protection of those States’ nationals.

383. From the sovereignty of States, one has deduced its logical corollary that States because
they are independent, are equal. Equality is however not a logically necessary consequence of
independence. States are indeed factually equal because they are all independent, but this does
not mean that they are legally equal. From the factual situation that a political community is
independent from other political communities does not follow that other political
communities regard that community morally or legally as equal. The history of international
law demonstrates that legal equality was only at play between certain communities excluding
others from the scope of international law, although the excluded communities were definitely
independent. Asian and African independent political communities were not admitted to the

1636
BODIN accepted that the monarch was bound by the laws of God, nature and certain human laws common to
all nations: J. BODIN, Les Six Livres de la République, Aalen, Scientia, 1961, 131; T. HOBBES, Leviathan,
London, Penguin Books, 1985, chapter XVIII; R.P. ANAND, “Sovereign Equality of States in International
Law”, Recueil des Cours 1986-II, 23-24.
1637
R.P. ANAND, “Sovereign Equality of States in International Law”, Recueil des Cours 1986-II, 25.
1638
Cf. M. COSNARD, “Sovereign Equality – The Wimbledon sails on”, in M. BYERS and G. NOLTE (eds.),
United States Hegemony and the Foundations of International Law, Cambridge, Cambridge University Press,
2003, 119; B. FASSBENDER, “Sovereignty and Constitutionalism in International Law”, in N. WALKER (ed.),
Sovereignty in Transition, Oxford, Hart, 2003, 131.
1639
R.L. BINDSCHEDLER, “Betrachtungen über die Souveränität”, in INSTITUT UNIVERSITAIRE DE HAUTES
ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en hommage à Paul Guggenheim,
Geneva, Imprimerie de la Tribune, 1968, 174; H. KELSEN, “The Principle of Sovereign Equality of States as a
Basis for International Organization”, Yale Law Journal 1944, 208; B. FASSBENDER, “The United Nations
Charter as Constitution of the International Community”, Columbia Journal of Transnational Law 1998, 582;
A. PETERS, “Humanity as the A and Ω of Sovereignty”, European Journal of International Law 2009, 515-516.

347
family of nations, making international law a matter of the European Christian heartland, later
expanded with the United States and Latin American countries which gained independence
from their colonisers. The Ottoman Empire was only allowed to join the family of nations in
1854, Japan in 1905 after it defeated a civilised nation, the Russian Empire. From this
moment on, Christianity was not the relevant factor to belong to the international community,
but the level of civilization. Between the “civilised” and “uncivilised” political communities
international law did not apply; they were not considered as subjects of international law, but
merely as objects.1640 Moreover, even within the family of nations the principle of equality
was in practice not respected. Some States, the superpowers, were more equal than others. At
the Vienna Congress, nations conquered by Imperial France were to accept the proposals of
the four, later five superpowers, Austria, Prussia, Russia, United Kingdom and France. The
European Concert determined boundaries and intervened in countries to counter
revolutions.1641 The United States intervened in Caribbean and Latin American States. During
the Peace Conference of Paris, less powerful States were barely consulted.1642 It is hence no
wonder that the principle of equality of States was attacked by some proponents of positivism,
at that time a new legal current.1643 Nonetheless, the practice of the smaller States confirmed
the existence of the principle, and Great Powers paid lip service to the concept, making their
practice inconsistent to a certain extent.1644

384. Although, the principle of equality was primarily considered as equality before the law,
it has also been argued that equality means equality of rights.1645 This does not entail absolute
equality of rights and obligations, but the capacity to have the same rights and obligations
under international law. In other words, States have potentially the same rights and an equal
power of realizing them, leading to the conclusion that theoretically there is no difference in
status under international law. Yet, it is a truism that States have unequal status under

1640
A.P. ANAND, “Sovereign Equality of States in International Law”, Recueil des Cours 1986-II, 54-57; B.
KINGSBURY, “Sovereignty and Inequality”, European Journal of International Law 1998, 605-606; G. ABI-
SAAB, “‘Humanité’ et ‘Communauté internationale’ dans l’évolution de la doctrine et de la pratique du droit
international”, in R. AGO et al. (eds.), Humanité et droit international, Mélanges René-Jean Dupuy, Paris,
Éditions Pedone, 1991, 9.
1641
B. FASSBENDER and A. BLECKMANN, “Article 2(1)”, in B. SIMMA, H. MOSLER, and A.L. PAULUS (eds.),
The Charter of the United Nations: A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 75; R.P.
ANAND, “Sovereign Equality of States in International Law”, Recueil des Cours 1986-II, 62.
1642
B. KINGSBURY, “Sovereignty and Inequality”, European Journal of International Law 1998, 603-604; R.P.
ANAND, “Sovereign Equality of States in International Law”, Recueil des Cours 1986-II, 82 et seq.
1643
P.H. KOOIJMANS, The Doctrine of the Legal Equality of States, An Inquiry into the Foundations of
International Law, Leiden, Sythoff, 1964, 101 et seq.
1644
Cf. Article 4 Joint Four-Nation Declaration of the Moscow Conference (1943), at
http://avalon.law.yale.edu/wwii/moscow.asp; see also: R.P. ANAND, “Sovereign Equality of States in
International Law”, Recueil des Cours 1986-II, 80-81 and 90; G. SIMPSON, “The Great Powers, Sovereign
Equality and the Making of the United Nations Charter”, Australian Yearbook of International Law 2000, 143.
1645
Most notably by VATTEL: “Puisque les hommes sont naturellement égaux, & que leurs droits & obligations
sont les mêmes, comme venant également de la Nature, les Nations composées d'hommes, & considérées
comme autant de personnes libres qui vivent ensemble dans l'état de Nature, sont naturellement égales, &
tiennent de la Nature les mêmes obligations & les mêmes droits. La puissance ou la foiblesse ne produisent, à
cet égard, aucune différence. Un Nain est aussi bien un homme, qu'un Géant; Une petite République n’est pas
moins un Etat souverain que le plus puissant Roïaume.” E. DE VATTEL, Le droit des gens ou principes de la loi
à naturelle appliqués à la conduite et aux affaires des nations et des souverains, Washington, Carnegie
Institution, 1916, Vol. I, Préliminaires, 11, § 18; see also: R.P. ANAND, “Sovereign Equality of States in
International Law”, Recueil des Cours 1986-II, 107-113.

348
international law. Some States are permanent member of the Security Council and thus enjoy
a different status. Nuclear weapon States have a different status under the Treaty on the Non-
Proliferation of Nuclear Weapons. Hence, the principle of equality seems to oscillate between
two extremes: either formal equality, which justifies every inequality, or equality of rights
which is from the point of view of international law as it is now, a mere chimera.

385. Sovereignty is a legal concept at the international level and each sovereign State is at
least formally equal before the law. Yet, sovereign equality is a new concept that draws on
the notions of sovereignty and equality, but is more than these two components. It emphasizes
equality in law over sovereignty; at the same time this did not entail that a greater role of the
international community over all States is excluded.1646 During debates at the San Francisco
Conference the Rapporteur of Sub-Committee I/1/A indicated that sovereign equality
included the elements that States are juridically equal, that every State enjoys the rights
inherent in full sovereignty (without indicating these rights), the respect for the personality of
the State as well as its territorial integrity and political independence, while also stressing that
States should comply faithfully with their international obligations.1647 It indicates that respect
for international law is an integral element of sovereign equality and that sovereignty in
international law thus does not entail that States are above the law. This is equally confirmed
in Article 14 Draft Declaration on the Rights and Duties of States which states that the
sovereignty of every State is subject to the supremacy of international law. The Declaration
furthermore establishes that every State has the right to independence and to exercise freely
all its legal powers, that every State may not intervene in the internal and external affairs of
other States and that every State has the right to legal equality in (emphasis added) law.1648 As
a result, sovereign equality seems to be intrinsically linked with the existence of a legal
community in which all members are equal in law and whose relations are governed by
international law. In a second instrument, the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation amongst States in accordance with the
Charter of the United Nations,1649 adopted by consensus, the major rights and obligations in
the Charter are authoritatively interpreted. The principle of sovereign equality of States is
determined in the following way:

“All States enjoy sovereign equality. They have equal rights and duties and are
equal members of the international community, notwithstanding differences of an
economic, social, political or other nature. In particular, sovereign equality
includes the following elements:
(a) States are judicially equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political independence of the State are inviolable;

1646
B. FASSBENDER and A. BLECKMANN, “Article 2 (1)”, in B. SIMMA, H. MOSLER, and A.L. PAULUS (eds.),
The Charter of the United Nations: A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 83.
1647
Report of the Rapporteur of Sub-Committee I/1/A to Committee I/1, Chapter II, UNCIO VI, 717 et seq.
1648
Articles 1, 3, 5 and 14 Declaration on the Rights and Duties of States, annex to General Assembly
Resolution 375 (IV).
1649
Declaration on Principles of International Law concerning Friendly Relations and Co-operation amongst
States in Accordance with the Charter of the United Nations, annex to General Assembly Resolution 2625
(XXV).

349
 (e) Each State has the right freely to choose and develop its political, social,
economic and cultural systems;
(f) Each State has the duty to comply fully and in good faith with its international
obligations and to live in peace with other States.”

In the United Nations system all States are considered as equal in law since they have
equal rights and duties and are equal members of an international legal community.
Furthermore, it is clear that sovereign equality is not limited to the elements listed, which
implies that sovereign equality can be gifted with more elements over time. This has
happened in the Declaration, since (e) is a new element of sovereign equality, a consequence
of the right to self-determination as part of international law.1650

386. Although Article 2 (1) Charter of the United Nations in the first place concerns the
relation between the members of the Organisation and the Organisation itself, it equally
applies to the relation between Member States as is evidenced by the wording of Article 78
Charter of the United Nations. Therefore, the United Nations and its member States have to
respect the sovereignty or independence of every State whereby sovereignty entails various
rights and obligations which are equally granted by international law to all States in the
international community. In particular, this entails that the autonomy of the State, as
determined by international law should be respected by States and the United Nations, despite
evident differences of an economic, social, or political nature. In other words, States or the
United Nations may not intervene to bring about changes in the legally recognized autonomy
of States under international law. This does not mean that States can adopt whatever political
system they want since their autonomy is given and determined by international law. For
instance, States may not adopt policies which go against fundamental human rights (e.g.
genocide or Apartheid), since under international law they have the obligation to respect these
rights. If a State violates these rights the international community may intervene through the
United Nations or States can take individually actions to put to a halt these violations. On the
other hand, the United Nations and other States may not intervene to change a democratically
elected government or to change the economic policy of another country if it is not
contravening international law.1651 Thus, States remain free to, in accordance with
international law, determine their political, social, economic or cultural system.1652
Furthermore, States may participate in the international community to create, apply and
adjudicate international law and claims on the basis of international law. A State may in
principle not be excluded from the international community because it has a different political
or economic system if they are in conformity with international law. Lastly, States have to
treat each other as equals in their mutual relations. However, this does not go further than the
respect for the personality of each and every State and for the core rights that flow from the
principle of sovereign equality. Beyond this, sovereign equality of States does not entail that

1650
B. FASSBENDER and A. BLECKMANN, “Article 2 (1)”, in B. SIMMA, H. MOSLER, and A.L. PAULUS (eds.),
The Charter of the United Nations: A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 80.
1651
For the classical dictum on the prohibition of intervention in the internal affairs of a State: Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment, Merits,
ICJ Rep. 1986, § 205.
1652
Ibid., § 205; B. FASSBENDER and A. BLECKMANN, “Article 2 (1)”, in B. SIMMA, H. MOSLER, and A.L.
PAULUS (eds.), The Charter of the United Nations: A Commentary, Vol. I, Oxford, Oxford University Press,
2002, 84.

350
each State can benefit from the same rights accorded by one State to another.1653 There is even
no duty under international law to have diplomatic contacts with a State, but one cannot deny
the personality of a State which is recognised by a significant part of the international
community.

387. Sovereign equality is thus the core of rights and obligations which is accorded by
international law to each and every State. The question is than whether States can derogate
from the principle of sovereign equality. This would be the case if a State would conclude a
treaty with another State allowing the first State to intervene in the political, economic, social
or cultural order in the other State when that order is against the national interest of the first
State. Such a convention would infringe the sovereign equality of States, since it gives the
first State the unfettered unilateral right to intervene in the autonomy of another State.
Furthermore, treaties establishing a hierarchy between States on a political, economic, social,
cultural or ethnic basis would derogate from the principle of sovereign equality. For instance
treaties establishing that the parties to them are civilised and other States not and laying down
a duty to civilize the other States would go against sovereign equality of States. Similarly, the
contention that liberal States should be treated differently than other States and that liberal
States have the right to intervene in non-liberal States, might be at odds with the principle of
sovereign equality, if it oversteps the limits of the autonomy of these illiberal States granted
by international law.1654 For sure, if these illiberal States infringe human rights law, they may
be sanctioned and the Security Council may permit intervention because these systematic
violations of human rights constitute a threat to the international peace and security. Yet,
those States may not be subject to intervention only because they are considered illiberal
States by some other States.

1653
Ibid., 88-89.
1654
The current of liberalism in international law is not homogenous and it is not our purpose to discard every
liberal theory in international law. In general there are two main currents of liberalism in international law:
pluralist liberalism, which aims at including every State in the international community and is also called
Charter liberalism, and anti-pluralist liberalism which draws a distinction between States on the basis of their
(liberal or illiberal) domestic legal system. But even in the latter current, which might go against the notion of
sovereign equality, there is a mild and strong variant. Unlike the mild variant, the strong variant argues for
exclusion of and intervention in (some) illiberal States, and it is this theory which will be most likely at odds
with the principle of sovereign equality. For a general overview, see: G. SIMPSON, “Two Liberalisms”,
European Journal of International Law 2001, 537 et seq; mild forms of anti-pluralist are represented by
SLAUGHTER, who describes how a world of liberal States would act, but does not proscribe exclusion of illiberal
States from the international community or intervention in these countries, and FRANCK, who in general favours
engagement of illiberal States, although on occasion multilateral intervention on the basis of a UN-mandate
might be warranted; see: A.M. SLAUGHTER, “International Law in a World of Liberal States”, European
Journal of International Law 1995, 503 et seq; T.M. FRANCK, “The Emerging Right to Democratic
Governance”, American Journal of International Law 1992, 46 et seq (especially 84-85); strong anti-pluralist
liberal scholars, who do favour exclusion and intervention of some illiberal States (and sometimes very
cautiously) are TESÓN and REISMAN: F. TESÓN, “The Kantian Theory of International Law”, Columbia Law
Review 1992, 53 et seq.; W. MICHAEL REISMAN, “Sovereignty and Human Rights in Contemporary
International Law”, American Journal of International Law 1990, 866. For criticism on anti-pluralist theory in
international law: J.E. ALVAREZ, “Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory”,
European Journal of International Law 2001, 183 et seq.

351
§2. The prohibition on the use of force and the duty to settle disputes peacefully

388. The prohibition of the use of force is a cardinal rule in international law. A
constitutional legal order can only be maintained if the subjects of that order may not use
force to enforce their legal claims. Therefore, at the international level relations between
States can only be governed by law if the use of force is prohibited and reserved to a central
authority, in casu the Security Council of the United Nations.1655 Furthermore, the sovereign
equality of States can only be guaranteed if more powerful States are prevented from using
force, which requires a prohibition of the use of force and enforcement of this norm by the
United Nations.1656 The prohibition of the use of force covers all threats to and uses of
force,1657 and may lead to criminal sanctions in case of aggression,1658 which constitutes a
serious violation of the prohibition on the use of force.1659 Linked to the prohibition on the use
of force is that no territorial acquisitions can be gained through the use of force,1660 that
forcible countermeasures may not be employed,1661 and that treaties that result from the use of
force are invalid.1662 Moreover, related to the prohibition of the use of force is the principle
that international disputes should be settled peacefully. The prohibition of the use of force is
qualified however: the use of force that is consistent with the Charter of the United Nations is
allowed.1663 This includes the right to use force in self-defence and enforcement action by or
on the authorisation of the Security Council. Furthermore, consent to use force may be given

1655
B. FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia
Journal of Transnational Law 1998, 566
1656
Ibid., 583.
1657
Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, ICJ Rep. 1949, 35; Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 47; Principle on the Prohibition on the
Use of Force, Declaration on Principles of International Law, Friendly Relations and Co-operation amongst
States in Accordance with the Charter of the United Nations, Annex to General Assembly Resolution 2625
(XXV).
1658
Declaration on Principles of International Law, Friendly Relations and Co-operation amongst States in
Accordance with the Charter of the United Nations, Annex to General Assembly Resolution 2625 (XXV);
Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, Annex I to
Review Conference Resolution RC-Res.6 (2010).
1659
Preamble § 5 Definition of Aggression, Annex to General Assembly Resolution 3301 (XXIX).
1660
Declaration on Principles of International Law, Friendly Relations and Co-operation amongst States in
Accordance with the Charter of the United Nations, Annex to General Assembly Resolution 2625 (XXV); Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep.
2004, § 87.
1661
Declaration on Principles of International Law, Friendly Relations and Co-operation amongst States in
Accordance with the Charter of the United Nations, Annex to General Assembly Resolution 2625 (XXV);
Article 50 (1)(a) Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001); Corfu
Channel Case (United Kingdom v. Albania), Merits, Judgment, ICJ Rep. 1949, 35; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986,
§ 249.
1662
Article 52 Vienna Convention on the Law of Treaties (1969).
1663
Declaration on Principles of International Law, Friendly Relations and Co-operation amongst States in
Accordance with the Charter of the United Nations, Annex to General Assembly Resolution 2625 (XXV);
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, ICJ Rep. 1986, § 193; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ
Rep. 1996, § 38.

352
in advance, but any action that goes beyond the permission, implies a violation of the
prohibition.1664

389. The prohibition of the use of force is generally recognized as a peremptory norm, as
well in State practice1665 as in doctrine.1666 Furthermore, the prohibition on the use of force

1664
See: Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits,
Judgment, ICJ Rep. 2005, §§ 42 et seq.
1665
Kenya, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 31; Cuba, 52nd Meeting of the Committee of the Whole, l.c., § 34; Lebanon,
52nd Meeting of the Committee of the Whole, l.c., § 43; Nigeria, 52nd Meeting of the Committee of the Whole,
l.c., 1969, § 48; Sierra Leone, 53rd Meeting of the Committee of the Whole, l.c., 1969, § 9; Madagascar, 53rd
Meeting of the Committee of the Whole, l.c., § 22; Poland, 53rd Meeting of the Committee of the Whole, l.c., §
35; Uruguay, 53rd Meeting of the Committee of the Whole, l.c., § 48; The United Kingdom, 53rd Meeting of the
Committee of the Whole, l.c., 1969, § 59; Cyprus, 53rd Meeting of the Committee of the Whole, l.c., § 69;
Byelorussia, 54th Meeting of the Committee of the Whole, l.c., § 9; Italy, 54th Meeting of the Committee of the
Whole, l.c., § 42; Romania, 54th Meeting of the Committee of the Whole, l.c., § 55; Bulgaria, 54th Meeting of
the Committee of the Whole, l.c., § 66; Czechoslovakia 55th Meeting of the Committee of the Whole, l.c., § 26;
Federal Republic of Germany, 55th Meeting of the Committee of the Whole, l.c., § 31; Ceylon, 55th Meeting of
the Committee of the Whole, l.c., § 38; Tanzania, 56th Meeting of the Committee of the Whole, l.c., § 2;
Ukraine, 56th Meeting of the Committee of the Whole, l.c., § 6; Philippines, 56th Meeting of the Committee of
the Whole, l.c., § 20; Canada, 56th Meeting of the Committee of the Whole, l.c., § 22; Switzerland, 56th
Meeting of the Committee of the Whole, l.c., § 26; Malaysia, 56th Meeting of the Committee of the Whole, l.c.,
§ 51; USSR, 76th Meeting of the Committee of the Whole, l.c., § 38; Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Memorial of Nicaragua, ICJ Pleadings,
Vol. IV, § 213; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Counter Memorial of the United States, ICJ Pleadings, Vol. II, § 314;
Accordance with International Law of the Unilateral Declaration of Independence by the Provisional
Institutions of Self-Government of Kosovo, Written Statement of Ireland (17 April 2009), § 22, at
http://www.icj-cij.org/docket/files/141/15662.pdf; Id., Written Statement of Serbia (17 April 2009), §§ 496-497,
at http://www.icj-cij.org/docket/files/141/15642.pdf; Id., Oral Statement of Jordan, CR 2009/31, 9 December
2009, 38, at http://www.icj-cij.org/docket/files/141/15728.pdf; Id., Oral Statement of the United States of
America, CR 2009/30, 8 December 2009, 30, at http://www.icj-cij.org/docket/files/141/15726.pdf; Id., Oral
Statement of Azerbaijan, CR 2009/27, 3 December 2009, 18, at http://www.icj-
cij.org/docket/files/141/15716.pdf; Legality of the Threat or Use of Nuclear Weapons, Written Statement of
Nauru (15 June 1995), 3-4, at http://www.icj-cij.org/docket/files/95/8680.pdf; Id., Written Statement of
Malaysia (19/06/1995), 3 and 7, at http://www.icj-cij.org/docket/files/95/8696.pdf; Id., Oral Statement of
Indonesia, CR 1995/25, 3 November 1995, 19, at www.icj-cij.org/docket/files/95/5931.pdf; Id., Oral Statement
of Iran, CR 1995/26, 6 November 1995, 22, at www.icj-cij.org/docket/files/95/5933.pdf; Id., Oral Statement of
New Zealand, CR 1995/28, 9 November 1995, 42, at www.icj-cij.org/docket/files/95/5937.pdf; Id., Oral
Statement of the Philippines, CR 1995/28, 9 November 1995, 56 and 60-61, at www.icj-
cij.org/docket/files/95/5937.pdf; Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Written Statement of Jordan (30 January 2004), § 2.29 and §§ 5.37 et seq, at www.icj-
cij.org/docket/files/131/1559.pdf. More instances of practice can be found in: J.A. GREEN, “Questioning the
Peremptory Status of the Prohibition of the Use of Force”, Michigan Journal of International Law 2010-2011,
245 et seq.
1666
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 50-
51; E.-U. PETERSMANN, “How to Reform the UN-System? Constitutionalism, International Law, and
International Organizations”, Leiden Journal of International Law 1997, 426; R.St. MACDONALD, “The
International Community as a Legal Community”, in R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards
World Constitutionalism, Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 870; B.
FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia Journal
of Transnational Law 1998, 590; A. FISCHER-LESCANO, “Die Emergenz der Globalverfassung”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 2003, 745; M. PAYANDEH, “Rechtscontrolle des UN-

353
has been referred to as a peremptory norm in the Military and Paramilitary Activities in and
against Nicaragua case.1667 Moreover, in the Barcelona Traction Light and Power Company,
Limited, the prohibition of aggression was considered to be an obligation erga omnes,1668
which is one of the characteristics of a peremptory norm.1669 Similarly, the International Court
of Justice implicitly considered that the prohibition of the use of force and its exceptions was
part of jus cogens since it held that a bilateral treaty had to be interpreted in accordance with
the prohibition of the use of force in accordance with the Charter of the United Nations,1670
following the argument of Iran that upholding an interpretation beyond the peremptory
prohibition of the use of force would render the treaty invalid.1671

§3. The prohibition of intervention

390. The prohibition of intervention has been considered essential for the international legal
order1672 and a peremptory norm.1673 It is linked to the principle of sovereign equality of

Sicherheitsrates durch staatliche und überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht 2006, 56; H.P. AUST and N. NASKE, “Rechtsschutz gegen den UN-Sicherheitsrat durch
europäische Gerichte? Die Rechtsprechung des EuG zur Umsetzung ‘gezielter Sanktionen’ aus dem
Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht 2006, 608; U. SCHEUNER, “Conflict of Treaty
Provisions with A Peremptory Norm of General International Law and Its Consequences, Comments on Arts.
50, 61 and 67 of the ILC’s Draft Articles on the Law of Treaties”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1967, 526; A.C. BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under
the FSIA: A Proposed Exception to Immunity for Violations of Peremptory Norms of International Law”,
California Law Review 1989, 389. But see: J.A. GREEN, “Questioning the Peremptory Status of the Prohibition
of the Use of Force”, Michigan Journal of International Law 2010-2011, 252 et seq.
1667
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 190. See also: Separate Opinion Judge NAGENDRA SINGH, Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
ICJ Rep. 1986, 153; Separate Opinion Judge SETTE-CAMARA, l.c., 199.
1668
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34.
1669
Supra, Nos. 247 et seq.
1670
Oil Platforms (Iran v. United States of America), Merits, Judgment, ICJ Rep. 2003, §§ 41-42; Dissenting
Opinion Judge AL KHASAWNEH, Oil Platforms (Iran v. United States of America), Merits, Judgment, ICJ Rep.
2003, § 9; Dissenting Opinion Judge ELARABY, Oil Platforms (Iran v. United States of America), Merits,
Judgment, ICJ Rep. 2003, 291; Separate Opinion Judge SIMMA, Oil Platforms (Iran v. United States of
America), Merits, Judgment, ICJ Rep. 2003, § 9.
1671
Supra, No. 237.
1672
Declaration on Principles of International Law concerning Friendly Relations and Co-operation amongst
States in Accordance with the Charter of the United Nations, Annex to General Assembly Resolution 2625
(XXV); Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, ICJ Rep. 1949, 35; Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
ICJ Rep. 1986, § 202.
1673
Ceylon, 39th Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 34; USSR, 52nd Meeting of the Committee of the Whole, l.c., § 3; Cyprus, 53rd
Meeting of the Committee of the Whole, l.c., § 69; Federal Republic of Germany, 19th Plenary Meeting, United
Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 27; Ecuador, 19th Plenary
Meeting, l.c., § 35; Ukraine, 19th Plenary Meeting, l.c., § 75; Byelorussia: 20th Plenary Meeting, l.c., § 48;
Separate Opinion Judge SETTE-CAMARA, Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986, 199; P.-M. DUPUY, “The
Constitutional Dimension of the Charter of the United Nations Revisited”, Max Planck Yearbook of United
Nations Law 1997, 8; A. FISCHER-LESCANO, “Die Emergenz der Globalverfassung”, Zeitschrift für

354
States and the prohibition of the use of force.1674 The unlawful use of force against a State is a
particular instance of intervention in the internal affairs of another State.1675 The prohibition
of non-intervention does not only protect States, but protects the political, social, economic
and cultural choices which a people has made within a State. Since humanity is diverse and
split over issues of justice, the prohibition of non-intervention ensures that each State is
protected against unlawful intrusions from other States that have made other choices.
Therefore, in essence the prohibition of non-intervention guarantees the continuing peaceful
coexistence of States with diverse backgrounds and also protects the right of self-
determination of the people of a State, as long as the exercise of that right respects
international law.1676 In this respect, the principle of non-intervention allows a State to choose
the type of government and the adoption of social, cultural and economic policies, but only
for the domains over which a State can decide freely,1677 thereby excluding a type of
government and policies that are contrary to international law, or even to peremptory norms,
as the apartheid regime in South Africa and Southern Rhodesia demonstrated.

391. The prohibition of intervention into the internal affairs of a State is however not
absolute. First, intervention is only not allowed in matters that are essentially within the
domestic jurisdiction of a State.1678 Second, the interference has to be aimed at coercing the
State in giving in one of its sovereign rights or giving an advantage to another State.1679 This

ausländisches öffentliches Recht und Völkerrecht 2003, 745; E.-U. PETERSMANN, “How to Reform the UN-
System? Constitutionalism, International Law, and International Organizations”, Leiden Journal of
International Law 1997, 426; R.St. MACDONALD, “The International Community as a Legal Community”, in
R.St.J. MACDONALD and D.M. JOHNSON (eds.), Towards World Constitutionalism, Issues in the legal Ordering
of the World Community, Leiden, Nijhoff, 2005, 870; M. PAYANDEH, “Rechtscontrolle des UN-Sicherheitsrates
durch staatliche und überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
2006, 56.
1674
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 202; A. CASSESE, International Law in a Divided World, Oxford,
Clarendon, 1986, 147; P.-M. DUPUY, “The Constitutional Dimension of the Charter of the United Nations
Revisited”, Max Planck Yearbook of United Nations Law 1997, 8; M. JAMNEJAD and M. WOOD, “The Principle
of Non-intervention”, Leiden Journal of International Law 2009, 348; A. FISCHER-LESCANO, “Die Emergenz
der Globalverfassung”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2003, 745; J. SHEN,
“The Non-intervention Principle and Humanitarian Intervention in International Law, International Legal
Theory 2001, 7-8; D. KRITSIOTIS, “Reappraising Policy Objections to Humanitarian Intervention”, Michigan
Journal of International Law 1997-1998, 1043.
1675
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 205.
1676
A. PETERS, “Humanity as the A and Ω of Sovereignty”, European Journal of International Law 2009, 533-
534.
1677
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 205.
1678
J. KOKOTT, “Souveräne Gleichheit und Demokratie im Völkerrecht”, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 2004, 531.
1679
Declaration on Principles of International Law concerning Friendly Relations and Co-operation amongst
States in Accordance with the Charter of the United Nations, Annex to UN General Assembly Resolution 2625
(XXV); Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 205; M. JAMNEJAD and M. WOOD, “The Principle of Non-intervention”,
Leiden Journal of International Law 2009, 348.

355
does not only include the use of force or support to rebel groups,1680 but also economic
pressure of such an extent that a State is forced to adopt a decision that it normally should
have decided freely.1681 Yet, interference or intervention that does not coerce a State is
therefore not unlawful, especially not if the aim is to invoke the responsibility of a State for a
breach of international law, even if it concerns the treatment of that State’s nationals. It also
does not exclude that a State takes countermeasures against another State provided that they
are lawful.1682 Moreover, the prohibition of intervention may be restricted by consent: a State
may agree that an international organization may intervene in certain cases, for instance, the
Charter of the African Union allows intervention in case of genocide, crimes against humanity
and war crimes, whilst at the same time reaffirming the prohibition of non intervention.1683
Although the prohibition may be restricted, it would not be allowed to completely set aside
the prohibition and allow complete intervention in a State by outside forces, especially in
matters that are not governed by international law.

§4. The right to self-determination of peoples

392. The right of self-determination of peoples does not feature in Article 2 Charter of the
United Nations, but Article 1 states that one of the goals and purposes of the United Nations is
to develop international relations on the basis of the principle of self-determination of
peoples. In any event, the right to self-determination of peoples has been developed within the
framework of the United Nations in its struggle to end colonialism. The scope of the right is
however ambiguous. On the one hand, it is a right owned to peoples to be free from alien
domination and subjugation. Several General Assembly resolutions refer to the right of
peoples to self-determination in case of colonial oppression.1684 Furthermore, the
International Court of Justice recognized the right to self-determination in its Namibia
opinion.1685 In addition, the right has not only been invoked in colonial situations, but also in
case of racist regimes,1686 such as in South Africa or Southern Rhodesia, or situations where a
people is dominated by a foreign State, that is not a colonial power, as in the case of the
people of Western Sahara, East Timor and Palestine.1687 This is reflected in Article 1 (4)
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the

1680
Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Merits,
Judgment, ICJ Rep. 2005, §§ 164-165.
1681
M. JAMNEJAD and M. WOOD, “The Principle of Non-intervention”, Leiden Journal of International Law
2009, 370-371; however, this is not lightly to be assumed: Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep. 1986, §§ 244-245.
1682
Ibid., 379-380.
1683
Article 4 Charter of the African Union (2000).
1684
Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General Assembly
Resolution 1514 (XV); Declaration on Principles of International Law concerning Friendly Relations and Co-
operation amongst States in Accordance with the Charter of the United Nations, Annex to UN General
Assembly Resolution 2625 (XXV).
1685
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 Rep. 1971, §§ 52-53.
1686
UN General Assembly Resolution 35/118.
1687
Western Sahara, Advisory Opinion, ICJ Rep. 1975, § 162; East Timor (Portugal v. Australia), Judgment,
ICJ Rep. 1995, § 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Rep. 2004, § 122.

356
Protection of Victims of International Armed Conflicts, which speaks of people involved in
an armed struggle against a colonial power, racist regime or alien domination. Furthermore,
the African Charter on Human and Peoples Rights also states that colonized and oppressed
peoples have the right to free themselves from domination.1688 These situations are similar to
colonialism in that a whole people is oppressed and barred from governing themselves either
by a racial minority or a foreign State.1689
On the other hand, the right to self-determination is a right of all peoples and not only a
right for oppressed peoples.1690 The broader right of self-determination runs into the problem
of indeterminacy of the subject to which the right is owed, a people. In case of a people under
subjugation the notion of people is relatively clear. A colonising power is a State that is
geographically located in another continent, with a different ethnic and cultural background,
and has arbitrarily subordinated the colonial territory to the metropolitan territory.1691 In case
of the racist regimes of South Africa and Southern Rhodesia a white minority was subjugating
the black majority. Alien domination involves a people that before exercising its right to self-
determination was subjugated by another State. However, when a people has freed itself from
alien subjugation or when it is has never experienced this, the right to self-determination still
applies and continues to apply. In this context it will not always be clear whether the right is
owed by the different peoples in a State or only to the people of a State in its entirety. The
people may also start to define themselves differently as being constituted of multiple people,
or stress one of the many common traits as important to their identity as a separate people
from the other peoples in the State.1692 The only consistent approach to self-determination of
peoples within an established State (so-called internal self-determination) is a human rights
approach,1693 whereby the right to self-determination is the necessary condition for the
exercise of all other human rights by an individual. Internally, the right to self-determination
is aimed at guaranteeing individuals participation and a voice in a community.1694 In the
words of KLABBERS, self-determination is “the right to be heard and be taken seriously”.1695
In this respect, it has been argued that self-determination implies a democratic political

1688
Article 20 (2) African Charter on Human and Peoples’ Rights (1981).
1689
R. MCCORQUODALE, “Self-determination: A Human Rights Approach”, International and Comparative
Law Quarterly 1994, 862-863.
1690
Article 1 International Covenant on Civil and Political Rights (1966); Article 1 International Covenant on
Economic, Social and Cultural Rights (1966); Article 20 (1) African Charter on Human and Peoples’ Rights
(1981); Article 2 Arab Charter of Human Rights (2004).
1691
Principles IV and V Principles which Should Guide Members in Determining whether or not an Obligation
Exists to Transmit the Information Called for in Article 73 e of the Charter of the United Nations, Annex to UN
General Assembly Resolution 1541 (XV).
1692
R. MCCORQUODALE, “Self-determination: A Human Rights Approach”, International and Comparative
Law Quarterly 1994, 866-868.
1693
The human rights approach explains why self-determination may not be invoked the justify a secession,
provided the State represents the whole population: as a human right it may be balanced by the interests of the
State, including not to be split up by the secessionist struggle of one group against the other group(s); it also
explains why self-determination may not be invoked to justify human rights violations since self-determination
as a human right must be balanced against other human rights: R. MCCORQUODALE, “Self-determination: A
Human Rights Approach”, International and Comparative Law Quarterly 1994, 875 et seq.
1694
Human Rights Committee, General Comment No. 12, Article 1 (The Right to self-determination of people),
UN Doc. CCPR/C/21/Rev.1, § 1.
1695
J. KLABBERS, “Self-Determination in International Law”, Human Rights Quarterly 2006, 202.

357
structure.1696 Nonetheless, a right to self-determination is broader and also includes cultural
and societal elements that may not match with a democratic organization of a State.1697
Besides internal self-determination, a people of a State also has the right to be free from
external coercion. The right to self-determination is thus linked to the principle of sovereign
equality of States, since one of the component rights of sovereign equality is the right to
determine the political, economic, social and cultural direction of a State, provided it remains
within the limits of international law.1698 Hence, at first sight it seems that the external right to
self-determination of peoples in established States does not add anything that is not yet
covered by the principle of sovereign equality of States, the prohibition of the use of force or
the duty of non-intervention. Nonetheless, the combination of self-determination of peoples
and sovereign equality of States indicates that international law is made by peoples who have
exercised their right to self-determination and have formed or joined a State equal to other
States formed through self-determination. Since the right to self-determination is continuing,
international law is the result of the continued self-determination of peoples through
sovereign equal States interacting with each other.

393. The right to self-determination has been considered a norm of jus cogens.1699
Furthermore, the right to self-determination has been qualified as an obligation erga omnes by

1696
See: T. FRANCK, “The Emerging Right to Democratic Governance”, American Journal of International Law
1992, 46.
1697
R. MCCORQUODALE, “Self-determination: A Human Rights Approach”, International and Comparative
Law Quarterly 1994, 865; A. PETERS, “Humanity as the A and Ω of Sovereignty”, European Journal of
International Law 2009, 541.
1698
Supra, No. 385.
1699
Supra, note 668 and 1029; Cuba, 52nd Meeting of the Committee of the Whole, United Nations Conference
on the Law of Treaties, Official Records, Vol. I, 1969, § 34; Madagascar, 53rd Meeting of the Committee of the
Whole, l.c., § 22; Sierra Leone, 53rd Meeting of the Committee of the Whole, l.c., § 9; Ghana, 53rd Meeting of
the Committee of the Whole, l.c., § 16; Poland, 53rd Meeting of the Committee of the Whole, l.c., § 35; Cyprus,
53rd Meeting of the Committee of the l.c., § 69; Byelorussia, 54th Meeting of the Committee of the Whole, l.c., §
9; Bulgaria, 54th Meeting of the Committee of the Whole, l.c., § 66; Czechoslovakia, 55th Meeting of the
Committee of the Whole, l.c., § 26; Ukraine, 56th Meeting of the Committee of the Whole, l.c., § 6; Ecuador,
19th Plenary Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 35;
Cuba, 19th Plenary Meeting, l.c., § 42; Poland, 19th Plenary Meeting, l.c., § 71; Byelorussia, 20th Plenary
Meeting, l.c., § 48; Syria, 22nd Plenary Meeting, l.c., § 12; Afghanistan, 22nd Plenary Meeting, l.c., § 19; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Written Statement of Jordan
(30 January 2004), §§ 5.46 et seq, at www.icj-cij.org/docket/files/131/1559.pdf; see also: UN General
Assembly Resolution 35/118, § 5; Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment,
10 December 1998, § 147; Separate Opinion Judge AMMOUN, Barcelona Traction Light and Power Company,
Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Rep. 1970, 305; Separate Opinion Judge ad hoc
DUGARD, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda),
Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 10; A. CASSESE, International Law in a Divided
World, Oxford, Clarendon, 1986, 136; A. CASSESE, Self-determination of Peoples, A Legal Reappraisal,
Cambridge, Cambridge University Press, 1994, 171-172; J. DUGARD, Recognition and the United Nations,
Cambridge, Cambridge University Press, 1987, 158 et seq; C. PARKER and L.B. NEYLON, “Jus Cogens:
Compelling the Law of Human Rights”, Hastings International and Comparative Law Review 1988-1989, 440-
441; B. FASSBENDER, “The United Nations Charter as Constitution of the International Community”, Columbia
Journal of Transnational Law 1998, 590; A. FISCHER-LESCANO, “Die Emergenz der Globalverfassung”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2003, 745; M. PAYANDEH, “Rechtscontrolle des
UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 2006, 56.

358
the International Court of Justice in the East Timor case1700 and it has been demonstrated that
peremptory norms and obligations erga omnes are identical. Moreover, recently, the
International Court of Justice has applied the regime of serious breaches of peremptory norms
to the right of the Palestinian people to self-determination.1701 The Court thereby endorsed
that the right of people to self-determination is part of jus cogens. More disputed is whether
the incidents to the right are also peremptory, especially the right of permanent sovereignty
over natural resources. Nonetheless, the permanent sovereignty over natural resources is an
integral part of the right to self-determination, since self-determination also involves the
pursuing of economic development, which implies that they can dispose of their natural
resources as they like and that they may not be deprived of their means of subsistence.1702
Furthermore, in the East Timor case, the International Court of Justice recognized the
relevance of the right to self-determination in a case that centred on the conclusion of a treaty
dealing with the delimitation of the continental shelf. Herein lays the core of permanent
sovereignty over natural resources: a people may freely use or dispose its natural resources
but agreements that alienate the decision-making power over all or part of the natural
resources or agreements concluded by a State that does not represent the people will be
void.1703

SECTION.3. PEREMPTORY NORMS IN HUMAN RIGHTS LAW AND HUMANITARIAN LAW

394. The international community comprises all of humanity organized in States,

international organizations, peoples, non-governmental organizations, companies, religions,
etc. At this point in time humankind is politically mainly organized in States. At the
international level the primary authorities that govern humankind are thus States that have a
responsibility over a certain territory. In order to advance the interests of the peoples States
represent and indirectly of humanity, international law has set out the structural norms which
determine how States qua authorities should interact with each other in order to solve the
problems that affect mankind. Hence, international law has determined that international law-
making is done by sovereign equal States that are based on the continued exercise of self-
determination of the people they represent. In addition, States have to respect the autonomy of
other States and are thus barred to use force and to intervene in the affairs of other States.
Hence, the constitutional norms of the international community provide for the organization
of politics and law-making. It is however another feature of constitutional law that the
exercise of power within a certain structure is limited by norms that protect the rights of the

1700
East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, § 29.
1701
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Rep. 2004, § 155 and § 159.
1702
Article 1 (1) and (2) International Covenant of Civil and Political Rights (1966); Article 1 International
Covenant Economic, Social and Cultural Rights (1966); Article 21 (1) African Charter on Human and Peoples’
Rights (1981); Article 2 (1) Arab Charter on Human Rights (2004); UN General Assembly Resolution 1803
(XVII). See also: Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda),
Mémoire de la République démocratique du Congo, Vol I, 2000, 145, § 3.50, at http://www.icj-
cij.org/docket/files/116/8321.pdf.
1703
A. ORAKHELASHVILI, Peremptory Norms in International Law, Oxford, Oxford University Press, 2006, 53.
UN General Assembly Resolution 1803 (XVII) considers the right to be inalienable: the people can exercise it
and freely dispose of their natural resources, but not dispose of the right to decide over what to do with the
natural resources.

359
peoples that are governed. International constitutional law will thus contain peremptory norms
that limit the law-making capacity of States towards humankind, which is comprised by
individual human beings that may or may not be organized in various groups. Whereas the
peremptory norms enshrined in the Charter set out the fundamental rules on how the
international community is constituted politically, peremptory norms in human rights law and
humanitarian law limit the exercise of power by States, the main actors of the international
community.

395. More than the peremptory norms laid down in the Charter of the United Nations,
(some) human rights are deemed to be intrinsically part of jus cogens.1704 It could be argued
that all human rights are part of jus cogens,1705 but generally it is accepted that only a limited
core of human rights are peremptory.1706 Thus, the International Court of Justice only
considered the basic human rights (in French: “les droits fondamentaux de la personne
humaine”) as obligations erga omnes, which included the prohibition of slavery and racial
discrimination.1707 However, it may be doubted whether the distinction between fundamental
and other human rights is still relevant, if it ever was, so that now all human rights may have
achieved the status of jus cogens. Nevertheless, in its advisory opinion on the wall in
Palestine, the International Court of Justice found that Israel had breached certain human
rights obligations, the right to self-determination and various norms of international
humanitarian law, but it only considered the latter two as obligations erga omnes.1708
Similarly, in R (on the application of Al Jedda) v. Secretary of State of Defence the Court of
Appeals held that the Security Council could set aside human rights, but not those that are
part of jus cogens.1709 This confirms that not all human rights are obligations erga omnes or
peremptory norms.

396. The question which human rights belong to jus cogens is not easily answered. Since
humanity is diverse, it would be too bold to declare that the human rights of one part of the
world should be the benchmark for jus cogens. Nonetheless, it can also not be excluded that
the human rights of one tradition have become universalized and are deemed to have such an
importance that they can never be set aside. Hence, in the end the questions which human
rights belong to jus cogens can only be answered by looking into State practice to
demonstrate an acceptance of the international community of States as a whole, which would

1704
A. BIANCHI, “Human Rights and the Magic of Jus Cogens”, European Journal of International Law 2008,
491-492.
1705
K. PARKER and L.B. NEYLON, “Jus Cogens: Compelling the Law of Human Rights”, Hastings International
and Comparative Law Review 1988-1989, 441-443.
1706
S. GARDBAUM, “Human Rights as International Constitutional Rights”, European Journal of International
Law 2008, 756; F. DE LONDRAS, “The Religiosity of Jus Cogens: A Moral Case for Compliance?”, in J.
REHMAN and S.C. BREAU (eds.), Religion, Human Rights and International Law: A Critical Examination of
Islamic State Practices, Leiden, Nijhoff, 2007, 253; M. PAYANDEH, “Rechtscontrolle des UN-Sicherheitsrates
durch staatliche und überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
2006, 56.
1707
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34.
1708
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
ICJ Rep. 2004, § 155.
1709
Court of Appeal, R (on the application of Al-Jedda) v. Secretary of State for Defence, [2006] EWCA Civ
327, § 71.

360
clearly go beyond the scope this chapter. Nevertheless, a constitution should reflect the norms
that contain rights that unquestionably protect “the elementary considerations of mankind”. In
addition, a useful criterion is the criminalization of the violations of a particular human right:
if the leadership of a State would be criminally responsible for the breach of a human right it
would be highly unlikely that the treaty that organizes the breach would remain valid.1710
Previously, the criterion of non-derogability has not been retained since derogation under
human rights treaties is different from derogation of peremptory norms and not all non-
derogable rights are non-derogable because of their importance.1711 However, it could be
argued that human rights that due to their importance continue to apply in public emergencies
belong to jus cogens since it would be inconsistent that those rights apply in the most
dangerous situations while at the same time States would be allowed to conclude treaties
derogating from them.

397. A second area where jus cogens norms are deemed to be found is in international
humanitarian law, whose goal is to provide for minimum safeguards of humanity in armed
conflicts.1712 The four Geneva Conventions prohibit any State from derogating from the
Conventions and individuals cannot renounce their rights.1713 Although conventional non-
derogation is not a sufficient indication of the peremptory nature of the norms contained in
that convention, the impermissibility of derogation and renunciation of rights under the
Geneva Conventions together with the limited possibility of denunciation of the
Conventions1714 demonstrates that the drafters intended the Conventions to govern armed
conflict above all other arrangements. Although the Geneva Conventions do not stipulate the
consequences of agreements derogating from them, it has been argued that those derogatory
acts would be null and void.1715 In addition, violations of international humanitarian law may
lead to criminal prosecutions at the international level. All these elements demonstrate that the
international community regards at least the fundamental norms of international humanitarian
law as jus cogens. In this respect States have labelled certain norms of humanitarian law as jus
cogens.1716 In its resolution 2949 (XXVII) the United Nations General Assembly held that the

1710
Nonetheless, the fact that a certain human right is not criminalized does not mean it is not part of jus
cogens: supra, No. 159.
1711
Supra, No. 161.
1712
Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Trial Chamber, Judgment, 14 January 2000, §§ 517-
518; Constitutional Court of Colombia, Case No. C-225/95, Judgment, 18 May 1995, § 7, at
http://www.corteconstitucional.gov.co.
1713
Articles 6-7 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (1949); Articles 6-7 Geneva Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Articles 6-7 Geneva Convention
(III) Relative to the Treatment of Prisoners of War (1949); Articles 7-8 and Article 47 Geneva Convention (IV)
Relative to the Protection of Civilian Persons in Time of War (1949).
1714
Article 63 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field (1949); Article 62 Geneva Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 142 Geneva Convention
(III) Relative to the Treatment of Prisoners of War (1949); Article 158 Geneva Convention (IV) Relative to the
Protection of Civilian Persons in Time of War (1949).
1715
T. MERON, “The Humanization of Humanitarian Law”, American Journal of International Law 2000, 252;
J. QUIGLEY, “The Israel-PLO Agreements versus the Geneva Civilians Convention”, Palestine Yearbook of
International Law 1992-1994, 46.
1716
Legality of the Threat or Use of Nuclear Weapons, Written Statement of Mexico (19 June 1995), § 7 and §
78, at www.icj-cij.org/docket/files/95/8694.pdf; Id., Written Comments of Egypt (September 1995), § 44, at

361
changes Israel has introduced in the Occupied Palestinian Territory to be null and void as far
as they are inconsistent with the Geneva Conventions. Finally, the International Court of
Justice has held that the norms contained in Common Article 3 of the Geneva Conventions
precisely protect the “elementary considerations of mankind” in any armed conflict.1717
Furthermore, in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
the Court considered some norms of international humanitarian “intransgressible
principles”.1718 In its advisory opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, norms of humanitarian law were considered
obligations erga omnes.1719

398. In the following sections different norms that protect the “elementary considerations of
mankind” will be separately discussed and outlined. Human rights law and international
humanitarian law will be jointly discussed under one generally phrased norm or right, but
with special consideration how a norm or right is implemented in times of armed conflict.
This also avoids unnecessary repetition since the most fundamental human rights need also to
be observed in armed conflicts and the cardinal principles of international humanitarian law
need a fortiori to be respected in case of public emergencies that do not amount to armed
conflicts. Furthermore, specific norms may be brought under the umbrella of a more general
principle. This approach is in line with constitutional law where rights are broadly formulated
as principles that are later individuated.
The Turku Declaration will serve as an inspiration for making the elementary
considerations of mankind more concrete.1720 The Declaration contains the minimum
standards of humanity that have to be respected at all times and contains a mixture of human
rights, humanitarian law and international criminal law. Although the Declaration was
initially aimed at providing guidance to which norms would apply in cases of national

www.icj-cij.org/docket/files/95/8722.pdf; Id., Oral Statement of Egypt, CR 1995/23, 1 November 1995, 33 and

35, at www.icj-cij.org/docket/files/95/5927.pdf; Id., Oral Statement of New Zealand, CR 1995/28, 9 November
1995, 28, at www.icj-cij.org/docket/files/95/5937.pdf; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Written Statement of Egypt (28 January 2004), 32, at www.icj-
cij.org/docket/files/131/1547.pdf; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Oral Statement of Algeria, CR 2004/2, 23 February 2003, 40, at www.icj-
cij.org/docket/files/131/1507.pdf; Re United States v. Alfred Krupp et al., Trials of War Criminals before the
Nuremberg Military Tribunals under Control Council Law No. 10, Vol. IX, 1950, 1395; Voivodship Court of
Warsaw, Re Koch, 9 March 1959, 30 International Law Reports 1966, 503; Court of First Instance of Leivadia,
Prefecture of Voiotia v. the Federal Republic of Germany, Case No. 137/1997, 30 October 1997, Revue
Hellénique de Droit International 1997, 595; Areios Pagos, The Federal Republic of Germany v. Prefecture of
Voiotia, Case No. 11/2000, 4 May 2000, Nomiko Vima 2000, 212; Decision of the Hungarian Constitutional
Court No. 53/1993, (X.13) AB, 13 October 1993, Magyar Közlöny 1993, No. 147, V.1; Corte suprema di
Cassazione, Ferrini c. Repubblica federale di Germania, sezione unite n. 5044/04, depositata l’11.03.2004,
Diritto e Giustizia del 16.03.2004, § 4 jucto §§ 7.1-7.4, at
http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-sentenza_corte_di_cassazione-11_03_05_001.doc.
1717
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Rep. 1986, § 218.
1718
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 79.
1719
See also: Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Trial Chamber, Judgment, 14 January 2000,
§ 519.
1720
Declaration of Minimum Humanitarian Standards, Report of the Subcommission of Prevention of
Discrimination and Protection of Minorities on Its 46th Session, Commission on Human Rights, 51st Session,
Provisional Agenda Item 19, UN Doc. E/CN.4/1995/116 (1995), 4.

362
emergencies and has lost part of its relevance due to subsequent evolutions in international
law, it also expresses the core principles that should be respected regardless of the
circumstances.

§1. The prohibition of genocide

399. The prohibition of genocide is undoubtedly a peremptory norm and applies in peace and
wartime. After the Second World War, the prohibition was quickly confirmed by the United
Nations General Assembly as a crime under international law,1721 despite the fact that at that
point in time the precise contours of the crime were not clear. In 1948 the Convention on the
Prevention and the Punishment of the Crime of Genocide was adopted, which has however
not been universally ratified. Despite this, the International Court of Justice has held that the
principles underlying the Convention are binding upon States outside any conventional
undertaking and that the prohibition of genocide was universally recognized as well as the
duty to cooperate to end genocide.1722 It also added that the Convention was not based on the
individual interest of the States parties but protected a common interest in preventing and
punishing genocide. The Convention had a purely humanitarian and civilizing purpose.1723
The Convention on the Punishment and Prevention of the Crime of Genocide was one of the
first conventions whose purpose was not to protect the interests of States, but the common
interests of mankind; mankind had to be protected against genocidal acts committed against
national, racial, ethnic or religious groups. In the Application of the Convention of the
Prevention and Punishment of the Crime of Genocide it considered genocide to “shock the
conscience of mankind … and is contrary to moral law and the spirit and aims of the United
Nations.”1724 The Court also recognized that the prohibition of genocide was an obligation
erga omnes.1725 Finally, it recognized that the prohibition of genocide was evidently a
peremptory norm.1726 Not surprisingly, the prohibition of genocide featured as one of the
prime examples of a norm of jus cogens within the International Law Commission1727 and at

1721
UN General Assembly Resolution 96 (I).
1722
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, ICJ Rep. 1950, 23
1723
Ibid.
1724
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, ICJ Rep.
1993, § 49.
1725
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34; Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Preliminary Objections, Judgment, ICJ Rep.
1996, § 31 (attaching special consequences on the territorial application of the Convention).
1726
Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic Republic of Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 64.
1727
TABIBI, 683rd Meeting of the International Law Commission, Yearbook of the International Law
Commission 1963, Vol. I, § 44; AGO, l.c., § 76 and 79; BARTOŠ, l.c., § 86; ROSENNE, 685th Meeting of the
International Law Commission, l.c., § 9; WALDOCK, 693rd Meeting of the International Law Commission, l.c., §
32; BRIGGS, 828th Meeting of the International Law Commission, Yearbook of the International Law
Commission 1966, Vol. I, Part 1, § 40; Special Rapporteur WALDOCK, “Second Report on the Law of Treaties,
Yearbook of the International Law Commission 1966, Vol. II, 53, 54, 59, 199; “Report of the International Law
Commission on the Work of Its Eighteenth Session”, Yearbook of the International Law Commission 1966, Vol.
II, 248.

363
the Vienna Conference.1728 The prohibition of genocide has also been recognized as a
peremptory norm in international case law and by doctrine.1729

400. It is uncontroversial to consider the prohibition of genocide as a norm of jus cogens, a

norm that protects national, racial, ethnic or religious groups against extermination. It is

1728
Lebanon, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 43; Ghana, 53rd Meeting of the Committee of the Whole, l.c., § 16; Poland, 53rd
Meeting of the Committee of the Whole, l.c., § 35; Uruguay, 53rd Meeting of the Committee of the Whole, l.c.,
§ 48; Cyprus, 53rd Meeting of the Committee of the Whole, l.c., § 69; Czechoslovakia, 55th Meeting of the
Committee of the Whole, l.c., § 26; Tanzania, 56th Meeting of the Committee of the Whole, l.c., § 2;
Philippines, 56th Meeting of the Committee of the Whole, l.c., § 20; Canada, 56th Meeting of the Committee of
the Whole, l.c., § 22; Mexico, 75th Meeting of the Committee of the Whole, l.c., § 12; Poland, 19th Plenary
Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 71.
The prohibition of genocide as a peremptory norm is also confirmed in later state practice: Statement of
Denmark, UN Doc. A/C.6/55/SR.15, § 56; Statement of Bahrain, UN Doc. A/C.6/55/SR.19, § 86; Statement of
Slovenia, UN Doc. A/C.6/53/SR.21, § 2; Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Government of Kosovo, Written Statement of Switzerland
(15 April 2009), § 29, at http://www.icj-cij.org/docket/files/141/15614.pdf; Id., Oral Statement of Jordan, CR
2009/31, 9 December 2009, 35, at http://www.icj-cij.org/docket/files/141/15728.pdf; Armed Activities on the
Territory of the Congo (New Application: 2002) (Democratic Republic of Congo v. Rwanda), Requête
introductive d’instance à la Cour international de Justice de la Haye contre République du Rwanda, 27-28, at
http://www.icj-cij.org/docket/files/126/7070.pdf; Mothers of Srebrenica, LJN: BD6795, Rechtbank 's-
Gravenhage, 295247/HA ZA 07-2973, Vonnis in de incidenten, 10 July 2008, § 5.20, at zoeken.rechtspraak.nl.
1729
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, § 147;
Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Trial Chamber, Judgment, 14 January 2000, § 520;
Separate Opinion Judge ad hoc DUGARD, Armed Activities on the Territory of the Congo (Democratic Republic
of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, § 10; P.-M. DUPUY, “The
Constitutional Dimension of the Charter of the United Nations Revisited”, Max Planck Yearbook of United
Nations Law 1997, 10; A. FISCHER-LESCANO, “Die Emergenz der Globalverfassung”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 2003, 745; B. FASSBENDER, “The United Nations Charter as
Constitution of the International Community”, Columbia Journal of Transnational Law 1998, 590; M.
MILANOVIĆ, “State Responsibility for Genocide”, European Journal of International Law 2006, 557; P. GAETA,
“On What Conditions Can a State Be Held Responsible for Genocide”, European Journal of International Law
2007, 632 and 642; L.A. ALEXIDZE, “The Legal Nature of Jus Cogens in Contemporary International Law”,
Receuil des Cours 1981-III, 262; L. HANNIKAINEN, Peremptory Norms (Jus Cogens) in International Law:
Historical Development, Criteria, Present Status Helsinki, Lakimiesliiton Kustannus, 1988, 462-464; U.
SCHEUNER, “Conflict of Treaty Provisions with a Peremptory Norm of General International Law and Its
Consequences, Comments on Arts. 50, 61 and 67 of the ILC’s Draft Articles on the Law of Treaties”, Zeitschrift
für ausländisches öffentliches Recht und Völkerrecht 1967, 526; M. VIRALLY, “Réflexions sur le jus cogens”,
Annuaire Français de Droit International 1966, 11; B. VAN SCHAACK, “The Crime of Political Genocide:
Repairing the Genocide Convention’s Blind Spot”, Yale Law Journal 1996-1997, 2261; F. DE LONDRAS, “The
Religiosity of Jus Cogens: A Moral Case for Compliance?”, in J. REHMAN and S.C. BREAU (eds.), Religion,
Human Rights and International Law: A Critical Examination of Islamic State Practices, Leiden, Nijhoff, 2007,
253; M. PAYANDEH, “Rechtscontrolle des UN-Sicherheitsrates durch staatliche und überstaatliche Gerichte”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2006, 56; H.P. AUST and N. NASKE,
“Rechtsschutz gegen den UN-Sicherheitsrat durch europäische Gerichte? Die Rechtsprechung des EuG zur
Umsetzung ‘gezielter Sanktionen’ aus dem Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht
2006, 608; M. REIMANN, “A Human Right Exception to Sovereign Immunity Some Thoughts on Princz v.
Federal Republic of Germany”, Michigan Journal of International Law 1994-1995, 406; U. SCHEUNER,
“Conflict of Treaty Provisions with A Peremptory Norm of General International Law and Its Consequences,
Comments on Arts. 50, 61 and 67 of the ILC’s Draft Articles on the Law of Treaties”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1967, 526; A.C. BELSKY, M. MERVA and N. ROTH-
ARRIANZA, “Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations of Peremptory
Norms of International Law”, California Law Review 1989, 389.

364
indeed an elementary consideration of mankind that the protected groups may not be
threatened by extermination.1730 Since anyone may be member of a protected group, the
prohibition of genocide hence protects humanity that is organized in such groups against
annihilation. Besides the State practice confirming the peremptory nature of the prohibition of
genocide

401. There is debate whether the crime of genocide overlaps with the customary (and
peremptory) prohibition for States to commit genocide. Of course, if the military and political
elite of a State commit genocide, this will not only lead to individual criminal responsibility,
but also to State responsibility. More problematic is however the situation when a lone State
official would commit genocide without their being any genocidal plan of his State. Although
the official will have criminal responsibility and will be prosecuted under the normal rules of
State responsibility, his crime would be attributable and the State itself would have committed
genocide. This is unsatisfactory and customary prohibition of genocide would require a plan
of the State to commit genocide.1731 However, the problem is caused by the case law of the
International Criminal Tribunal for the Former Yugoslavia and the International Criminal
Tribunal for Rwanda that does not require an element of policy in the crime of genocide,1732
which is highly disputed.1733 If genocide always requires a policy or plan then the difference
between the customary prohibition of genocide and the crime of genocide is reduced. A
related issue is whether there is a need to prove the specific intent of the crime of genocide in
State responsibility. Proving the genocidal intent of the leadership of a State will be sufficient
to hold that State responsible for genocide,1734 but it is not a necessary requirement for a State
to be held responsible for genocide: the proof of the plan or genocidal policy would suffice,
regardless whether each State official had the genocidal intent.

402. In any event, the customary prohibition of genocide has attracted the main elements of
the crime of genocide as laid down in Article II Convention on the Prevention and
Punishment of the Crime of Genocide.1735 Therefore, it is a very specific norm since it can
only be committed against the four protected groups enumerated in Article II of the

1730
Genocide does not only protect individuals as members of a national, racial, ethnic or religious group, but
especially the groups itself: UN General Assembly Resolution 96 (I); Prosecutor v. Jelesić, Case No. IT-95-10-
T, Trial Chamber, Judgment, 14 December 1999, § 79; M. MILANOVIĆ, “State Responsibility for Genocide”,
European Journal of International Law 2006, 557.
1731
W.A. SCHABAS, Genocide in International Law, The Crime of Crimes, Cambridge, Cambridge University
Press, 2009, 518; P. GAETA, “On What Conditions Can a State be Held Responsible for Genocide?”, European
Journal of International Law 2007, 643-644.
1732
Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment, 6 December 1999, § 400;
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Chamber, Judgment, 21 May 1999, §§
534-535; Prosecutor v. Jelesić, Case No. IT-95-10-A, Appeals Chamber, Judgment, 5 July 2001, § 48;
Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Chamber, Judgment, 17 January 2005, § 656.
1733
W.A. SCHABAS, Genocide in International Law, The Crime of Crimes, Cambridge, Cambridge University
Press, 2009, 246 et seq.; the element of a plan or policy is retained in the crime of genocide under the Rome
Statute: Elements of Crime, ICC-ASP/1/3 (Part II-B), 113, at www.icc-cpi.int.
1734
M. MILANOVIĆ, “State Responsibility for Genocide”, European Journal of International Law 2006, 567-
568.
1735
P. GAETA, “On What Conditions Can a State be Held Responsible for Genocide?”, European Journal of
International Law 2007, 642.

365
Convention1736 and involves the physical or biological destruction of those groups.1737
However, from a constitutional point of view the definition is not satisfactory; a constitutional
norm that only protects certain groups against extermination is at odds with the idea that all
groups should be protected against extermination. If mankind is diverse, there is no reason to
exclude certain divisions from the protection of physical extermination. Therefore, it has
been argued that the definition should expand to include other groups.1738 In Prosecutor v.
Akayesu, the International Criminal Tribunal for Rwanda held that genocide applies to all
“permanent and stable groups”.1739 Nonetheless, this aspect of the decision has been rejected
in later case law.1740 Furthermore, the definition of genocide has shown to be resilient to
change and has been taken over by the Statutes of the ad hoc tribunals, hybrid courts and the
Statute of the International Criminal Court.1741 This demonstrates the intention of the
international community to maintain the specific definition of genocide and hence the specific
meaning of the peremptory norm of genocide as a constitutional norm. The specific scope of
the constitutional protection against genocide can be explained by the decentralized nature of
the international community and its authorities who each have to agree on the peremptory
nature of a norm which leads to compromises; gradually, the norm may be expanded due to
the evolutionary constitutional dynamic that prevails at the international level. Nevertheless,

1736
The four groups are not necessarily distinct and overlaps may occur. It was not the intention of the drafters
to have clearly cut groups; rather, the four criteria of nationality, race, ethnicity and religion delimit together the
groups that are covered: W.A. SCHABAS, Genocide in International Law, Cambridge, Cambridge University
Press, 2009, 129-130. The question whether there exists a protected group depends on the subjective intent of
the perpetrators, provided there are some objective criteria that such a protected group indeed can exist.
Whether victims belong to the protected groups does thus not only depend on objective criteria, but on the
subjective intent of the perpetrators provided that the victims can in one way or another linked to the protected
groups: Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Rep. 2007, § 194; Prosecutor v. Kayishema and
Ruzindana, Case No. ICTR-95-1-T, Trial Chamber, Judgment, 21 May 1999, §§ 57-58 and § 98; Prosecutor v.
Semanza, Case No. ICTR-97-20-T, Trial Chamber, Judgment, 15 May 2003, § 317; Prosecutor v. Krstić, Case
No. IT-98-33-T, Trial Chamber, Judgment, 2 August 2001, § 557; W.A. SCHABAS, Genocide in International
Law, The Crime of Crimes, Cambridge, Cambridge University Press, 2009, 127-128; W.A. SCHABAS, “Groups
Protected by the Genocide Convention: Conflicting Interpretations from the International Criminal Tribunal for
Rwanda”, ILSA Journal of International and Comparative Law 1999-2000, 384; D.L. NERSESSIAN, “The
Razor’s Edge: Defining and Protecting Human Groups under the Genocide Convention”, Cornell International
Law Journal 2003, 312-313; C. KREß, “The International Court of Justice and the Crime of Genocide”,
European Journal of International Law 2007, 623-624.
1737
Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Trial Chamber, Judgment, 22 January 2004, § 627;
Prosecutor v. Semenza, Case No. ICTR-97-20-T, Trial Chamber, Judgment, 15 May 2003, § 315; Prosecutor v.
Jelesić, Case No. IT-95-10-T, Trial Chamber, Judgment, 14 December 1999, §§ 78-83; Prosecutor v. Krstić,
Case No. IT-98-33-T, Trial Chamber, Judgment, 2 August 2001, § 580.
1738
B. VAN SCHAACK, “The Crime of Political Genocide: Repairing the Genocide Convention’s Blind Spot”,
Yale Law Journal 1996-1997, 2259 et seq.; L. LYMAN BRUUN, “Beyond the 1948 Convention – Emerging
Principles of Genocide in Customary International Law”, Maryland Journal of International Law and Trade
1993, 210-218.
1739
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgment, 2 September 1998, § 702.
1740
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Chamber, Judgment, 21 May 1999,
§ 98; Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Trial Chamber, Judgment, 7 June 2001, § 65;
Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber, Judgment, 27 January 2000, §§ 161-163.
1741
Article 4 Statute of the International Criminal Tribunal for the Former Yugoslavia (1993); Article 2 Statute
of the International Criminal Tribunal for Rwanda (1994); Article 6 Rome Statute of the International Criminal
Court (1998); Article 4 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as Amended (2004).

366
with the advent of crimes against humanity and in particular the prohibition of murder,
extermination and persecution against any part of the population1742 the gap in protection of
other groups against similar acts as genocide has been removed.1743 Although there is not as
much support for the peremptory status of crimes against humanity, they already featured in
the Statute of the Nuremberg Tribunal, have a customary status, and have been, with some
alterations, continuously included in the Statutes of different criminal tribunals.1744 In any
event, from a constitutional perspective the prohibition of murdering and exterminating any
part of the civilian population deserves peremptory status because it protects any group of
mankind against physical destruction.

§2. The right to life

403. The right to life is one of the fundamental rights of every human being.1745 Without this
right any other right would not be secured since it would allow States to kill individuals at
will, nullifying any other right those individuals would have and the possibility to develop the
potential of those individuals. It therefore scores highly on the constitutional dimension.
Surprisingly, the right is not often mentioned in State practice,1746 which tends to focus on the
prohibition of genocide as a peremptory norm, or international case law.1747 One of the causes
might be that the right is not absolute since it allows for the use of force in certain
circumstances and the death penalty for the most serious crimes,1748 although the death

1742
Under customary international law crimes against humanity can also be committed against members of the
armed forces, not only against the civilian population: A. CASSESE, International Criminal Law, Oxford,
Oxford University Press, 2008, 125.
1743
W.A. SCHABAS, Genocide in International Law, The Crime of Crimes, Cambridge, Cambridge University
Press, 2009, 119; M. MILANOVIĆ, “State Responsibility for Genocide”, European Journal of International Law
2006, 557; P. QUAYLE, “The Legislative Limitations of the Genocide Convention”, International Criminal Law
Review 2005, 371.
1744
Article 6 (c) Charter of the Nuremberg International Military Tribunal (1945); Article 5 (c) Charter of the
International Tribunal for the Far East (1945); Article 5 Statute of the International Criminal Tribunal for the
Former Yugoslavia (1993); Article 3 Statute of the International Criminal Tribunal for Rwanda (1994); Article
7 Rome Statute of the International Criminal Court (1998); Article 2 Statute of the Special Court for Sierra
Leone (2002); Article 5 Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for
the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as Amended (2004).
1745
Article 6 International Covenant on Civil and Political Rights (1966); Article 4 African Charter on Human
and Peoples’ Rights (1981); Article 4 American Convention on Human Rights (1969); Article 5 Arab Charter
on Human Rights (2004); Article 2 European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950); Article 3 Universal Declaration of Human Rights, UN General Assembly Resolution 217A
(III).
1746
But see: Legality of the Use of Force (Yugoslavia v. Belgium), Request for the Indication of Provisional
Measures, Oral Statement of Belgium, CR 99/15, 10 May 1999, 16, at http://www.icj-
cij.org/docket/files/105/4513.pdf.
1747
But see: Inter-American Commission on Human Rights, Survivors of the Tugboat ‘13 de Marzo’ v. Cuba,
Case 11.436, Report No. 47/96, OEA/Ser.L/V/II.95 Doc. 7 (1997), § 7
1748
Article 6 (2) International Covenant on Civil and Political Rights (1966); Article 4 (2) and (4) American
Convention on Human Rights (1969); Article 6 Arab Charter on Human Rights (2004). During armed conflicts
the death penalty may only be imposed for the most serious offences against an Occupying Power: Article 68
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).

367
penalty may not be performed on minors, mothers of young children and pregnant women.1749
Hence, the right covers only the arbitrarily deprivation of the right to life, or the unlawful and
unjust deprivation of someone’s life.1750 Nevertheless, the unlawful killing of human beings
on a large scale is considered a crime against humanity and in armed conflicts a war crime.1751
Furthermore, the right to life also includes positive obligations. A State is under a duty to
effectively investigate killings resulting from the use of force of State agents1752 and to

1749
Article 6 (5) International Covenant on Civil and Political Rights (1966); Article 37 (a) Convention on the
Rights of the Child (1989); Article 4 (5) American Convention on Human Rights (1969); Article 5 (3) and
Article 30 (1)(e) African Charter on the Right and Welfare of the Child (1999); Article 7 Arab Charter of
Human Rights (2004). In armed conflict it is prohibited to apply the death penalty to minors, pregnant women
and women having dependent infants: Article 68, § 4 Geneva Convention (IV) Relative to the Protection of
Civilian Persons in Time of War (1949); Article 76 (3) and Article 77 (5) Protocol (I) Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(1977); Article 6 (4) Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (1977). The prohibition on the death penalty for
minors has been held to be part of jus cogens: Inter-American Commission on Human Rights, Pinkerton and
Roach v. United States of America, Resolution 3/87, Case No. 9641, OEA/Ser.L/V/II.71 doc. 9 rev. 1 (1987), §§
54-55; Id., Michael Domingues v. United States of America, Case 12.285, Report No. 62/02, Doc.5 Rev.1
(2002), §§ 84-85.
1750
The European Convention does not contain reference to arbitrarily deprivation of life, but this is implied
from the exceptions listed in the second paragraph: R. CRAWSHAW, “International Standards on the Right to
Life and the Use of Force by Police”, International Journal of Human Rights 1999, 69-70. If force is used
disproportionately, it is a violation of the right to life: Human Rights Committee, de Guerrero v. Columbia,
Communication No. 11/45, UN Doc. Supp. No. 40 (A/37/40), § 13.3; European Commission on Human Rights,
Stewart v. the United Kingdom, Application No. 10044/82, Decision on the Admissibility of the Application, 10
July 1984, Decisions and Reports, Vol. 39, § 15; McCann and Others v. the United Kingdom, Application No.
18984/91, Merits and Just Satisfaction, Judgment, 27 September 1995, Series A, No. 324, § 147.
1751
Article 6 (b) and (c) Charter of the International Military Tribunal of Nuremberg (1945); Article 5 (b) and
(c) Charter of the International Military Tribunal for the Far East (1945); Article 50 Geneva Convention (I) for
the Amelioration of the Condition of the Wounded and Sick Members in Armed Forces in the Field (1949);
Article 51 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (1949); Article 130 Geneva Convention (III) Relative to the Treatment of
Prisoners of War (1949); Article 147 Geneva Convention (IV) Relative to the Protection of Civilian Persons in
Time of War (1949); Article 85 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (1977); Article 2 (a) and Article 5 (a) and
(b) Statute of the International Criminal Tribunal for the Former Yugoslavia (1993); Article 3 (a) and (b) and
Article 4 (a) Statute of the International Criminal Tribunal for Rwanda (1994); Article 7 (1)(a) and (b), Article 8
(2)(a)(i), Article 8 (2)(b)(i), Article 8 (2)(c)(i) Rome Statute of the International Criminal Court (1998); Article
2 (a) and 3 (a) Statute of the Special Court for Sierra Leone (2002); Article 5 and Article 6 Law on the
Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed
During the Period of Democratic Kampuchea, as Amended (2004).
1752
Inter-American Court on Human Rights, Juan Humberto Sánchez v. Honduras, Preliminary Objection,
Merits, Reparations and Costs, Judgment, 7 June 2003, Series C, No. 99, § 112; European Court of Human
Rights, McCann and Others v. the United Kingdom, Application No. 18984/91, Merits and Just Satisfaction,
Judgment, 27 September 1995, Series A, No. 324, §§ 148-149; Id., Ergi v. Turkey, Application No. 23818/94,
Merits and Just Satisfaction, Judgment, 28 July 1998, Reports of Judgments and Decisions 1998-IV, No. 81, §
79; Id., Khashiyev and Akayeva v. the Russian Federation, Application Nos. 7942/00 and 57945/00, Merits and
Just Satisfaction, Judgment, 24 February 2005, § 153, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; Al-Skeini and Others v. the United Kingdom,
Application No. 55721/07, Merits and Just Satisfaction, Judgment, 7 July 2011, § 163, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.

368
prevent individuals from killing other individuals.1753 Moreover, the right to life would also
be violated if the conduct involved the wilful deprivation of necessary food, drinking water
and medicine.1754 Furthermore, it would be incompatible with the right to life to withhold
assistance to the wounded and sick or hinder the efforts of medical personnel.

404. Having a constitutional right to life at the international level that cannot be set aside
implies that the right to life is also applicable in armed conflicts. At first sight this might seem
absurd since in armed conflicts it is lawful to kill combatants. However, the right to life is
only violated in case of arbitrarily deprivation of life. Therefore, the killing in line with
international humanitarian law would not constitute a violation of the right of life;1755
humanitarian law is lex specialis1756 in that killings during armed conflicts will only constitute
a violation of the right to life if they transgress the boundaries of international humanitarian
law. Nevertheless, this does not entail that the right to life enshrined in human rights law
becomes completely inapplicable: in areas where there are no hostilities, the right to life will
be protected through human rights law.1757

1753
Inter-American Court on Human Rights, Juan Humberto Sánchez v. Honduras, Preliminary Objection,
Merits, Reparations and Costs, Judgment, 7 June 2003, Series C, No. 99, § 110; Id., Sawhoyamaxa Indigenous
Community v. Paraguay, Merits, Reparation and Costs, Judgment, 29 March 2006, Series C, No. 146, § 153;
European Court of Human Rights, Osman v. United Kingdom, Application No. 23452, Merits and Just
Satisfaction, Judgment, 28 October 1998, Reports of Judgments and Decisions 1998-VIII, No. 95, § 115.
1754
The recent case law of the Inter-American Court of Human Rights goes further in that it requires the
government to ensure a dignified live of its citizens, which requires the government to provide for food,
sanitation, drinking water and medical care: Juvenile Reeducation Institute v. Paraguay, Preliminary
Objections, Merits, Reparations and Costs, Judgment, 2 September 2004, Series C, No. 112, § 159; Yakye Axa
Indigenous Community v. Paraguay, Merits, Reparation and Costs, Judgment, 17 June 2005, Series C, No. 125,
§ 162; Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparation and Costs, Judgment, 29 March
2006, Series C, No. 146, § 153.
1755
The European Convention on the Protection of Human Rights and Fundamental freedoms is explicit in this
regard in Article 2 (2)(c) and Article 15: the right to life is not violated in case of lawful actions to quell a riot or
insurrection and in case of lawful acts of war, which refers to international armed conflicts: J. CHEVALIER-
WATTS, “Has Human Rights Law Become Lex Specialis for the European Court on Human Rights in Right to
Life Cases arising From Internal Armed Conflicts?”, International Journal of Human Rights 2010, 589.
1756
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 25; Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep.
2004, § 106; Inter-American Commission of Human Rights, Juan Carlos Abella v. Argentina, Case 11.137,
Report No. 55/97, OEA Ser.L/V/II.95 Doc. 7 rev. (1997), § 161.
1757
An overlap between the two bodies of law is feasible: Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, § 106. The European Court on Human
Rights has typically refrained from inquiring into international humanitarian law in its case law. See: Loizidou
v. Turkey, Application No. 15318/89, Merits and Just Satisfaction, Judgment, 18 December 1996, Reports of
Judgments and Decisions 1996-VI, No. 26; Ergi v. Turkey, Application No. 23818/94, Merits and Just
Satisfaction, Judgment, 28 July 1998, Reports of Judgments and Decisions 1998-IV, No. 81; Khashiyev and
Akayeva v. the Russian Federation, Application Nos. 7942/00 and 57945/00, Merits and Just Satisfaction,
Judgment, 24 February 2005, at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; Isayeva, Yusupova
and Bazayeva v. the Russian Federation, Application Nos. 57947/00, 57948/00 and 7949/00, Merits and Just
Satisfaction, Judgment, 24 February 2005, at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en;
Isayeva v. the Russia Federation, Application No. 57950/00, Merits and Just Satisfaction, Judgment, 24
February 2005, at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; Taysumov v. the Russian
Federation, Application No. 21810/03, Merits and Just Satisfaction, Judgment, 14 May 2009, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en; Al-Skeini and Others v. the United Kingdom,
Application No. 55721/07, Merits and Just Satisfaction, Judgment, 7 July 2011, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (although it regarded The United Kingdom as the

369
405. Consequently, a significant amount of international humanitarian law is covered by the
right to life. First, in international and non-international armed conflicts only combatants can
be lawfully participating in hostilities and can thus be targeted.1758 Thus, the distinction
between combatants and civilians is crucial. In international armed conflicts combatants are
defined as the members of armed forces of the parties to the conflict that are allowed to take
part in the hostilities. Armed forces are in turn circumscribed as groups and units who are
under a responsible command and subject to an internal disciplinary system which, inter alia
enforces compliance with the rules of international law applicable in armed conflict.1759 The
only true exceptions are medical and religious personnel of the armed forces: although they
belong to the armed forces they are not allowed to participate in the hostilities and are thus not
combatants that can be lawfully attacked.1760 Civilians are all those that are not members of
the armed forces. However, civilians that have formed a levée en masse are considered lawful
combatants, if they carry arms openly and respect the laws and customs of war.1761
Humanitarian law applicable in non-international armed conflicts does not define civilian
population or civilians, although there is no reason to adopt a different definition than in
international armed conflicts. Hence, civilians would be all persons that are not combatants.
Nonetheless, which persons are combatants is not clear: whereas governmental armed forces
are combatants, it is debated whether insurgent groups equally have this status or should be
regarded as civilians which take direct part in the hostilities and therefore have forfeited their
protection attached to their civilian status. The first interpretation is however the correct one.
The material scope of the Protocol (II) deals with a non-international armed conflict between
(governmental) armed forces and dissident armed forces, thus indicating that besides
governmental armed forces and the civilian population a third group is involved in a non-
international armed conflict.1762 Furthermore, the Rome Statute of the International Criminal

Occupying Power); but see: Al-Jedda v. the United Kingdom, Application No. 27021/08, Merits and Just
Satisfaction, Judgment, 7 July 2011, § 107, at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en (no
inconsistency between international humanitarian law and the European Convention).
1758
Saint Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400
Grammes Weight (1868); Article 48, Article 51 (2) and Article 52 (2) Protocol (I) Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(1977); Common Article 3 Geneva Conventions (1949); Article 13 (2) Protocol (II) Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts
(1977); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 78; Prosecutor
v. Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal,
2 October 1995, § 127; Prosecutor v. Galić, Case No. IT-98-29-T, Trial Chamber, Judgment, 5 December 2004,
§ 57.
1759
Article 43 (1) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); J.-M. HENCKAERTS and L. DOSWALD-BECK,
Customary International Humanitarian Law, Volume I: Rules, Cambridge, Cambridge University Press, 2005,
14.
1760
Article 43 (2) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977).
1761
Article 2 Regulations respecting the Laws and Customs of War on Land, annex to the Hague Convention
(IV) respecting the Laws and Customs of War on Land (1907); Article 4 (A)(6) Geneva Convention (III)
Relative to the Treatment of Prisoners of War (1949).
1762
M. BOTHE, K.J. PARSCH, W.A. SOLF, (eds.), New Rules for Victims of Armed Conflicts, The Hague, Nijhoff,
1982, 672.

370
Court criminalizes the treacherously killing or wounding of an adversary combatant in a non-
international armed conflict.1763

406. Civilians may not be attacked, unless they take a direct part in hostilities.1764 It is not
exactly clear when a civilian is directly taking part in hostilities, but it in any event comprises
acts of war which by their nature or purpose are likely to cause actual harm to the personnel
and equipment of the enemy armed forces1765 and the duration of the direct participation in the
hostilities includes the approaching of and redrawing from the target.1766 In case of doubt, the
person should be considered a civilian. The prohibition of attacking the civilian population
implies that acts or threats of violence whose purpose is to terrorize the civilian population are
not permitted.1767 In this respect, the intention of the threat or attack is relevant and not the
consequences: powerful attacks on military targets that cause fear and terror amongst the
civilian population are not illegal.1768 Furthermore, civilians may not only be directly
attacked, but also not subjected to indiscriminate attacks. Such attacks are not directed at a
specific military objective, employ a method or means of combat which cannot be directed at
a specific military objective, or employ a method or means of combat the effects of which
cannot be limited to a military objective.1769 Consequently, in each such case, those attacks
are of a nature to strike military objectives and civilians or civilian objects without distinction.
Hence, the right to life may be infringed if during an international armed conflict military
objectives and civilian objects are indiscriminately targeted. Military objectives are all objects
which by their nature, location, purpose or use make an effective contribution to military
action and whose total or partial destruction, capture or neutralization, in the circumstances
ruling at the time, offers a definite military advantage. All other objects are civilian and in
case of doubt whether an object which is normally dedicated to civilian purposes is being used
to make an effective contribution to military action, it will be presumed not to be so used.1770

1763
Article 8 (2)(e)(ix) Rome Statute of the International Criminal Court (1998).
1764
Article 51 (1) and (3) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (1977); Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, ICJ Rep. 1996, § 78; Armed Activities on the Territory of the Congo (Democratic
Republic of Congo v. Uganda), Judgment, ICJ Rep. 2005, § 208.
1765
F. KALSHOVEN and L. ZEGVELD, Constraints on the Waging of War: An Introduction to International
Humanitarian Law, Geneva, ICRC, 2001, 99.
1766
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Commentaire des Protocoles additionnels du 8 juin
1977 aux Conventions de Genève du 12 août 1949, Geneva, Nijhoff, 1986, No. 1944.
1767
Article 51 (2) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); Article 13 (2) Protocol (II) Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed
Conflicts (1977).
1768
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Commentaire des Protocoles additionnels du 8 juin
1977 aux Conventions de Genève du 12 août 1949, Geneva, Nijhoff, 1986, No. 1940.
1769
As such the rule is not expressly laid down in humanitarian law applicable to non-international armed
conflicts, but it is explicitly contained in the prohibition to attack the civilian population; it is part of customary
international law: J.-M. HENCKAERTS and L. DOSWALD-BECK, Customary International Humanitarian Law,
Volume I: Rules, Cambridge, Cambridge University Press, 2005, 38-39.
1770
Article 52 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); Prosecutor v. Kordić and Čerkez, Case No. IT-
95-14/2-A, Appeals Chamber, Judgment, 17 December 2004, § 53.

371
407. Besides civilians, armed forces may not attack persons hors de combat, i.e. the
wounded, sick and shipwrecked and combatants that have surrendered. Wounded and sick are
those persons, whether military or civilian, who, because of trauma, disease or other physical
or mental disorder or disability, are in a need of medical assistance or care. This does also
include maternity cases, new-born children and other persons who may be in need of
immediate medical assistance. Shipwrecked are persons, whether military or civilian, who are
in peril at sea or in other waters as the result of misfortune affecting them or the vessel or
aircraft carrying them.1771 There is a general duty to respect and protect wounded, sick and
shipwrecked persons in all circumstances.1772 “Respect” for the wounded and sick entails that
they cannot be the subject of an attack by combatants whereas the word “protect” implies a
general obligation to protect the wounded and sick by coming to their aid. As a result, the
introduction of these words makes it unlawful for an enemy to attack, kill, ill-treat or in any
way harm a fallen and unarmed soldier or wounded or sick civilian, while it at the same time
imposed upon the enemy an obligation to come to their aid and give them such care as their
condition requires.1773 Furthermore, the wounded, sick and shipwrecked must not be let to
their faith, but as far as possible all measures must be taken to search for, collect and evacuate
them, to protect them against pillage and ill-treatment and to offer the required medical
assistance.1774 The foregoing also implies that medical and religious personnel and medical
units must be protected and respected1775 and cannot be subjected to reprisals.1776 Medical

1771
Article 8 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977).
1772
Article 12 § 1 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick
Members in Armed Forces in the Field (1949); Article 12, § 1 Geneva Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 16 Geneva
Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949); Article 10 (1) Protocol
(I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (1977); Article 7 (1) Protocol (II) Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (1977). Common
Article 3 does not explicitly State that the wounded, sick and shipwrecked have to be respected and protected,
but this is implicitly contained in the duty to collect and take care for them: O. UHLER and H. COURSIER,
Geneva Convention relative to the Protection of Civilian Persons in Time of War, Commentary, Geneva, ICRC,
1958, 40-41.
1773
J.S. PICTET, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Members in
Armed Forces in the Field, Commentary, Geneva, ICRC, 1952, 134-135; J.S. PICTET, Geneva Convention for
the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea,
Commentary, Geneva, ICRC, 1959, 89-90.
1774
Article 15 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949); Article 18, § 1 Geneva Convention (II) for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 19 Geneva
Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 16 Geneva Convention (IV)
Relative to the Protection of Civilian Persons in Time of War (1949); Common Article 3 Geneva Conventions
(1949); Article 8 Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (1977).
1775
Article 19, § 1, Articles 24-25 and Article 35 Geneva Convention (I) for the Amelioration of the Condition
of the Wounded and Sick Members in Armed Forces in the Field (1949); Article 22, Articles 27-28 and Articles
36-37 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea (1949); Article 18, § 1 and Articles 20-21 Geneva Convention (IV) Relative
to the Protection of Civilian Persons in Time of War (1949); Article 12, Article 15 (1) and (5) and Article 21
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (1977); Article 9 and Article 11 (1) Protocol (II) Additional to the Geneva

372
personnel are persons permanently or temporarily assigned by a party to the conflict
exclusively to the medical duties or to the administration of medical units or to the operation
or administration of medical transports.1777 Medical units are defined by Article 8 (e) Protocol
(I) as establishments and other units, whether military or civilian, organized for medical
purposes or for the prevention of disease. Furthermore, they should be exclusively assigned to
these purposes, to be determined at the moment of their actual use.1778 Medical and religious
personnel and medical units will lose their protection when they commit acts harmful to the
enemy.1779 The notion of “harmful” in this respect is quite wide: it includes all acts the
purpose or effect of which by facilitating or impeding military operations is to harm the
adversary;1780 it therefore refers not only to direct harm inflicted on the enemy, for example,
by firing at him, but also to any attempts at deliberately hindering his military operations in
any way whatsoever.1781 If medical units commit acts harmful to the enemy they should be
warned before being attacked and if attacked and the attack should be proportionate in order
to as far as possible spare the life of wounded and sick.1782
Finally, in international armed conflicts combatants that have been captured and are
entitled to prisoner of war status are at all times entitled to respect for their person,1783 which
implies that a prisoner of war cannot be physically assaulted, killed, or in any way
endangered, for instance by the living conditions in a place of internment, by his guards or his
fellow prisoners of war.1784 The concept of prisoner of war does not exist in non-international

Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts
(1977).
1776
Article 46 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949); Article 47 Geneva Convention (II) for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 20 Protocol (I)
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (1977).
1777
Article 8 (c) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977).
1778
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN
(eds.), Commentaire des Protocoles additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949,
Geneva, Nijhoff, 1986, Nos. 371-372; J.K. KLEFFNER, “Protection of the Wounded, Sick and Shipwrecked”, in
D. FLECK (ed.) Handbook of International Humanitarian Law, Oxford, Oxford University Press, 2008, 340.
1779
Article 21 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949); Article 34 Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 19 Geneva Convention (IV)
Relative to the Protection of Civilian Persons in Time of War (1949); Article 13 Protocol (I) Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (1977); Article 11 (2) Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts (1977).
1780
J.S. PICTET, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick Members in
Armed Forces in the Field, Commentary, Geneva, ICRC, 1952, 200-201.
1781
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN
(eds.), Commentaire des Protocoles additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949,
Geneva, Nijhoff, 1986, No. 551.
1782
Ibid., No. 556; J.K. KLEFFNER, “Protection of the Wounded, Sick and Shipwrecked”, in D. FLECK (ed.)
Handbook of International Humanitarian Law, Oxford, Oxford University Press, 2008, 344.
1783
Article 14 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).
1784
J. DE PREUX, Geneva Convention relative to the Treatment of Prisoners of War, Commentary, Geneva,
ICRC, 1960, 143.

373
armed conflicts, but captured combatants must be treated humanely and may not be
attacked.1785

408. The right to life during international armed conflicts will also be infringed if certain
means and methods of warfare are employed. Generally, the use of prohibited methods and
weapons would result in an infringement of the right to life since it would involve the use of
force that is deemed not lawful or not necessary and proportionate. A general principle in the
use of methods and means is that methods and means that cause unnecessary suffering are
prohibited in international and non-international armed conflicts,1786 which was deemed to
constitute an intransgressible principle of international humanitarian law by the International
Court of Justice.1787 The principle does not need concretization in separate treaties or
customary norms to be operative.1788 Means cause superfluous injury or unnecessary suffering
if they cause suffering that has no military purpose or that is clearly disproportionate with the
military gains achieved violates the prohibition of causing unnecessary suffering.1789 In
general all weapons that have the characteristic that normal variants of such weapons are
sufficient to render a combatant hors de combat are covered by this prohibition, such as
lances or spears with barbed head, serrated edged bayonets, expanding bullets, explosive
bullets, poison and poisoned weapons, weapons that injure by fragments not detectable by X-
rays. The principle also includes weapons that render death inevitable. The prohibition of
weapons that render death inevitable is laid down in the 1868 Saint Petersburg Declaration
and repeated in the 1874 Brussels Declaration. Although both documents are not binding as
such, the rule has become part of customary international law and has been applied in case

1785
Common Article 3 Geneva Conventions (1949); Article 4 (1) and (2)(a) Protocol (II) Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed
Conflicts (1977).
1786
Article 35 (2) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977) also introduces the prohibition of the use of
methods that cause unnecessary suffering. It remains however unclear which type of methods of warfare fall
within this category.
1787
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 78. The Court
generally held that such means and methods are prohibited, without taking into consideration the nature of the
armed conflict.
1788
The 1868 Saint Petersburg Declaration does not mention the requirement of specific norms prohibiting
certain means; Article 23 (1) (e) Regulations respecting the Laws and Customs of War on Land, annex to the
Hague Convention (IV) respecting the Laws and Customs of War on Land (1907) provides for the prohibition
of such means besides the means prohibited by other specific conventions; Article 35 (2) merely restates the
general principle. Nonetheless, France and the Russian Federation have argued that the prohibition can only be
effective if States have concluded an agreement that a certain means is causing unnecessary suffering: Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, Oral Statement of France, CR 1995/24, 2
November 1995, 26, at www.icj-cij.org/docket/files/95/5929.pdf; Id., Oral Statement of the Russian Federation,
CR 1995/29, 10 November 1995, 45-46, at www.icj-cij.org/docket/files/95/5939.pdf. See also: A. CASSESE,
“Weapons causing Unnecessary Suffering: Are They Prohibited?”, Rivista di Diritto Internazionale 1975, 34;
H. MEYROWITZ, “Problèmes juridiques relatifs à l’arme à neutrons”, Annuaire Français de Droit International
1981, 108.
1789
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, § 78; J.-M.
HENCKAERTS and L. DOSWALD-BECK, Customary International Humanitarian Law, Volume I: Rules,
Cambridge, Cambridge University Press, 2005, 240-24; L.C. GREEN, The Contemporary Law of Armed
Conflict, Manchester, Manchester University Press, 2000, 126.

374
law.1790 The exact scope of the wording of the rule however gives rise to problems. Literally,
the text prohibits the use of weapons which render death inevitable of persons hors de
combat. A literal interpretation leads to the absurd result that weapons which always kill
combatants do not fall under this prohibition, since the rule applies only when a combatant is
not instantly killed but always succumbs afterwards to his wounds caused by a particular
weapon.1791 Therefore, it has to be interpreted as prohibiting weapons which necessarily
results in the death of all whom it affects. Consequently, a weapon is lawful if it can either kill
or wound depending on the circumstances, but unlawful, if it always kills everyone who in
some way is exposed to it.1792 Previously, it has already been established that the use of
weapons that by their nature cannot discriminate between military objectives and civilian
objects would amount to an indiscriminate attack against the civilian population and therefore
cannot be employed. Typically those weapons cannot be targeted at a military objective or
their effects would be uncontrollable or lead to excessive incidental loss of civilian live.

409. Concerning methods, denying quarter or threatening not to give quarter is prohibited
and would constitute an arbitrarily deprivation of life since it implies the killing of all who do
not, are not capable or intend anymore to participate in hostilities.1793 In addition, the
treacherously killing (and wounding or capturing) of an adversary by inducing the belief that
the adversary is entitled to or is obliged to give protection under the international
humanitarian law is prohibited.1794 Other methods that are prohibited are the starvation of the
civilian population and the attacking, destroying, removing or rendering useless objects that
are indispensable to the civilian population.1795 States would also not be permitted to prohibit
or impede humanitarian relief for civilians in need, provided it is impartial and conducted

1790
Military Court sitting in Ramallah, Military Prosecutor v. Omar Mahmud Kassen et al., 42 International
law Reports 1971, 479; District Court of Tokyo, Shimoda et al. v. The State, 32 International Law Reports
1966, 634.
1791
E. DAVID, Principes de droit des conflits armés, Brussels, Bruylant, 2008, 353.
1792
A. CASSESE, “Weapons causing Unnecessary Suffering: Are They Prohibited?”, Rivista di Diritto
Internazionale 1975, 18.
1793
Article 23 (d) Regulations respecting the Laws and Customs of War on Land, annex to the Hague
Convention (IV) respecting the Laws and Customs of War on Land (1907); Article 40 Protocol (I) Additional to
the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (1977); Article 4 (1) Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of Non-international Armed Conflicts (1977). See also: Constitutional
Court of Colombia, Case No. C-225/95, Judgment, 18 May 1995, §§ 35-36, at
http://www.corteconstitucional.gov.co.
1794
Article 23 (b) Regulations respecting the Laws and Customs of War on Land, annex to the Hague
Convention (IV) respecting the Laws and Customs of War on Land (1907); Article 37 (1) Protocol (I)
Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
International Armed Conflicts (1977). The treacherous killing, wounding or capturing and perfidy overlap: C.
BYRON, War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal Court,
Manchester, Manchester University Press, 2009, 115-117. J.-M. HENCKAERTS and L. DOSWALD-BECK,
Customary International Humanitarian Law, Volume I: Rules, Cambridge, Cambridge University Press, 2005,
223.
1795
Article 54 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); Article 14 Protocol (II) Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed
Conflicts (1977).

375
without any adverse distinction; they may however control the relief.1796 States must consent
to the relief, but may not withhold consent on arbitrary grounds.1797 They must also allow
freedom of movement to humanitarian relief personnel as far as this is essential for the
exercise of their functions, but may temporarily restrict this freedom in case of imperative
military necessity.1798

§3. The prohibition of slavery, servitudes and forced labour

410. The prohibition of slavery has been firmly established in international law. Already in
1815 the Declaration relative to the Universal Abolition of the Slave Trade stated that the
slave trade is repugnant to the values of the civilized international community.1799 During the
course of the 19th and 20th century slavery, the slave trade, certain aspects of slavery, slavery-
like practices and forced labour were prohibited or criminalized in international
conventions.1800 Slavery is repugnant because it denies the freedom and humanity of a person
by reducing her to an object that can be possessed or traded and by denying or severely
restricting her autonomy and rights. Not surprisingly, slavery and servitudes have been
prohibited in regional and international human rights treaties1801 and are considered non-

1796
Article 23 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949);
Article 70 (2) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); Article 18 (2) Protocol (II) Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed
Conflicts (1977).
1797
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Commentaire des Protocoles additionnels du 8 juin
1977 aux Conventions de Genève du 12 août 1949, Geneva, Nijhoff, 1986, No. 2805.
1798
Article 71 (3) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); this is implied in Article 18 (2) Protocol (II): J.-
M. HENCKAERTS and L. DOSWALD-BECK, Customary International Humanitarian Law, Volume I: Rules,
Cambridge, Cambridge University Press, 2005, 195.
1799
Declaration Relative to the Universal Abolition of the Slave Trade (1815), De Martens Nouveau Recueil de
Traités 1814-1815, Tome II, 433.
1800
There are around 300 conventions dealing with slavery and related practices: D. WEISSBRODT and ANTI-
SLAVERY INTERNATIONAL, Abolishing Slavery and Its Contemporary Forms, New York, Office of the United
Nations High Commissioner on Human Rights, 2002, 3. The most important include: Treaty for the Suppression
of the African Slave Trade (1841), De Martens Nouveau Recueil général des Traités 1841, Tome II, 508;
General Act of the Conference respecting the Congo Basin (1885), De Martens Nouveau Recueil général des
Traités 1853-85, Tome X, 419; International Agreement for the Suppression of the White Slave Traffic (1904),
League of Nations Treaty Series No. 11; International Convention on the Suppression of the White Slave
Traffic (1910), League of Nations Treaty Series No. 8; International Convention for the Suppression of the
Traffic in Women and Children (1921) League of Nations Treaty Series No. 269; Convention to Suppress the
Slave Trade and Slavery (1926), League of Nations Treaty Series No. 1414; International Convention for the
Suppression of the Traffic of Women of Full Age (1933), League of Nations Treaty Series No. 3476;
Convention of the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others (1950),
United Nations Treaty Series No. 1342; Supplementary Convention on the Abolition of Slavery, the Slave
Trade and Institutions and Practices Similar to Slavery (1956), United Nations Treaty Series No. 3822; Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000), United
Nations Treaty Series No. 39574.
1801
Article 8 (1) and (2) International Covenant on Civil and Political Rights (1966); Article 5 African Charter
on Human and Peoples’ Rights (1981); Article 6 (1) American Convention on Human Rights (1969); Article 10
Arab Charter of Human Rights (2004); Article 4 (1) European Convention for the Protection of Human Rights

376
derogable rights1802. The prohibition of slavery has been considered a peremptory norm in
State practice1803 and doctrine.1804 The Inter-American Court of Human Rights found that the
prohibition of slavery was a peremptory norm.1805 The International Court of Justice has held
that the prohibition of slavery is an obligation erga omnes.1806 The enslavement of persons,
sexual slavery and enforced prostitution are equally international crimes.1807

and Fundamental Freedoms (1950); Article 4 Universal Declaration of Human Rights, UN General Assembly
Resolution 217A (III).
1802
Article 4 (2) International Covenant on Civil and Political Rights (1966); Article 27 (2) American
Convention on Human Rights (1969); Article 4 (2) Arab Charter on Human Rights (2004); Article 15 (2)
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).
1803
Lebanon, 52nd Meeting of the Committee of the Whole, United Nations Conference on the Law of Treaties,
Official Records, Vol. I, 1969, § 43 Chile, 52nd Meeting of the Committee of the Whole, l.c., § 61; Sierra Leone,
53rd Meeting of the Committee of the Whole, l.c.,, § 9; Ghana, 53rd Meeting of the Committee of the Whole,
l.c., § 16; Poland, 53rd Meeting of the Committee of the Whole, l.c., § 35 Uruguay, 53rd Meeting of the
Committee of the Whole, l.c., § 48; Cyprus, 53rd Meeting of the Committee of the Whole, l.c., § 69; Ceylon,
55th Meeting of the Committee of the Whole, l.c., § 38; Tanzania, 56th Meeting of the Committee of the Whole,
l.c., § 2; Philippines, 56th Meeting of the Committee of the Whole, l.c., § 20; Mexico, 75th Meeting of the
Committee of the Whole, l.c., § 12; United Kingdom, 19th Plenary Meeting, United Nations Conference on the
Law of Treaties, Official Records, Vol. II, 1970, § 54; Poland, 19th Plenary Meeting, l.c., § 71; United States,
20th Plenary Meeting, l.c., § 21, Iraq, 20th Plenary Meeting, l.c., § 32; Spain, 22nd Plenary Meeting, l.c., § 72;
Doe I v. Unocal 395 F.3d 945; United States v. Matta-Ballesteros, 71 F.3d 764, note 5 (9th Cir.1995); Tribunal
fédéral, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November 2007, § 7.3.
1804
“Report of the International Law Commission Covering the Work of Its Fifteenth Session”, Yearbook of the
International Law Commission 1963, Vol. II, 198-199; Human Rights Committee, General Comment No. 24,
Reservations to the Covenant or Optional Protocols or Declarations under Article 41 of the Covenant, UN Doc.
CCPR/C/21/Rev.1/Add.6, § 8; M. CHERIF BASSIOUNI, “Enslavement as an International Crime”, New York
University Journal of International Law and Policy 1990-1991, 445 and 449; A. YASMINE RASSAM,
“Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery under Customary International
Law”, Virginia Journal of International Law 1999, 310; P.-M. DUPUY, “The Constitutional Dimension of the
Charter of the United Nations Revisited”, Max Planck Yearbook of United Nations Law 1997, 10; A.
NICHOLSON, “Reflexions on Siliadin v. France: Slavery and Legal Definition”, International Journal of Human
Rights 2010, 708; A. FISCHER-LESCANO, “Die Emergenz der Globalverfassung”, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 2003, 745; B. FASSBENDER, “The United Nations Charter as Constitution of
the International Community”, Columbia Journal of Transnational Law 1998, 590; F. DE LONDRAS, “The
Religiosity of Jus Cogens: A Moral Case for Compliance?”, in J. REHMAN and S.C. BREAU (eds.), Religion,
Human Rights and International Law: A Critical Examination of Islamic State Practices, Leiden, Nijhoff, 2007,
253; H.P. AUST and N. NASKE, “Rechtsschutz gegen den UN-Sicherheitsrat durch europäische Gerichte? Die
Rechtsprechung des EuG zur Umsetzung ‘gezielter Sanktionen’ aus dem Blickwinkel des Völkerrechts”,
Zeitschrift für öffentliches Recht 2006, 608; M. REIMANN, “A Human Right Exception to Sovereign Immunity
Some Thoughts on Princz v. Federal Republic of Germany”, Michigan Journal of International Law 1994-
1995, 406; U. SCHEUNER, “Conflict of Treaty Provisions with A Peremptory Norm of General International
Law and Its Consequences, Comments on Arts. 50, 61 and 67 of the ILC’s Draft Articles on the Law of
Treaties”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1967, 526; A.C. BELSKY, M. MERVA
and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A Proposed Exception to Immunity for Violations
of Peremptory Norms of International Law”, California Law Review 1989, 389.
1805
Inter-American Court on Human Rights, Aloeboetoe et al. v. Suriname, Reparation and Costs, Judgment, 10
September 1993, Series C, No. 15, § 57.
1806
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, ICJ
Rep. 1970, § 34. See also: Separate Opinion Judge ad hoc DUGARD, Armed Activities on the Territory of the
Congo (Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006, §
10, in which the prohibition of slavery is accepted as a peremptory norm.
1807
Article 6 (b) and (c) Charter of the Nuremberg International Military Tribunal (1945); Article 5 (c) Charter
of the International Tribunal for the Far East (1945); Article 5 (c) Statute of the International Criminal Tribunal

377
411. Although it is undisputed that slavery and similar practices belong to jus cogens, the
precise definition of slavery is debated. The 1926 Slavery Convention for the first time
defined slavery as “the status or condition of a person over whom any of the powers attaching
to the right of ownership are exercised”. This definition was interpreted by the European
Court on Human Rights as covering only chattel slavery, or slavery where the victims are
regarded as legally the ownership of their master.1808 However, this interpretation is too
narrow since the definition of the Slavery Convention does not require that the law legally
recognizes slavery. The mere condition of a person as someone over whom another person
factually exercises any of the powers that are normally associated with ownership would
suffice.1809 In this respect, “status” refers to legal status, whereas “condition” means any
situation that is similar to being in the ownership of another person.1810 The prohibition of
slavery would also cover the slave trade and trafficking of persons, sexual slavery, enforced
prostitution,1811 which would include child prostitution and child pornography.1812
Furthermore, servitudes such as the practice of debt bondage, serfdom, the purchase and

for the Former Yugoslavia (1993); Article 3 (c) and Article 4 (e) Statute of the International Criminal Tribunal
for Rwanda (1994); Article 7 (c) and (g), Article 8 (2)(b) (xxii) and Article 8 (2)(e)(vi) Rome Statute of the
International Criminal Court (1998); Article (2) (c) and Article 3 (e) Statute of the Special Court for Sierra
Leone (2002); Article 5 and Article 6 Law on the Establishment of Extraordinary Chambers in the Courts of
Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as Amended
(2004). For an overview of earlier case law: Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-T,
Trial Chamber, Judgment, 22 February 2001, §§ 522-527.
1808
Siliadin v. France, Application No. 73316/01, Merits and Just Satisfaction, Judgment, 26 July 2005,
Reports of Judgments and Decisions 2005-VII, § 122.
1809
What is central to slavery is domination and exploitation: A. YASMINE RASSAM, “Contemporary Forms of
Slavery and the Evolution of the Prohibition of Slavery under Customary International Law”, Virginia Journal
of International Law 1999, 320-321; A. YASMINE RASSAM, “International Law and Contemporary Forms of
Slavery: An Economic and Social Rights-Based Approach”, Penn State International Law Review 2004-2005,
815-817.
1810
Prosecutor v. Kunarac et al., Case No. IT-96-23-A & IT-96-23/1-A, Appeals Chamber, Judgment, 12 June
2002, §§ 117-118; R. v. Tang, [2008] HCA 39. In R v. Tang, the High Court of Australia did not go as far as the
International Criminal Tribunal for the Former Yugoslavia in Kunarac. The judgment in Kunarac also
considered certain conditions that are not related to the powers of ownership as indicative for the crime of
enslavement: Ibid., § 119 The High Court however only considered those conditions that resemble an exercise
of any of the powers of ownership to be relevant: J. ALLAIN, “R v Tang, Clarifying the Definition of ‘Slavery’
in International Law”, Melbourne Journal of International Law 2009, 251.
1811
The concept of “white slavery” was used to contrast this form of slavery with the transatlantic slave trade
and the slavery of blacks: N.V. DEMNLEITER, “Forced Prostitution: Naming an International Offense”, Fordham
International Law Journal 1994-1995, 166; A. YASMINE RASSAM, “Contemporary Forms of Slavery and the
Evolution of the Prohibition of Slavery under Customary International Law”, Virginia Journal of International
Law 1999, 319. Sexual slavery and enforced prostitution significantly overlap, but enforced prostitution implies
that the perpetrator receives an advantage from the sexual acts: V. OOSTERVELD, “Sexual Slavery and the
International Criminal Court: Advancing International Law”, Michigan Journal of International Law 2003-
2004, 645.
1812
Article 1 (d) Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery (1956); Article 34 Convention on the Rights of the Child (1989); Optional Protocol
to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography
(2000); Article 27 African Charter on the Right and Welfare of the Child (1999); Article 10 (2) Arab Charter of
Human Rights (2004).

378
transfer of wives and the exploitation of child labour have equally been prohibited.1813 During
armed conflicts slavery and the slave trade are prohibited.1814 Furthermore, international law
explicitly prohibits enforced prostitution1815 and the compulsory recruitment of children into
the armed forces.1816

412. The Slavery Convention of 1926 deems forced labour to be equally serious problem as
slavery,1817 although not as invidious as slavery since forced labour can be permitted when it
is for public purposes and only exceptionally. Nonetheless, forced labour involves a severe
restriction of the freedom of a person since it includes “all work or service which is exacted
from any person under the menace of any penalty and for which the said person has not
offered himself voluntarily.”1818 Forced labour hence involves pressure or violence on
individuals to perform a certain activity, which is akin to slavery, and therefore belongs to jus
cogens.1819 The cautious wording of the convention, that the prohibition of forced labour
should be abolished within the shortest possible time, is not relevant anymore since it referred
to the colonial era were the colonized peoples were forced to perform labour for public

1813
Article 1 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions Similar to
Slavery (1956). Some of those practices would have already fallen under the Slavery Convention of 1926: D.
WEISSBRODT and ANTI-SLAVERY INTERNATIONAL, Abolishing Slavery and Its Contemporary Forms, New
York, Office of the United Nations High Commissioner on Human Rights, 2002, 6.
1814
Article 4 Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (1977); Prosecutor v. Krnojelac, Case No. IT-97-
25-T, Trial Chamber, Judgment, 15 March 2002, § 356. Although the prohibition of slavery and the slave trade
is not explicitly mentioned in the Geneva Conventions and Protocol (I), the prohibition can be deduced from the
strict regulation of forced labour: J.-M. HENCKAERTS and L. DOSWALD-BECK, Customary International Law,
Volume I: Rules, Cambridge, Cambridge University Press, 2005, 327.
1815
Article 27 Geneva Convention (IV) Relative to the Protection of Civilians in Time of War (1949); Article
75 (2)(b) and 76 (1) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); Article 4(2)(e) Protocol (II) Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed
Conflicts (1977).
1816
Article 77 (2) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); Article 4 (3)(c) Protocol (II) Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed
Conflicts (1977); Article 38 (3) Convention on the Rights of the Child (1989); Article 2 Optional Protocol to
the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000); Article 3
(a) Convention No. 182 on the Worst Forms of Child Labour (1999); Article 22 (2) African Charter on the
Right and Welfare of the Child (1999); Article 10 (2) Arab Charter of Human Rights (2004).
1817
Article 5 Convention to Suppress the Slave Trade and Slavery (1926).
1818
Article 2 (1) Convention No. 29 concerning Forced or Compulsory Labour (1930).
1819
INTERNATIONAL LABOUR ORGANIZATION, “Report of the Commission of Inquiry Appointed under Article
26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the
Forced Labour Convention, 1930 (No. 29)”, 2 July 1998, § 203, at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm. In Doe I v. Unocal, 395 F.3d
932 (9th Cir. 2002) forced labour was considered to be prohibited by a peremptory norm and a modern form of
slavery: Ibid., 945. The Italian Corte suprema di Cassazione has equally considered forced labour a violation of
jus cogens: Ferrini c. Repubblica federale di Germania, sezione unite n. 5044/04, depositata l’11.03.2004,
Diritto e Giustizia del 16.03.2004, § 4 jucto §§ 7.1-7.4, at
http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-sentenza_corte_di_cassazione-11_03_05_001.doc; C.
FOCARELLI, “Federal Republic of Germany v. Giovanni Mantelli and Others: Italian Court of Cassation Opinion
on Foreign Sovereign Immunity in Cases of Civil Liability for International Crimes”, American Journal of
International Law 2009, 123.

379
works.1820 Thus, the International Labour Organization has rightly held that forced labour is
now prohibited under international law.1821 Moreover, the Nuremberg Tribunal did not
distinguish between slavery, slave-like practices and forced labour.1822 The International Law
Commission considered slavery, slave like practices and forced labour as falling under the
international crime of enslavement.1823 However, certain instances that would fall under the
definition of forced labour are excluded from the general prohibition, namely compulsory
military service of non-service men and women and national service required by law of
conscientious objectors, prison labour, normal civic obligations (sitting on a jury; assistance
of law-enforcement officers), works of services in cases of emergencies, and minor
community services.1824 Nonetheless, pursuant to Article 1 (1) Convention No. 105
concerning the Abolition of Forced labour, forced labour may not be employed as a means of
political coercion or education, as a punishment for holding or expressing political views, as a
method of mobilising and using labour for economic development, as a means of labour
discipline, as a punishment for participation in strikes, or as a means of racial, social, national
or religious discrimination.

413. Although the prohibition of forced labour is derogable under the International Covenant
on Civil and Political Rights, humanitarian law strictly regulate the use of forced labour in
times of armed conflict. In non-international armed conflicts detainees that are forced to work
should receive the same working conditions and safeguards of the local population.1825 The
prohibition of abusive forced labour in international armed conflicts is extensively regulated.
First, in no circumstance is it allowed to compel persons to serve in the armed forces of a
hostile State and doing so is an international crime.1826 Second, concerning civilians, aliens in
the territory of a party to the armed conflict may be forced to work in the same situations as

1820
The “need” for forced labour in colonial territories with “less-civilized peoples” was the cause that slavery
and forced labour were treated differently with guarantees that forced labour would not evolve into slavery: L.
KNOTT, “Unocal Revisited: On the Differences between Slavery and Forced Labor in International Law”,
Wisconsin International Law Journal 2010, 216-217.
1821
INTERNATIONAL LABOUR ORGANIZATION, “Report of the Commission of Inquiry Appointed under Article
26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the
Forced Labour Convention, 1930 (No. 29)”, 2 July 1998, § 218, at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm.
1822
See: Prosecutor v. Kunerac et al., Case No. IT-96-23-T & IT-96-23/1-T, Trial Chamber, Judgment, 22
February 2001, § 523.
1823
“Draft Code of Crimes against the Peace and Security of Mankind”, “Report of the International Law
Commission on its Forty-Eight Session”, Yearbook of the International Law Commission 1996, Vol. II, Part 2,
48.
1824
Article 2 (2) Convention No. 29 concerning Forced or Compulsory Labour (1930); Article 8 (3)(c)
International Covenant on Civil and Political Rights (1966); INTERNATIONAL LABOUR ORGANIZATION, “Report
of the Commission of Inquiry Appointed under Article 26 of the Constitution of the International Labour
Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29)”, 2 July
1998, §§ 208-213, at http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm.
1825
Article 5 (1) (e) Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (1977).
1826
Article 23 (h) Regulations respecting the Laws and Customs of War on Land, annex to the Hague
Convention (IV) respecting the Laws and Customs of War on Land IV (1907); Article 130 Convention (III)
Relative to the Treatment of Prisoners of War (1949); Article 147 Convention (IV) Relative to the Protection of
Civilians in Time of War (1949); Article 8 (2)(a)(v) and (b)(xv) Rome Statute of the International Criminal
Court (1998).

380
nationals of that States. If the aliens have the nationality of an enemy, they can only be
compelled to perform humanitarian tasks and they benefit from the same working conditions
as nationals.1827 In any event, internees may not be forced to work.1828 In occupied territories,
however, the Hague Regulations provide that requisitions in kind and services may be
demanded from the civilian population and municipalities for the needs of the occupying
army, provided that they do not lead to the inhabitants taking part in military operations
against their own country, they are proportionate to the resources of the occupied territory and
take into account the needs of the population of the occupied territory. 1829 Geneva
Convention (IV) builds upon the Hague Regulations. It allows that civilians living in occupied
territories over eighteen years may be compelled to work for the benefit of the Occupying
Power or for ensuring public utility services and the feeding, sheltering, clothing,
transportation and health of the inhabitants as long as this would not force them to take part in
military operations or would not lead to the mobilization of workers in military or
paramilitary organizations of the Occupying Power.1830 Consequently, compelling civilians to
perform work which is related to military activities is prohibited. If civilians work for the
needs of the Occupying Power, these works may only be performed for the maintenance
needs of the army, but not for its strategic or tactical needs.1831 Works that benefits the
civilian population mainly concerns economic sectors which help to reconstruct and provide
basic services to the civilian population. The legislation in force in the occupied country
concerning working conditions, and the safeguards it provides will remain applicable to the
protected persons.
Third, concerning prisoners of war the Geneva Convention (III) provides in a detailed
regulation. Prisoners of war who are physically and mentally fit can be compelled to work
taking into account their age, sex, rank and physical capacity, and with a view to maintaining
them in a good state of physical and mental health.1832 Hence, the real purpose of putting
prisoners of war to work is to ensure their physical fitness, protect their morale from boredom,
and provide them with financial resources, not to provide the Detaining Power with cheap
labour. While the rank may be compelled to perform labour, officers or persons of equivalent
status may not, although they should be given work if they specifically demand it. If prisoners
of war are employed the general principle is that of assimilation with civilian workers of the
Detaining State: they should in all respects be treated and paid in the same manner as ordinary
workers, unless the national regulation would fall below the general protection of the Third
Geneva Convention, in which case the latter applies.
Article 50 Geneva Convention (III) lists the work prisoners of war may be compelled to
perform besides work connected with camp administration, installation or maintenance.
Prisoners of war may be compelled to work in agriculture, in industries connected with the
production or the extraction of raw materials and manufacturing industries, commercial
business and arts and crafts, and domestic service, whether they are related to the military
operations or not. They can also be compelled to work in public works and building

1827
Article 40 Geneva Convention (IV) Relative to the Protection of Civilians in Time of War (1949).
1828
Article 95 Geneva Convention (IV) Relative to the Protection of Civilians in Time of War (1949).
1829
Article 52 Regulations respecting the Laws and Customs of War on Land, annex to the Hague Convention
(IV) respecting the Laws and Customs of War on Land IV (1907).
1830
Article 51 Geneva Convention (IV) Relative to the Protection of Civilians in Time of War (1949).
1831
O. UHLER and H. COURSIER, Geneva Convention Relative to the Protection of Civilians in Time of War,
Commentary, Geneva, ICRC, 1958, 294.
1832
Article 49 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).

381
operations, in the transport and handling of stores, and public utility services, on the condition
that the works are not military in character or purpose.1833 Prisoners of war may under no
circumstance be compelled to work in metallurgical, machinery and chemical industries.
However, they may volunteer for such works. In Prosecutor v. Naletelić and Martinović, the
Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia ruled that
when a prisoner of war has consented to perform prohibited labour, there will be no violation
of the Geneva Convention (III) and consequently no criminal responsibility.1834 This
judgment is in line with Article 52 Geneva Convention (III) that establishes that prisoners of
war may be employed on labour which is of an unhealthy or dangerous nature, for instance
the clearing of mines, if he consents. Nevertheless, prisoners of war cannot consent to work
which is considered humiliating for the members of the armed forces of the Detaining Power.

§4. Prohibition of torture and inhumane and degrading treatment or punishment

414. The prohibition of torture is one of the most prominent and widespread example of a
peremptory norm. It has been recognized as a norm of jus cogens in State practice,1835
international case law1836 and doctrine.1837 The prohibition of torture is a non-derogable

1833
The requirement that handling and transporting stores cannot be done by prisoners in case of military
character or purpose creates an illogical consequence that these goods may be manufactured without restriction,
but then not handled or transported. For instance, the production of gas masks falls under manufacturing
industries where there is no restriction, but these masks may not be transported to the armed forces: H.S.
LEVIE, Prisoners of War in International Armed Conflict, Newport, U.S. Naval War College, 1977, 235.
1834
Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Trial Chamber, Judgment, 31 March 2003, §§
257-258.
1835
Supra, No. 170; Legality of the Use of Force (Yugoslavia v. Belgium), Request for the Indication of
Provisional Measures, Oral Statement of Belgium, CR 99/15, 10 May 1999, 16, at http://www.icj-
cij.org/docket/files/105/4513.pdf.
1836
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 454;
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, § 144, §§ 153
et seq.; Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-T, Trial Chamber, Judgment, 22 February
2001, § 466; European Court on Human Rights, Al-Adsani v. the United Kingdom, Application No. 35963/97,
Merits, Judgment, 21 November 2001, Reports of Judgments and Decisions 2001-XI, § 61. The Inter-American
Court has been active in identifying peremptory norms, including the prohibition of torture and inhumane
treatment: Ximines Lopes v. Brasil, Merits, Reparation and Costs, Judgment, 4 July 2006, Series C, No. 149, §
126; Fermín Ramírez v. Guatemala, Merits, Reparation and Costs, Judgment, 20 June 2005, Series C, No. 126,
§ 117; Caesar v. Trinidad & Tobago, Merits, Reparation and Costs, Judgment, 11 March 2005, Series C, No.
123, § 70; Tibi v. Ecuador, Preliminary Objections, Merits, Reparation and Costs, Judgment, 7 September
2004, Series C, No. 114, § 143; Hermanos Gómez Paquiyauri v. Peru, Merits, Reparation and Costs, Judgment,
8 July 2004, Series C, No. 110, §§ 111-112; Maritza Urrutia v. Guatemala, Merits, Reparation and Costs,
Judgment, 27 November 2003, Series C, No. 103, § 92; Separate Opinion Judge ad hoc DUGARD, Armed
Activities on the Territory of the Congo (Democratic Republic of Congo v. Rwanda), Jurisdiction and
Admissibility, Judgment, ICJ Rep. 2006, § 10.
1837
P.-M. DUPUY, “The Constitutional Dimension of the Charter of the United Nations Revisited”, Max Planck
Yearbook of United Nations Law 1997, 10; A. FISCHER-LESCANO, “Die Emergenz der Globalverfassung”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2003, 745; E. DE WET, “The Prohibition of
Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law”,
European Journal of International Law 2004, 97 et seq; F. DE LONDRAS, “The Religiosity of Jus Cogens: A
Moral Case for Compliance?”, in J. REHMAN and S.C. BREAU (eds.), Religion, Human Rights and International
Law: A Critical Examination of Islamic State Practices, Leiden, Nijhoff, 2007, 253; H.P. AUST and N. NASKE,
“Rechtsschutz gegen den UN-Sicherheitsrat durch europäische Gerichte? Die Rechtsprechung des EuG zur

382
human right and must hence be respected at all times.1838 It is furthermore an international
crime: it is a war crime in international and non-international armed conflicts and if
committed on a widespread scale or in a systematic manner it is regarded a crime against
humanity.1839 From a constitutional perspective torture and inhumane and degrading treatment
and punishment are prohibited because they violate the dignity and physical and mental
integrity of a person.1840 It removes the humanity and autonomy of a person that is often in a
vulnerable position by inducing fear in the victim that he or she can be subjected at all times
to severe suffering.

415. The prohibition of torture has not been defined in the International Covenant on Civil
and Political Rights and in regional human rights law. However, torture is defined in Article 1
(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, which has been held to constitute a customary norm.1841 According to this
definition, torture is the infliction of severe pain or suffering by officials or official sanction
for obtaining information or confessions, for punishment, intimidation and coercion, or out of

Umsetzung ‘gezielter Sanktionen’ aus dem Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht
2006, 608; M. REIMANN, “A Human Right Exception to Sovereign Immunity Some Thoughts on Princz v.
Federal Republic of Germany”, Michigan Journal of International Law 1994-1995, 407; A. ZIMMERMAN,
“Sovereign Immunity and Violations of International Jus Cogens – Some Critical Remarks”, Michigan Journal
of International Law 1994-1995, 438; U. SCHEUNER, “Conflict of Treaty Provisions with A Peremptory Norm
of General International Law and Its Consequences, Comments on Arts. 50, 61 and 67 of the ILC’s Draft
Articles on the Law of Treaties”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1967, 526;
A.C. BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A Proposed Exception to
Immunity for Violations of Peremptory Norms of International Law”, California Law Review 1989, 389; K.
REECE THOMAS and J. SMALL, “Human Rights and State Immunity: Is there Immunity from Civil Liability for
Torture”, Netherlands International Law Review 2003, 2.
1838
Article 4 (2) and Article 7 International Covenant on Civil and Political Rights (1966); Article 2 (2)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984); Article 5
African Charter of Human and Peoples’ Rights (1981); Article 5 and Article 27 (2) American Convention on
Human Rights (1969); Articles 8-9 and Article 4 Arab Charter of Human Rights (2004); Article 3 and Article
15 (2) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).
1839
Article 6 (b) and (c) Charter of the Nuremberg International Military Tribunal (1945); Article 5 (b) and (c)
Charter of the International Tribunal for the Far East (1945); Article 2 (b) Statute of the International Criminal
Tribunal for the Former Yugoslavia (1993); Article 3 (b) and Article 4 (a) and (e) Statute of the International
Criminal Tribunal for Rwanda (1994); Article 7 (1)(f), Article 8 (2)(a)(ii) and (xxi) and Article 8 (2)(c)(ii) and
(vi) Rome Statute of the International Criminal Court (1998); Article 2 (f) and Article 3 (a) and (e) Statute of
the Special Court for Sierra Leone (2002); Article 5 and Article 6 Law on the Establishment of Extraordinary
Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of
Democratic Kampuchea, as Amended (2004).
1840
Human Rights Committee, General Comment No. 20, Article 7 (Prohibition of Torture, or Other Cruel,
Inhuman or Degrading Treatment or Punishment), UN Doc. HRI/GEN/1/Rev.7, § 2; European Court of Human
Rights, Selmouni v. France, Application No. 25803/94, Merits and Just Satisfaction, Judgment, 28 July 1999,
Reports of Judgments and Decisions 1999-V, § 99.
1841
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 459;
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 18 December 1998, § 160; it has
also been used to define torture at the regional level: European Court of Human Rights, Selmouni v. France,
Application No. 25803/94, Merits and Just Satisfaction, Judgment, 28 July 1999, Reports of Judgments and
Decisions 1999-V, § 97 and § 100; Id., Ilaşcu and Others v. Moldova and the Russian Federation, Application
No. 48787/99, Merits and Just Satisfaction, Judgment, 8 July 2004, Reports of Judgments and Decisions 2004-
VII, § 426; Inter-American Commission on Human Rights, Fernando and Raquel Mejia v. Peru, Case No.
10.970, Report No. 5/96, OEA/Ser.L/V/II.91 Doc. 7 (1995), 185.

383
discrimination. A similar understanding of the notion of torture can be found in international
humanitarian law, although it does not provide for an express definition.1842 It is not required
that the pain or suffering is extreme,1843 but the pain and suffering must pass a certain
threshold of severity, which is however difficult to define since this is not a purely objective
assessment but also involves subjective factors.1844 Furthermore, the duration of the conduct is
also relevant in assessing the severity of the pain and suffering. In any event, severe beatings,
extraction of nails and teeth, electroshocks, mock executions, starvation, prolonged
detentions, and total isolation would constitute torture.1845 Equally, rape has rightly been held
to constitute torture1846 and the same would be the case for other acts of sexual violence.
Concerning official involvement, in human rights law this is not only limited to acts by State
agents but also includes acquiescence and passive attitude and groups that have factual control
if the conduct of the group can be attributed to a State or if there is no functioning
government.1847 States can also be held responsible if they fail to prevent torture or do not
adequately prosecute torture.1848 In international humanitarian law and international criminal

1842
J. DE PREUX, Geneva Convention Relative to the Treatment of Prisoners of War, Commentary, Geneva,
ICRC, 1960, 627; O. UHLER and H. COURSIER, Geneva Convention Relative to the Protection of Civilian
Persons in Time of War, Commentary, Geneva, ICRC, 1958, 598.
1843
Prosecutor v. Brđanin, Case No. IT-99-36-A, Appeals Chamber, Judgment, 3 April 2007, § 249.
1844
European Court of Human Rights, Ireland v. The United Kingdom, Application No. 5310/71, Merits and
Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25, § 167; Id., Aksoy v. Turkey, Application No.
21987/93, Merits and Just Satisfaction, Judgment, 18 December 1996, Reports of Judgments and Decisions
1996-VI, §§ 63-64; Id., Ilaşcu and Others v. Moldova and the Russian Federation, Application No. 48787/99,
Merits and Just Satisfaction, Judgment, 8 July 2004, Reports of Judgments and Decisions 2004-VII, § 426; Id.,
A and Others v. The United Kingdom, Application No. 3455/05, Merits and Just Satisfaction, Judgment, 19
February 2009, § 127, at http://cmiskp.echr.coe.int/tkp197/search.asp?sessionid=73099937&skin=hudoc-en;
Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, § 143;
Prosecutor v. Krnojelac, Case No. IT-97-25-T, Trial Chamber, Judgment, 15 March 2002, § 182.
1845
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 461 and
§ 467.
1846
European Court of Human Rights, Aydin v. Turkey, Application No.23178/94, Merits and Just Satisfaction,
Judgment, 25 September 1997, Reports of Judgments and Decisions 1997-VI, §§ 82-86; Inter-American
Commission on Human Rights, Fernando and Raquel Mejia v. Peru, Case No. 10.970, Report No. 5/96, 1,
OEA/Ser.L/V/II.91 Doc. 7, (1985), 187; Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber,
Judgment, 2 September 1998, § 597; Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber,
Judgment, 16 November 1998, §§ 495-496; Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber,
Judgment, 18 December 1998, § 163; Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-A, Appeals
Chamber, Judgment, 12 June 2002, § 151; the threat of rape can in some circumstances equal torture:
Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, § 561.
1847
Committee against Torture, Dzemajl and Others v. Serbia and Montenegro, Communication No. 161/2000,
UN Doc. A/58/44, Annex VI, § 9.2; Id., G.R.B. v. Sweden, Communication No. 83/1997, UN Doc. A/53/44,
Annex X, 92, § 6.5; Id., Sadiq Shek Elmi v. Australia, Communication No. 120/1998, UN Doc. A/54/44, Annex
VII, § 6.5 and § 6.7; Id., H.M.H.I. v. Australia, Communication No. 177/2001, UN Doc. A/57/44, 146, § 6.4.
This mirrors Article 9 Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001): S.
SIVAKUMARAN, “Torture in International Human Rights and International Humanitarian Law: The Actor and
the Ad Hoc Tribunals”, Leiden Journal of International Law 2005, 551.
1848
Article 2 (1) and Article 4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984); Human Rights Committee, General Comment No. 20, Article 7 (Prohibition of Torture, or
Other Cruel, Inhuman or Degrading Treatment or Punishment), UN Doc. HRI/GEN/1/Rev.7, § 8; Id., General
Comment No. 31, Nature of the General Legal Obligation Imposed on State Parties to the Covenant, UN Doc.
CCPR/C/21/Rev.1/Add.13, § 8; European Court of Human Rights, Z and Others v. the United Kingdom,
Application No. 29392/95, Merits and Just Satisfaction, Judgment, 10 May 2001, Reports of Judgments and
Decisions 2001-V, § 73; Id., A v. the United Kingdom, Application No. 25599/94, Merits and Just Satisfaction,

384
law, however, the element of official involvement is not required and torture can be
committed by groups that have no relation to any State, such as insurgent groups.1849 From the
perspective of constitutionalism based on jus cogens, there must be an involvement of a law-
making actor, which may be a State or international organization. Torture that cannot be
related to these actors would be a matter of international criminal law. Finally, the inflicting
of severe pain and suffering has to be done intentionally1850 and for a certain purpose listed in
Article 1 (1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.1851 However, the conduct must not be solely done for a certain purpose or that
the purpose was predominant.1852

416. The prohibition of torture is always sided with the prohibition of inhumane or
degrading treatment (and punishment). There is however not much State practice reflecting an
opinio juris cogentis on the prohibition of inhumane or degrading treatment. Nonetheless, the
prohibition has a significant constitutional dimension since like the prohibition of torture it
protects the humanity and dignity of each individual.1853 The prohibition of inhumane or
degrading treatment (or punishment) is equally a non-derogable right1854 and one of the
cornerstones of international humanitarian law and a fundamental guarantee during armed

Judgment, 23 September 1998, Reports of Judgments and Decisions 1998-VI, § 22; Id., M.C. v. Bulgaria,
Application No. 39272/98, Merits and Just Satisfaction, Judgment, 4 December 2003, Reports of Judgments
and Decisions 2003-XII, §§ 149-150; Inter-American Court on Human Rights, Tibi v. Ecuador, Preliminary
Objections, Merits, Reparation and Costs, Judgment, 7 September 2004, Series C, No. 114, § 159; Id., Maritza
Urrutia v. Guatemala, Merits, Reparation and Costs, Judgment, 27 November 2003, Series C, No. 103, §§ 95-
96.
1849
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, §§ 473-
474; Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 18 December 1998, § 162;
Prosecutor v. Furundžija, Case No. IT-95-17/1-A, Appeals Chamber, Judgment, 21 July 2000, § 111. However,
the requirement has been dispensed with as a matter of international criminal law: Prosecutor v. Kunarac et al.,
Case No. IT-96-23 & 23/1-T, Trial Chamber, Judgment, 22 February 2001, § 493 and § 495; Prosecutor v.
Kvočka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, § 139; Prosecutor v.
Kunarac et al., Case No. IT-96-23 & 23/1-A, Appeals Chamber, Judgment, 12 June 2002, § 148; Prosecutor v.
Kvočka et al., Case No. IT-98-30/1-A, Appeals Chamber, Judgment, 28 February 2005, § 284.
1850
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 18 December 1998, § 162;
Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-T, Trial Chamber, Judgment, 22 February 2001, § 483.
1851
European Court of Human Rights, İlhan v. Turkey, Application No. 22277/93, Merits and Just Satisfaction,
Judgment, 27 June 2000, Reports of Judgments and Decisions 2000-VII, § 85; Id., Salman v. Turkey,
Application No. 21986/93, Merits and Just Satisfaction, Judgment, 27 June 2000, Reports of Judgments and
Decisions 2000-VII, § 114; Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-T, Trial Chamber,
Judgment, 22 February 2001, § 485; Prosecutor v. Krnojelac, Case No. IT-97-25-T, Trial Chamber, Judgment,
15 March 2002, § 186; the list has however not been deemed exhaustive: Prosecutor v. Delalić et al., Case No.
IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 470; Prosecutor v. Furundžija, Case No. IT-95-
17/1-T, Trial Chamber, Judgment, 18 December 1998, § 162 (adding humiliating the victim to the list of
purposes); Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, §
140.
1852
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 470;
Prosecutor v. Kunarac et al., Case No. IT-96-23 & 23/1-T, Trial Chamber, Judgment, 22 February 2001, § 486;
Prosecutor v. Krnojelac, Case No. IT-97-25-T, Trial Chamber, Judgment, 15 March 2002, § 184.
1853
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 543.
1854
Article 4 (2) and Article 7 International Covenant on Civil and Political Rights (1966); Article 5 African
Charter of Human and Peoples’ Rights (1981); Article 5 and Article 27 (2) American Convention on Human
Rights (1969); Article 4 (2) and Article 8 Arab Charter on Human Rights (2004); Article 3 and Article 15 (2)
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

385
conflicts.1855 Inhumane and degrading treatment is however nowhere defined and it is
probably unlikely that any comprehensive definition can be construed or that this is desirable.
What is inhumane treatment is not purely objectively determined, but depends on the
circumstances, for instance the nature and context of the treatment, the duration, physical and
mental effect and the personal traits of the victim.1856 Unlike torture, it is not required that the
conduct is imposed for a particular purpose. It in any event covers treatment that causes
serious and mental suffering or seriously attacks the human dignity.1857 Furthermore, the
difference between torture and inhumane treatment is only a matter of degree of severity of
the pain or suffering inflicted. The same conduct may be deemed to amount to torture or
inhumane treatment depending on the circumstances or the victims involved.1858 International
humanitarian law provides some examples of what constitutes inhumane treatment. The
subjecting of the wounded and sick to mutilation and biological or medical experiments that
are not in the interest of the wounded or sick person amounts to inhuman treatment.1859
Another example is the prohibition of corporal punishment.1860 International human rights

1855
Article 12, § 2 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick
Members in Armed Forces in the Field (1949); Article 12, § 2 Geneva Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 13 Geneva
Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 5 and Article 27, § 1 Geneva
Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949); Common Article 3
Geneva Conventions (1949); Article 75 (1) Protocol (I) Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts (1977); Article 4 (1) Protocol
(II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts (1977); Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber,
Judgment, 16 November 1998, § 532.
1856
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 538.
1857
Ibid., § 543; Prosecutor v. Kordič and Čerkez, Case No. IT-95-14/2-A, Appeals Chamber, Judgment, 17
December 2004, § 39; Prosecutor v. Blaskič, Case No. IT-95-14-T, Trial Chamber, Judgment, 3 March 2000, §
154.
1858
For instance, the European Commission of Human Rights and the European Court of Human Rights
disagreed about the techniques used by The United Kingdom in Northern Ireland, the former deeming them
torture, the latter inhumane or degrading treatment: Ireland v. the United Kingdom, Application No. 5310/71,
Merits and Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25, §§ 165 et seq. The passing of time
may also have an effect: European Court of Human Rights, Selmouni v. France, Application No. 25803/94,
Merits and Just Satisfaction, Judgment, 28 July 1999, Reports of Judgments and Decisions 1999-V, § 101.
1859
Article 12 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949); Article 12 Geneva Convention (II) for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Article 13 Geneva Convention
(III) Relative to the Treatment of Prisoners of War (1949); Article 32 Geneva Convention (IV) Relative to the
Protection of Civilian Persons in Time of War (1949); Common Article 3 Geneva Conventions (1949); Article
11 (2) and (4) and Article 75 (2) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts (1977); Article 4 (2) and Article 5 ( 2)(e)
Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts (1977). This is also mentioned in human rights law: Article 7
International Covenant on Civil and Political Rights (1966); Article 9 Arab Charter on Human Rights (2004);
Human Rights Committee, General Comment No. 20, Article 7 (Prohibition of Torture, or Other Cruel,
Inhuman or Degrading Treatment or Punishment), UN Doc. HRI/GEN/1/Rev.7, § 7.
1860
Article 87 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 32
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949); Article 75
(2)(iii) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (1977); Article 4 (2)(a) Protocol (II) Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed
Conflicts (1977). See also: Human Rights Committee, General Comment No. 20, Article 7 (Prohibition of

386
law and humanitarian law equally prohibit degrading treatment (and punishment), or outrages
upon personal dignity. This includes behaviour that does not physically or mentally affect the
well-being of the victims but have the purpose of humiliating or ridiculing them or to force
them to perform degrading acts.1861 The humiliating and degrading treatment must be so
severe that any reasonable person would be outraged taking into account the personal traits
and background of the victim.1862 Degrading treatment may be accompanied with physical or
mental suffering,1863 but this is not required. For instance, the forced performance of
subservient acts and the fear and conditions during detention have been held to amount to
outrages upon personal dignity.1864 It can also be performed against the dead or victims that
are unaware of the occurrence of the humiliating acts.1865

§5. Right to liberty and security of person

417. Another probable peremptory norm is the right to liberty and security of persons.
Although there is not much State practice confirming this right as a peremptory norm,1866 the
right to liberty and security of person has significantly constitutional weight. The right
protects the desire of human beings to liberty and autonomy to fill in their lives. Depriving
persons of their liberty will have serious consequences for the enjoyment of other rights and
may put them into a vulnerable and dependent position, where they may be subjected to other
serious violations of their rights, such as inhumane treatment. Nonetheless, in any society
there will be valid reasons to deprive persons of their liberty. The right is therefore not
absolute, but the various human rights treaties prohibit an arbitrary deprivation of liberty,1867 a

Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), UN Doc. HRI/GEN/1/Rev.7, § 5.

The Inter-American Court has considered the prohibition of corporal punishment part of the prohibition of
torture, inhumane or degrading treatment and part of jus cogens: Caesar v. Trinidad & Tobago, Merits,
Reparation and Costs, Judgment, 11 March 2005, Series C, No. 123, § 70.
1861
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN
(eds.), Commentaire des Protocoles additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949,
Geneva, Nijhoff, 1986, No. 3075; European Court of Human Rights, Ireland v. The United Kingdom,
Application No. 5310/71, Merits and Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25, § 167; Id.,
A and Others v. he United Kingdom, Application No. 3455/05, Merits and Just Satisfaction, Judgment, 19
February 2009, § 127, at http://cmiskp.echr.coe.int/tkp197/search.asp?sessionid=73099937&skin=hudoc-en.
1862
Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-T, Trial Chamber, Judgment, 22 February
2001, § 507.
1863
For instance rape in front of a group of persons: Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial
Chamber, Judgment, 18 December 1998, § 272.
1864
See also: European Court of Human Rights, Soering v. the United Kingdom, Application No. 14038/88,
Merits and Just Satisfaction, Judgment, 7 July 1989, Series A, No. 161, § 111.
1865
C. BYRON, War Crimes and Crimes against Humanity in the Rome Statute of the International Criminal
Court, Manchester, Manchester University Press, 2009, 142
1866
But see: Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 941 (D.C. Cir.
1988); Xuncax v. Gramajo, 886 F.Supp 184 (D. Mass. 1995).
1867
Article 9 (1) International Covenant on Civil and Political Rights (1966); Article 6 African Charter of
Human and Peoples’ Rights (1981); Article 7 (1)-(3) American Convention on Human Rights (1969); Article 14
(1)-(2) Arab Charter of Human Rights (2004); Article 5 (1) European Convention for the Protection of Human
Rights and Fundamental Freedoms (1950); Article 3 and Article 9 Universal Declaration of Human Rights, UN
General Assembly Resolution 217A (III). The different human rights provisions do not overlap however:
Prosecutor v. Krnojelac, Case No. IT-97-25-T, Trial Chamber, Judgment, 15 March 2002, § 113.

387
deprivation that is not warranted by law.1868 For instance, persons may be deprived of their
freedom in case they are suspected or have committed a crime or if there are serious reasons
to believe they are threatening public security.1869 Deprivation of liberty will take place from
the moment a person is not permitted anymore to leave the custody of authorities, even if she
has initially agreed to be deprived of her liberty.1870 In order to ensure that persons are
lawfully deprived of their liberty, the right is accompanied by guarantees that together form
the singly right of liberty and the security of person.1871 Thus, in case of arrest every person
has the right to be informed of the reasons thereof and the charges at the time of arrest and to
be brought speedily before a court.1872 In addition, anyone deprived of his liberty has the right
to challenge the lawfulness of his (continuing) detention before a court and to obtain
compensation for an unlawful deprivation of liberty.1873

1868
The requirement that a deprivation is consistent with the law does not only include that the deprivation is
consistent with national law, it must equally be consistent with human rights law: Human Rights Committee,
van Alphen v. The Netherlands, Communication No. 305/1988, UN Doc. CCPR/C/39/D/305/1988, § 5.8 ; Id., A
v. Australia, Communication No. 563/1993, UN Doc. CCPR/C/59/D/560/1993, § 9.2 ; European Court of
Human Rights, Bozano v. France, Application No. 9990/82, Merits, Judgment, 18 December 1986, Series A,
No. 111, § 54; Id., Kurt v. Turkey, Application No. 24276/94, Merits and Just Satisfaction, Judgment, 25 May
1998, Reports of Judgments and Decisions 1998-III, § 122; Inter-American Court on Human Rights, Cesti
Hurtado v. Peru, Merits, Judgment, 29 September 1999, Series C, No. 56, § 130; African Commission on
Human and Peoples’ Rights, Amnesty International and Others v. Sudan, Communication Nos. 48/90, 50/91,
52/91 and 89/93, African Human Rights Law Reports 2000, 307, § 59. In addition, a deprivation that is prima
facie consistent with national and human rights law, but is giving the circumstances the result of an arbitrary use
of power, will constitute a violation of the right to liberty and security of person: European Court of Human
Rights, Witold Litwa v. Poland, Application No. 26629/95, Merits and Just Satisfaction, Judgment, 4 April
2000, Reports of Judgments and Decisions 2000-III, §§ 78-80; Id., Tsirlis and Kouloumpas v. Greece,
Application Nos. 19233/91 and 19234/91, Merits and Just Satisfaction, Judgment, 17 April 1996, Reports of
Judgments and Decisions 1997-III, §§ 58-59.
1869
Human Rights Committee, General Comment No. 8, Article 9 (Right to Liberty and Security of Persons),
UN Doc. HRI/GEN/1/Rev.6, § 1 and § 4. Preventive detention of persons that may pose a danger to public
security is not possible under the European Convention: Ireland v. the United Kingdom, Application No.
5310/71, Merits and Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25, § 196; Jėčius v. Lithuania,
Application No. 34578/97, Merits and Just Satisfaction, Judgment, 31 July 2000, Reports of Judgments and
Decisions 2000-IX, §§ 50-51; Al-Jedda v. the United Kingdom, Application No. 27021/08, Merits and Just
Satisfaction, Judgment, 7 July 2011, § 100, at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en.
1870
European Court of Human Rights, De Wilde, Ooms and Versyp v. Belgium, Application Nos. 2832/66,
2835/66 and 2899/66, Merits, Judgment, 18 June 1971, Series A, No. 12, § 65.
1871
European Court of Human Rights, Kurt v. Turkey, Application No. 24276/94, Merits and Just Satisfaction,
Judgment, 25 May 1998, Reports of Judgments and Decisions 1998-III, § 123. The UN Human Rights
Committee considers the right to security as a right that operates outside of the context of a deprivation of
liberty: Delgado Páez v. Colombia, Communication No. 195/1985, UN Doc. CCPR/C/39/D/195/1985, §§ 5.5-
5.6
1872
Article 9 (2) and (3) International Covenant on Civil and Political Rights (1966); Article 7 (4)-(5) American
Convention on Human Rights (1969); Article 14 (3) and (5)-(6) Arab Charter on Human Rights (2004); Article
5 (2)-(3) European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Article
9 (3) is only applicable to deprivation of liberty due to criminal procedures: Human Rights Committee, General
Comment No. 8, Article 9 (Right to Liberty and Security of Persons), UN Doc. HRI/GEN/1/Rev.6, 130, § 1.
The African Charter does not explicitly contain this guarantee, but it is implicitly included: African Commission
on Human and Peoples’ Rights, Resolution on the Right to Recourse and Fair Trial, ACHPR/Res4.(XI)92
(1992).
1873
Article 9 (4)-(5) International Covenant on Civil and Political Rights (1966); Article 7 (6) American
Convention on Human Rights (1969); Article 14 (7) Arab Charter on Human Rights (2004); Article 5 (4)-(5)
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Despite the

388
418. It might be argued that the right to be free from arbitrary deprivation of liberty and
security of persons is not a peremptory norm since it can be subjected to derogation.
However, the possibility of derogation does not exclude that a certain human right belongs to
jus cogens and is not a good criterion to identify the peremptory nature of a certain right.1874
Derogation is only possible as far as strictly required by the exigencies of the situation and
derogation measures may not go against other obligations under international law.1875 Hence,
it might not be possible to completely set aside the right to be free from arbitrary deprivation
of liberty because even in the most extreme case of public emergencies the complete abolition
of the right may never be justified.1876 Evidently, the deprivation of liberty during societal
upheaval or armed conflicts may be more justified than in times of peace and this explains the
possibility of derogation. Nonetheless, international humanitarian law, which covers the most
severe public emergencies, places limitations on the deprivation of liberty. Thus, decisions of
deprivation of liberty that violate international humanitarian law will be an infringement of
the right to liberty and security of persons.1877 The conclusion that the right to liberty and
security is not completely derogable is equally confirmed by the war crime of unlawful
confinement and the crime against humanity of imprisonment or other severe deprivation of
liberty.1878

419. International humanitarian law equally prohibits arbitrary detention of all protected
persons. Concerning international armed conflicts, each of the Geneva Conventions specifies
on which grounds protected persons may be detained. Nevertheless, like human rights law the
general principle is that during armed conflicts persons may only be detained on certain
grounds and have to be released from the moment there is no reason to detain them any
longer. Concerning military medical and religious personnel that have fallen into the hands of

absence of this remedy in Article 6, the African Commission has held that anybody deprived of his liberty has
the right to challenge the deprivation before an independent court: African Commission on Human and Peoples’
Rights, Amnesty International and Others v. Sudan, Communication Nos. 48/90, 50/91, 52/91 and 89/93,
African Human Rights Law Reports 2000, 308, § 60; Id., Constitutional Rights Project and Civil Liberties
Organisation v. Nigeria, Communication Nos. 143/95 and 150/96, African Human Rights Law Reports 2000,
239-240, § 31.
1874
Supra, No. 161.
1875
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 4; European Court of Human Rights, Ireland v. the United Kingdom, Application
No. 5310/71, Merits and Just Satisfaction, Judgment, 18 January 1978, Series A, No. 25, § 194.
1876
Ibid., § 11. See also: European Court of Human Rights, Aksoy v. Turkey, Application No. 21987/93, Merits
and Just Satisfaction, Judgment, 18 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 77-78.
The right to petition the courts as to the lawfulness of the detention may not be set aside by derogation: Inter-
American Court on Human Rights, Habeas Corpus in Emergency Situations (Arts. 27 (2), 25 (1) and 7 (6)
American Convention on Human Rights), Advisory Opinion OC-8/87, 30 January 1987, Series A, No. 8, § 42.
1877
See: Inter-American Commission of Human Rights, Coard et al. v. United States of America, Case 10.951,
Report No. 109/99, OEA/Ser.L/V/II.106 Doc.6 rev. (1999), § 57.
1878
Article 147 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949);
Article 2 (g) and Article 5 (e) Statute of the International Criminal Tribunal for the Former Yugoslavia (1993);
Article 3 (e) Statute of the International Criminal Tribunal for Rwanda (1994); Article 7 (1)(e) and Article 8
(2)(a)(vii) Rome Statute of the International Criminal Court (1998); Article 2 (e) Statute of the Special Court for
Sierra Leone (2002); Article 5 and Article 6 Law on the Establishment of Extraordinary Chambers in the Courts
of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as
Amended (2004). The Elements of Crime of the International Criminal Court do not limit unlawful confinement
to civilians, but extent to all protected persons: Elements of Crimes, ICC-ASP/1/3 (Part II-B), 17, at www.icc-
cpi.int.

389
the adversary, the sole reason for their detention is to afford care and support for prisoners of
war. Although they are not considered prisoners of war, they will have all the benefits granted
by the Geneva Convention (III).1879 From the moment such personnel is not needed
(anymore), they should be returned to the State to which they belong.1880 The same applies for
members of National Red Cross Societies and recognized and authorized voluntary aid
societies that may perform the same tasks as military medical and religious personnel,
provided they are under military laws and regulation.1881 Medical and religious personnel of a
neutral State that are put at the disposal of a belligerent State and fall in the hands of the
adversary may not be retained and should be sent back to their country or to the belligerent in
whose service they are.1882 Furthermore, medical and religious personnel, hospital staff and
the crew that is necessary to operate hospital ships may never be captured,1883 since otherwise
the hospital ship cannot perform its humanitarian function.1884 Excess medical and religious
personnel of hospital ships and the medical and religious personnel of other ships may be
retained to take care of the wounded, sick and shipwrecked prisoners of war, but need to be
released as soon as their presence is no longer required.1885
All other members of the armed forces that are captured will become prisoners of war
that may be detained and interned for the duration of active hostilities.1886 The main purpose
of internment of prisoners of war is to ensure they do not join their armed forces during the
conflict. Hence, prisoners of war that due to illness or wounds are not able to fight anymore
should be repatriated. Prisoners which should directly be repatriated are incurably wounded
and sick prisoners whose mental or physical fitness seems to have been gravely diminished,
wounded and sick prisoners who according to medical opinion are not likely to recover within
one year after the sustaining of the injury or illness, whose condition requires treatment and
whose mental or physical fitness seems to have been gravely diminished, and wounded and
sick prisoners of war who have recovered, but whose mental or physical fitness seems to have
been gravely and permanently diminished.1887 All other prisoners of war have to be
repatriated at the end of active hostilities,1888 since at that point in time there is no reason to
further detain them.

1879
Article 28 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949). This is only the case for medical personnel that is exclusively assigned to
the care of wounded and sick; other military medical personnel will become prisoners of war: Article 29
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members in Armed
Forces in the Field (1949).
1880
Article 28 and 30 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick
Members in Armed Forces in the Field (1949).
1881
Article 26 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949).
1882
Article 32 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick Members
in Armed Forces in the Field (1949).
1883
Article 36 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (1949).
1884
J.S. PICTET, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, Commentary, Geneva, ICRC, 1960, 204.
1885
Article 37 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (1949).
1886
Article 21 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).
1887
Article 110 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).
1888
Article 118 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).

390
 Concerning civilians, citizens of an adversary present in the territory of the belligerent
and civilians living in occupied territory may be subjected to security measures, but the most
stringent ones – assigned residence and internment – may only exceptionally be employed and
should fulfil stringent requirements. First, aliens in the territory of an enemy State have in
principle the right to leave that territory unless their departure is contrary to the national
interests of the State.1889 Aliens who are not permitted to leave the territory or who are
retained have to be treated in principle as other aliens in time of peace,1890 although they may
be subjected to measures of control and security, the strictest of which are internment and
assigned residence.1891 In order to justify such measures the State must have serious reasons
to think that the aliens concerned by their activities, knowledge or qualifications, represent a
real threat to its present or future security;1892 the mere fact of having an enemy nationality is
not sufficient to base the decision of assigned residence or internment on.1893 Moreover,
assigned residence and internment are exceptional measures and cannot be taken
collectively.1894 Furthermore, any alien who has been interned or placed in assigned residence
is entitled to have the measure against him reconsidered as soon as possible by an appropriate
court or administrative board designated by the Detaining Power for that purpose. The time
elapsing should not be more than the time needed to make enquiries whether the interned
person is indeed a serious security threat.1895 If the internment or placing in assigned residence
is maintained, the court or administrative board must automatically and regularly – at least
twice a year – review the measure of assigned residence or internment with a view to amend
favourably the initial decision if circumstances permit.1896 In any event, if the aliens do not
anymore form a significant threat to the security of the Detaining Power, the measures of
assigned residence and internment have to be revoked. At the latest all restrictive measures
taken should be cancelled as soon as possible after the close of hostilities.1897

1889
Article 35 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1890
Article 38 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1891
Article 41 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1892
The International Criminal Tribunal for the Former Yugoslavia has held that there should be “serious and
legitimate reasons” that aliens would seriously endanger the security of the Detaining Power by means of
sabotage and espionage: Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16
November 1998, § 576; Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Appeals Chamber,
Judgment, 17 December 2004, § 73; Eritrea-Ethiopia Claims Commission, Civilians Claim, Eritrea’s Claim 15,
16, 23, 27-32, Partial Award, 17 December 2004, § 121, at www.pca.cpa.org; Id., Civilians Claim, Ethiopia’s
Claim 5, Partial Award, 17 December 2004, § 104, at www.pca-cpa.org.
1893
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 1134;
Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeals Chamber, Judgment, 20 February 2001, § 327; O.
UHLER and H. COURSIER, Geneva Convention Relative to the Protection of Civilian Persons in Time of War,
Commentary, Geneva, ICRC, 1958, 258; E. DAVID, Principes de droit des conflits armés, Brussels, Bruylant,
2008, 543.
1894
Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16 November 1998, § 583;
Inter-American Commission on Human Rights, Coard et al. v. United States of America, Case 10.951, Report
No. 109/99, OEA/Ser.L/V/II.106 Doc.6 rev. (1999), § 53 (“on a case by case basis”).
1895
Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeals Chamber, Judgment, 20 February 2001, § 328;
Inter-American Commission on Human Rights, Coard et al. v. United States of America, Case 10.951, Report
No. 109/99, OEA/Ser.L/V/II.106 Doc.6 rev. (1999), §§ 57-58; E. DAVID, Principes de droit des conflits armés,
Brussels, Bruylant, 2008, 543.
1896
Article 43 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1897
Article 46 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).

391
 In occupied territory, the Occupying Power is entitled to take security measures against
individuals.1898 The most stringent measures of assigned residence and internment can only be
imposed when imperative reasons of security so demand. Article 78 is in this respect stricter
than Article 42, since “imperative” reasons, instead of “absolute” reasons are required. There
must be clear and convincing evidence that the person will likely present a real danger to the
security of the Occupying Power.1899 Decisions regarding such assigned residence or
internment should be made according to a regular procedure to be established by the
occupying power. In any event, this procedure must include the right to be heard and a right to
appeal and appeals must be decided with the least possible delay.1900 In the event of the
decision being upheld, it will be subject to periodical review, if possible every six months, by
a competent body set up by the occupying power.
All persons that are not protected by any of the Conventions and that are arrested,
detained or interned for actions related to the armed conflict have the fundamental guarantee
that they will be promptly informed of the reasons why these measures have been taken.
Persons that are arrested and detained for criminal infractions may be kept in detention for the
duration of the criminal proceedings. In all other cases they have to be released as soon as
possible and in any event when the circumstances justifying the arrest, detention or
internment have ceased to exist.1901
In non-international armed conflicts the right to be free from arbitrary deprivation of
liberty is not regulated. Common Article 3 does not refer to internment or deprivation of
liberty. Articles 5 and 6 of Additional Protocol (II) make references to the possibility of
internment and set out the treatment due to detainees, but are silent as to procedural remedies
of detainees. Nonetheless, detainees that are suspected of crimes have the right to be promptly
informed of the charges1902 and this will indicate the ground for their detention. Furthermore,
customary international law has filled in the void. Consequently, equally in non-international
armed conflicts, civilians may not be arbitrarily deprived of their liberty.1903 They should

1898
Article 78 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1899
Supreme Court of Israel sitting as the High Court of Justice, Ajuri v. IDF Commander, HCJ7015/02 and
HCJ 7019/02, 3 September 2002, § 25, at www.court.gov.il; if a person has committed acts against the security
of the occupying power, but is, taking into account all circumstances, not anymore presenting a danger,
assigned residence and a fortiori internment are not permitted. Ibid. § 24 and § 29; aiding in the preparation of
an explosive belt and acting as a look-out can warrant assigned residence or internment: ibid, §§ 31-32, § 33
and § 36. Providing a family member wanted by the occupying power for armed activities with food and
clothing and lending a car without knowing the purpose for which the car is used, does not suffice the threshold
for assigned residence: ibid., §§ 37-39.
1900
Inter-American Commission on Human Rights, Coard et al. v. United States of America, Case 10.951,
Report No. 109/99, OEA/Ser.L/V/II.106 Doc.6 rev. (1999), § 54 and §§ 57-58.
1901
Article 75 (3) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977). At the moment of adoption it was not
established that Article 75 would apply to one’s own nationals: Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN
(eds.), Commentaire des Protocols additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949,
Geneva, Nijhoff, 1986, Nos. 3017-3018. Nonetheless, Article 75 has been held to apply to a belligerents own
civilians: Eritrea-Ethiopia Claims Commission, Civilians Claims, Eritrea Claims 15, 16, 23 & 27-32, Partial
Award, 17 December 2004, § 30, at www.pca-cpa.org.
1902
Article 6 (2) Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of Non-International Armed Conflicts (1977).
1903
J.-M. HENCKAERTS and L. DOSWALD-BECK, Customary International Humanitarian Law, Volume I: Rules,
Cambridge, Cambridge University Press, 2005, 344.

392
promptly be informed of the reasons of their detention and should be able to challenge the
lawfulness of their detention.1904

§6. Right to a fair trial

420. The right to a fair trial is extensively regulated in human rights law that has set out the
minimum conditions of the right to a fair trial,1905 which is guaranteed in criminal trials and in
the determination of rights and obligations in suits at law.1906 The right to a fair trial mainly
focuses on procedural guarantees, but it also contains substantive guarantees. First, everyone
should be equal before the courts and tribunals. This entails that every person within the
jurisdiction of a State should have access to the courts, that she is not frustrated in her
attempts to seize a court and that no discrimination is possible in granting access to courts.1907
It furthermore implies that indigent persons should receive legal assistance,1908 that the

1904
Ibid., 349-350. The right to petition the courts on the lawfulness of the detention has been found to be non-
derogable: supra, note 1876.
1905
Articles 14-15 International Covenant on Civil and Political Rights (1966); Article 7 African Charter of
Human and Peoples’ Rights (1981); Articles 8-10 American Convention on Human Rights (1969); Articles 12-
13, Articles 15-16 and Article 19 Arab Charter on Human Rights (2004); Articles 6-7 European Convention for
the Protection of Human Rights and Fundamental Freedoms (1950); Articles 10-11 Universal Declaration of
Human Rights, UN General Assembly Resolution 217A (III).
1906
The notion of “suit at law” (French: droits et obligations de caractère civil) in Article 14 refers to the nature
of the rights and obligations and not to the capacity of the litigants. It includes judicial proceedings dealing with
private law, equivalent issues of administrative law, and other procedures. When national law does not grant an
entitlement there cannot be a determination of rights and obligations in a suit at law and thus no access to a
court or tribunal: Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before
Courts and Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, §§ 16-17. Article 7 (1)(a) African
Convention simply provides that everyone has the right to have his cause heard when a fundamental right is
infringed; the African Commission on Human and Peoples’ Rights has equally held that the right to a fair trial
applies when there is a determination of rights and duties: Resolution on the Right to Recourse and Fair Trial,
ACHPR/Res4.(XI)92 (1992). Article 8 (1) American Convention on Human Rights requires a fair trial in
criminal cases and when rights and obligations of a civil, labour, fiscal, or any other nature are in dispute.
Article 6 (1) European Convention for the Protection of Human Rights and Fundamental Freedoms lays down
the right to a fair trial for the determination of civil rights and obligations or of any criminal charges. A fair trial
for the determination of civil rights and obligations requires that a right exists under national law: Roche v. the
United Kingdom, Application No. 32555/96, Merits, Judgment, 19 October 2005, Report of Judgments and
Decisions 2005-X, § 117; if national law provides for a right, the right (or obligation) will be deemed civil if the
outcome of the proceedings is decisive for private law rights (or obligations): H. v. France, Application No.
10073/82, Merits and Just Satisfaction, Judgment, 24 October 1989, Series A, No. 162-A, § 47.
1907
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, § 9. This aspect of the right to a fair trial is not absolute:
European Court of Human Rights, Golder v. the United Kingdom, Application No. 4451/70, Merits and Just
Satisfaction, Judgment, 21 February 1975, Series A, No. 18, § 38. Immunities for instance may limit this right:
European Court of Human Rights, Al-Adsani v. the United Kingdom, Application No. 35763/97, Merits,
Judgment, 21 November 2001, Reports of Judgments and Decisions 2001-XI, §§ 66-67; Id., A. v. the United
Kingdom, Application No. 35373/97, Merits, Judgment, 17 December 2002, Reports of Judgments and
Decisions 2002-X, § 84. Nonetheless, the European Court has held that immunities to international
organizations may violate Article 6 if there are no reasonable alternatives: Waite and Kennedy v. Germany,
Application No. 26083/94, Merits, Judgment, 18 February 1999, Reports of Judgments and Decisions 1999-I,
§§ 67-68.
1908
Ibid., § 10. Under the European Convention there is not a right to legal assistance in civil cases, only when
legal representation is compulsory or when the complexity of the case justifies legal representation: Airey v.

393
different parties have the same procedural rights (equality of arms), and that similar cases are
brought before the same judicial instances.1909 Second, the right to a fair trial includes the
presumption of innocence that regards the accused as innocent unless the prosecutor proves
his guilt. It implies that the accused is not under a duty to prove he did not commit the crime,
but that the burden of proof lies with the prosecutor.1910 A third substantive guarantee is the
principle of non bis in idem: an accused may not be retried for the same conduct if he has
already been found guilty or has been acquitted. The principle of non bis in idem does not
exclude a retrial after a higher court has quashed the verdict of a lower court, a subsequent
conviction for the same conduct in another country, or a retrial in exceptional
circumstances.1911 Finally, in cases of miscarriage of justice compensation should be awarded,
unless the miscarriage is the result of the fault of the accused.1912
In addition, the right to a fair trial may also be extended to include other rights that have
an impact on the substantive fairness of a trial. A criminal trial would not be fair if it does not
respect the principle of individual criminal responsibility;1913 it will also lack substantive
fairness if the principle of non-retroactivity was not respected, i.e. that the accused was
convicted for conduct that was not criminalized at the moment it was performed or to a
punishment that is more severe than the punishment at the moment that the crime was
committed.1914

Ireland, Application No. 6289/73, Merits, Judgment, 9 October 1979, Series A, No. 32, § 26; Aerts v. Belgium,
Application No. 25357/94, Merits and Just Satisfaction, Judgment, 30 July 1998, Reports of Judgments and
Decisions 1998-V, §§ 59-60.
1909
Ibid., § 13. Due to their age juveniles enjoy special protection and may be brought before specialized courts:
Article 14 (4) International Covenant on Civil and Political Rights (1966); Article 40 (1) and (3) Convention on
the Rights of the Child (1989); Article 17 African Charter on the Right and Welfare of the Child (1999); Article
17 Arab Charter of Human Rights (2004). The European Court of Human Rights has held that in order to be fair
a trial should take into account the age, the maturity and the intellectual and emotional capabilities of juveniles:
T. v. the United Kingdom, Application No. 24724/94, Merits and Just Satisfaction, Judgment, 16 December
1999, Reports of Judgments and Decisions 1999-IX, § 84; V. v. the United Kingdom, Application No. 24888/94,
Merits and Just Satisfaction, Judgment, 16 December 1999, Reports of Judgments and Decisions 1999-IX, § 84.
1910
Ibid., § 30; European Court of Human Rights, Barberà, Messegué and Jabargo v. Spain, Application No.
10590/83, Merits, Judgment, 6 December 1988, Series A, No. 146, § 77.
1911
Article 14 (7) International Covenant on Civil and Political Rights (1966); Article 8 (4) American
Convention on Human Rights (1969); Article 19 (1) Arab Charter on Human Rights (2004); Article 4 Protocol
No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (1984); Human Rights
Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and Tribunals and to Fair
Trial), UN Doc. CCPR/C/GC/32, §§ 54-55.
1912
Article 14 (6) International Covenant on Civil and Political Rights (1966); Article 10 American Convention
on Human Rights (1969); Article 19 (2) Arab Charter on Human Rights (2004); Article 4 Protocol No. 7 to the
Convention for the Protection of Human Rights and Fundamental Freedoms (1984); Human Rights Committee,
General Comment No. 32, Article 14 (Right to Equality before Courts and Tribunals and to Fair Trial), UN Doc.
CCPR/C/GC/32, §§ 52-53.
1913
Article 7 (2) African Charter on Human and Peoples’ Rights (1981); Inter-American Commission on
Human Rights, “Report on Terrorism and Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), §
222 and § 227.
1914
The principle of non-retroactivity is sometimes laid down in a separate provision than the right to a fair trial:
Article 15 (1) International Covenant on Civil and Political Rights (1966); Article 9 Inter-American Convention
on Human Rights (1969); Article 15 Arab Charter on Human Rights (2004); Article 7 (1) European Convention
for the Protection of Human Rights and Fundamental Freedoms (1950). Sometimes it is merged with the right to
fair trial sensu stricto: Article 7 (2) African Charter on Human and Peoples’ Rights (1981); Article 11 (2)
Universal Declaration of Human Rights, UN General Assembly Resolution 217A (III). In any event, it is

394
421. Concerning procedural guarantees, everyone has the absolute right to a fair and public
hearing by a competent, independent and impartial tribunal established by law.1915 Judicial
independence implies that judges do not answer to the executive or the legislature and are
appointed, promoted, transferred, suspended or dismissed through a procedure that is not
prone to political interference.1916 A tribunal is impartial if its members are not personally
biased or prejudiced against one of the parties or do not favour one of the parties; it must
equally appears impartial to any reasonable observer.1917 Military and extraordinary courts
and tribunals are not necessarily excluded as long as they respect the guarantees for a fair
trial. In any event, trial of civilians by such courts should be exceptional and due to special
circumstances.1918 Furthermore, a fair trial by a competent, independent and impartial tribunal
implies procedural fairness, equality of arms, absence of pressure or influence,
expeditiousness of the procedure and a trial held in public.1919 Judicial procedures in cameram

considered to be part of the right to a fair trial: Inter-American Commission on Human Rights, “Report on
Terrorism and Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), § 218.
1915
Article 14 (1) International Covenant on Civil and Political Rights (1966); Article 7 (1) African Charter of
Human and Peoples’ Rights (1981); African Commission of Human and Peoples’ Rights, Resolution on the
Right to Recourse and Fair Trial, ACHPR/Res4.(XI)92 (1992); Article 8 (1) American Convention on Human
Rights (1969); Article 12 and Article 13 (1) Arab Charter on Human Rights (2004); Article 6 (1) European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950). A court is established by
law if it is in accordance with the rule of law, i.e. when it fulfils all the necessary guarantees of fairness; a court
established by the executive would not necessarily be contrary to the right to a fair trial if these guarantees are
provided: Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutary
Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, § 45.
1916
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, § 19; Inter-American Commission on Human Rights,
“Report on Terrorism and Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), § 229; African
Commission on Human and Peoples’ Rights, International Pen and Others (on behalf of Saro-Wiwa) v. Nigeria,
Communication Nos. 137/94, 139/94, 154/96 and 161/97, African Human Rights Law Reports 2000, 222, § 86;
Id., Lawyers for Human Rights v. Swaziland, Communication No. 251/2002, African Human Rights Law
Reports 2005, 75, §§ 54-56; European Court of Human Rights, Campbell and Fell v. the United Kingdom,
Application Nos.7819/77 and 7878/77, Merits and Just Satisfaction, Judgment, 28 May 1984, Series A, No. 80,
§ 78; Id., Findlay v. The United Kingdom, Merits and Just Satisfaction, Judgment, 25 February 1997, Reports of
Judgments and Decisions 1997-I, § 73; the European Court has also added that the tribunal must be independent
from the parties: Ringeisen v. Austria, Application No. 2614/65, Merits, Judgment, 16 July 1971, Series A, No.
13, § 95.
1917
Ibid., § 21; Human Rights Committee, Karttunen v. Finland, Communication No. 387/1989, UN Doc.
CCPR/C/46/D/387/1989, § 7.2; Inter-American Commission on Human Rights, “Report on Terrorism and
Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), § 229; European Court of Human Rights,
Piersack v. Belgium, Application No. 8692/79, Merits, Judgment, 1 October 1982, Series A, No. 53, § 30.
1918
Ibid., § 22; The Inter-American Commission on Human Rights and the African Commission on Human and
Peoples’ Rights do not consider it lawful to try civilians before military courts, “Report on Terrorism and
Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), § 232; African Commission on Human and
Peoples’ Rights, Dakar Declaration on the Right to a Fair Trial in Africa, Annex to Resolution on the Right to
Fair Trial and Legal Aid in Africa, ACHPR/Res.41(XXVI)99 (1999). The presence of a military judge will cast
doubt on the independence or impartiality of the tribunal, making it unlikely that the trial of civilians before
military tribunals would satisfy the European Convention: European Court on Human Rights, Incal v. Turkey,
Application No. 62678/93, Merits and Just Satisfaction, Judgment, 8 June 1998, Reports of Judgments and
Decisions 1998-IV, §§ 70-73; Id., Öcalan v. Turkey, Application No. 46221/99, Merits and Just Satisfaction,
Judgment, 12 May 2005, Reports of Judgments and Decisions 2005-IV, §§ 116-118.
1919
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, § 25 and § 27.

395
are permitted in exceptional circumstances, but the judgment including the essential findings,
evidence and motivation should be read in public, except when the case concerns juveniles,
matrimonial issues or guardianship over children.1920
Persons charged with criminal offences have more specific procedural guarantees.1921
First, they must be informed promptly and in detail in a language which they understand of
the nature and cause of the charge against them. Second, they must have adequate time and
facilities for the preparation of the defence and to communicate with counsel of their own
choosing. This implies that the accused has access to all the evidence to which the prosecutor
relies.1922 Furthermore, the accused must have prompt access to his counsel and discuss the
defence in private.1923 Third, the accused must be tried without undue delay, taking into
account the complexity of the case, the behaviour of the accused and the actions of the
authorities.1924 Fourth, the accused have the right to be present at their trial, to defend
themselves or through counsel of their own choosing and to be informed of this right, and to
have legal assistance assigned when the interests of justice so require, without payment if they
cannot afford legal assistance. Proceedings may be held in the absence of the accused if he
has been duly informed but declines to exercise the right.1925 Furthermore, although the
accused can choose to be represented by a lawyer or not, the interests of justice may require
the appointment of counsel. Fifth, an accused has the right to examine or have examined the
witnesses against him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him in order to guarantee equality of arms and
an effective defence. Sixth, accused must have free assistance of an interpreter if they do not
understand the language used in court. Seventh, the accused may not be compelled to testify

1920
Article 14 (1) International Covenant on Civil and Political Rights (1966); Article 8 (5) American
Convention on Human Rights (1969); Article 13 (2) Arab Charter on Human Rights (2004); Article 6 (1)
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The African
Charter does not contain the requirement of a public trial, yet this is implicitly included: African Commission
on Human and Peoples’ Rights, Media Rights Agenda v. Nigeria, Communication No. 224/98, African Human
Rights Law Reports 2000, 268, §§ 51-52.
1921
Article 14 (3) International Covenant on Civil and Political Rights (1966); Article 7 (1) African Charter of
Human and Peoples’ Rights (1981); African Commission on Human and Peoples’ Rights, Resolution on the
Right to Recourse and Fair Trial, ACHPR/Res4.(XI)92 (1992); Article 8 (2) American Convention on Human
Rights (1969); Article 16 Arab Charter on Human Rights (2004); Article 6 (3) European Convention for the
Protection of Human Rights and Fundamental Freedoms (1950).
1922
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, § 33; European Commission of Human Rights, Jespers
v. Belgium, Application No. 8403/78, Report of 14 December 1981, Decisions and Reports, Vol. 27, § 59;
European Court of Human Rights, Barberà, Messegué and Jabargo v. Spain, Application No. 10590/83, Merits,
Judgment, 6 December 1988, Series A, No. 146, § 78.
1923
Ibid., § 34; Human Rights Committee, Khomidova v. Tajikistan, Communication No. 1117/2002, UN Doc.
CCPR/C/81/D/1117/2002, § 6.4; Inter-American Commission on Human Rights, “Report on Terrorism and
Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), § 237; European Court of Human Rights,
Öcalan v. Turkey, Application No. 46221/99, Merits and Just Satisfaction, Judgment, 12 May 2005, Reports of
Judgments and Decisions 2005-IV, § 133.
1924
Ibid., § 35; Inter-American Commission on Human Rights, “Report on Terrorism and Human Rights”,
OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), § 234; Inter-American Court, Genie-Lacayo v. Nicaragua,
Merits, Reparation and Costs, Judgment, 29 January 1997, Series C, No. 30, § 77; European Court of Human
Rights, Buchholz v. Germany, Application No. 7759/77, Merits, Judgment, 6 May 1981, Series A, No. 42, § 49.
1925
Ibid., § 31 and § 36; Human Rights Committee, Mbenge v. Zaire, Communication No. 16/1977, UN Doc.
A/38/40 Supp. No. 40, § 14.1; European Court of Human Rights, Colozza v. Italy, Applicaton No. 9024/80,
Merits and Just Satisfaction, Judgment, 12 February 1985, Series A, No. 89, § 28.

396
against themselves or to confess guilt, either by direct or indirect physical or undue
psychological pressure.1926 Statements and confessions obtained through force may not be
introduced as evidence.1927 Finally, anyone convicted of a crime has the right to have the
conviction and sentence reviewed by a higher court,1928 although States have made
reservations to this guarantee.1929 If national law provides for appeal, the accused may not be
hindered in exercising this possibility. The right of review does not require a full retrial, but
an examination of the evidence, the law, the conviction and sentence.1930

422. The right to a fair trial is not mentioned in State practice as a peremptory norm.1931
Nonetheless, the right to a fair trial has been regarded a peremptory norm in international case
law.1932 Furthermore, the right to a fair trial or certain elements thereof are linked to other
human rights that are considered peremptory. The imposition of the death penalty after an
unfair trial violates the right to life.1933 The prohibition to force an accused to testify against
himself or to confess protects an accused against inhumane treatment and torture.1934 Persons

1926
This is not explicitly mentioned in Article 6 European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950), but is implied: European Court of Human Rights, Saunders v. the United
Kingdom, Application No. 19187/91, Merits and Just Satisfaction, Judgment, 17 December 1996, Reports of
Judgments and Decisions 1996-VI, §§ 68-69.
1927
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, § 41; Article 8 (3) American Convention on Human
Rights (1969); Article 15 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984).
1928
Under the International Convention of Civil and Political Rights, the right of review by a higher court is also
applicable if the accused was acquitted before the lower court and is subsequently convicted on appeal: Human
Rights Committee, Gomariz Valera v. Spain, Communication No. 1095/2002, UN Doc. CPR/C/84/D/1095/2002,
§ 7.1. Under the European Convention there is an exception to the right of review in such instances: Article 2 (2)
Protocol No. 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms (1984).
1929
Reservation of Austria, Belgium, Denmark, France, Germany, Luxemburg, Monaco, the Netherlands,
Norway, Trinidad and Tobago, at http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
4&chapter=4&lang=en. These reservations were held to be valid: Human Rights Committee, Fanali v. Italy,
Communication No. 75/1980, UN Doc. CCPR/C/OP/2, § 11.6
1930
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), UN Doc. CCPR/C/GC/32, § 48.
1931
But see concerning the principle of individual criminal responsibility and the prohibition of collective
punishments: Tribunal fédéral, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November 2007, §
7.3
1932
Prosecutor v. Tadić, Case No. IT-94-1-A-R77, Allegations of Contempt against Prior Counsel Milan Vujin,
Appeals Chamber, Judgment, 27 February 2001, 3; Special Court for Sierra Leone, Prosecutor v. Norman et al.,
Case No. SCSL 2003-08-PT-108, Decision on the Application of a Stay of Proceedings and Denial of Right to
Appeal, Appeals Chamber, 4 November 2003, § 19; European Court of First Instance, Yusuf and Al Barakaat
International Foundation v. Council and Commission, Case T-306/01, Judgment, 21 September 2005,
European Court Reports 2005, II-3643, § 342; Id., Kadi v. Council and Commission, Case T-315/01, Judgment,
21 September 2005, European Court Reports 2005, II-3739-3740, §§ 286-288.
1933
Human Rights Committee, Reid v. Jamaica, Communication No. 250/1987, UN Doc.
CCPR/C/39/D/250/1987 § 11.5; Id., Mbenge v. Zaire, Communication No. 16/1977, UN Doc. CCPR/C/OP/2,
17; Inter-American Commission of Human Rights, Graham v. the United States, Case 11.193, Report No.
97/03, OEA/Ser./L/V/II.114 Doc. 70 rev. 1 (2003), § 49; Inter-American Court of Human Rights, The Right to
Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory
Opinion OC-16/99, 1 October 1999, Series A, No. 16, § 137.
1934
Human Rights Committee, Ruzmetov v. Uzbekistan, Communication No. 915/2000, UN Doc.
CCPR/C/87/D/914/2000, § 8.2 and § 8.3.

397
deprived of their liberty must have access to a court in order to judge the legality of their
detention, failure of which would result in an arbitrary deprivation of liberty; there will be an
arbitrary deprivation of liberty if a person who is deprived of her liberty after being charged
with a crime, is not subsequently brought before a court.1935 In addition, the right is a
fundamental cornerstone of the rule of law,1936 which is an essential part of any
constitutionalism. Constitutionalism implies that the exercise of power is restricted by law
and that individuals have certain constitutional rights that protect them from abuse by the
executive or legislative power. If those rights could not be guaranteed before courts through a
fair trial, the constitutional protection of individual’s rights and the limitation of the exercise
of political power are not effective and might be endangered. Hence, the right to a fair trial
has a strong constitutional dimension. Nevertheless, certain elements of the right may not yet
have peremptory status. The right to have a conviction reviewed by a higher court has been
subjected to valid reservations and is thus not part of the peremptory right to a fair trial.1937 In
any event, the core of the right to fair trial in criminal cases belongs to jus cogens.

423. The right to a fair trial is derogable in times of public emergencies,1938 which might cast
doubt on its peremptory status. Nevertheless, the principle of non-retroactivity is a non-
derogable right.1939 In addition, the right is not entirely derogable, since this would imply that
States could organize manifestly unfair trials. Rather, the right may be restricted as far as
strictly required by the exigencies of the situation.1940 In this respect, what is a fair trial is not
completely regulated by human rights law that only lays down minimum guarantees. Thus,
the right to a fair trial will include additional guarantees that must be provided in peace time,
but may be curtailed in public emergencies. The minimum guarantees must be retained,

1935
Human Rights Committee, Evans v. Trinidad and Tobago, Communication No. 908/2000, UN Doc.
CCPR/C/77/D/908/2000, § 6.2; Id., Hendriks v. Guayana, Communication No. 838/1998, UN Doc.
CCPR/C/76/D/838/1998, § 6.3; Inter-American Court on Human Rights, Suárez Rosero v. Ecuador, Merits,
Judgment, 12 November 1997, Series C, No. 35, § 77.
1936
Human Rights Committee, General Comment No. 32, Article 14 (Right to Equality before Courts and
Tribunals and to Fair Trial), § 2; Dakar Declaration on the Right to a Fair Trial in Africa, Annex to Resolution
on the Right to Fair Trial and Legal Aid in Africa, ACHPR/Res.41(XXVI)99 (1999); European Court of Human
Rights, Golder v. the United Kingdom, Application No. 4451/70, Merits and Just Satisfaction, Judgment, 21
February 1975, Series A, No. 18, §§ 34-36; L. CHENWI, “Fair Trial Rights and Their Relation to the Death
Penalty in Africa”, International & Comparative Law Quarterly 2006, 609.
1937
Supra, note 1929. A complete reservation to the right would however not be compatible with the object and
purpose of the Covenant: Human Rights Committee, General Comment No. 24, Issues relating to Reservations
Made upon Ratification or Accession to the Covenant or Optional Protocols Thereto, or in Relation to
Declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6, § 8.
1938
The right is however not derogable under the African Charter of Human and Peoples’ Rights (1981); Article
4 Arab Charter on Human Rights (2004) prescribes that the right to fair trial is only partially derogable.
1939
Article 4 (2) and Article 15 International Covenant on Civil and Political Rights (1966); Article 9 and
Article 27 (2) American Convention on Human Rights (1969); Article 4 (2) and Article 15 Arab Charter on
Human Rights (2004); Article 7 and Article 15 (2) European Convention for the Protection of Human Rights
and Fundamental Freedoms (1950).
1940
Human Rights Committee, General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11, § 11; Inter-American Commission on Human Rights, “Report on Terrorism and
Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr. (2002), §§ 247-249. The Inter-American Court has
held that emergency situations do not justify the abolition or restriction of the rule of law and that the essential
judicial guarantees necessary to protect non-derogable rights remain in force: Habeas Corpus in Emergency
Situations (Arts. 27 (2), 25 (1) and 7 (6) American Convention on Human Rights), Advisory Opinion, 30
January 1987, Series A, No. 8, § 24 and §§ 27-29.

398
although certain of them may be restricted.1941 In any event, measures restricting the right to a
fair trial may not go against other obligations under international law. In this respect,
international humanitarian law provides for the right in international and non-international
armed conflicts.1942 Denying the right to a fair trial is equally a war crime.1943

424. The Geneva Conventions extensively regulate the fair trial guarantees of prisoners of
war, which are also accorded to medical personnel covered by Geneva Convention (I) and
(II), and protected civilians. Nonetheless, Article 75 (4) has introduced minimum standards
applicable to all persons affected by an international armed conflict, significantly improving
the guarantees of a fair trial laid down in the Geneva Conventions.1944 It was introduced to
prevent derogations from Article 14 International Covenant on Civil and Political Rights1945
and reflects customary international law.1946 Article 75 (4) establishes that nobody may be
tried and convicted but by a tribunal or court that is “impartial and regularly constituted
respecting generally recognized principles of regular judicial procedure.” It then provides for
a non-exhaustive list of guarantees that belong to these principles. In this list the same
substantial guarantees for a fair trial – individual criminal responsibility, the principle non-
retroactivity of the crime or the heavier punishment, the presumption of innocence, and the
principle of non bis in idem – as human rights law can be found.1947 Concerning procedural

1941
For instance, limiting the right to a trial held in public; restricting the right to have witnesses examined by
the defence by allowing anonymous witnesses; permitting a longer pre-trial detention than would be allowed
during normal situations: Inter-American Commission on Human Rights, “Report on Terrorism and Human
Rights”, OEA/Ser.L/V/II.116,Doc. 5 rev. 1 corr. (2002), § 262. Considering that States have made valid
reservations to the right to appeal, such right might be subject to derogation.
1942
Article 49, § 4 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick
Members in Armed Forces in the Field (1949); Article 50, § 4 Geneva Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949); Articles 102-108
Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 5 and Articles 66-75
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949); Common Article
3 Geneva Conventions (1949); Article 75 (4) Protocol (I) Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts (1977); Article 6 (2) Protocol
(II) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-international Armed Conflicts (1977).
1943
Article 130 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 147
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949); Article 85 (4)(e)
Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (1977); Article 2 (f) Statute of the International Criminal Tribunal for the
Former Yugoslavia (1993); Article 4 (g) Statue of the International Criminal Tribunal for Rwanda (1994);
Article 8 (2)(a)(vi) and Article 8(2)(c)(iv) Rome Statute of the International Criminal Court (1998); Article 3(g)
Statute of the Special Court for Sierra Leone (2002); Article 6 Law on the Establishment of Extraordinary
Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of
Democratic Kampuchea, As Amended (2004).
1944
For instance, the Geneva Conventions do not expressly provide in the presumption of innocence.
1945
Y. ARAI-TAKAHASHI, “Fair Trial Guarantees in Occupied Territory – The Interplay between International
Humanitarian Law and Human Rights Law”, in R. ARNOLD and N. QUÉNIVET (eds.), International
Humanitarian Law and Human Rights Law, Towards a New Merger in International Law, Leiden, Nijhoff,
2008, 451.
1946
J.-M. HENCKAERTS and L. DOSWALD-BECK, Custumary International Humanitarian Law, Volume I: Rules,
Cambridge, Cambridge University Press, 2005, 352.
1947
Article 75 (4) Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (1977); see also: Article 50 Regulations Respecting the
Laws and Customs of War on Land, Annex to the Hague Convention (IV) Respecting the Laws and Customs of

399
guarantees, Article 75 (4) lays down that an accused must be brought before an impartial and
regularly constituted court, which implies that the court is independent and established
according to the law already in force.1948 In this respect, Geneva Convention (III) specifies
that prisoners of war can only be brought before an independent and impartial tribunal that
has the competence to judge the servicemen of the detaining power. Ordinarily, this would be
a military court, but civilian courts are not prohibited provided they have competence over
offences of members of the armed forces.1949 In occupied territories civilians that are accused
of crimes against the occupying power may only be brought before “properly constituted” and
“non-political military courts” sitting in the occupied territory.1950 Pursuant to Article 75
(4)(a) the accused should be promptly informed of the particulars of the offence and be
afforded all necessary rights and means of defence. Unlike Geneva Convention (III) and
(IV),1951 it does not specify that the information of the charge should be in a language the
accused understand, but this is implicitly included in the necessary rights and means of
defence.1952 Geneva Convention (III) adds that besides the accused, the prisoners’
representative,1953 the Protecting Power need to be notified of the charges together with the
identity of the prisoner, the place of detention, and the court that will hear the case at least
three weeks before the opening of the trial.1954 A similar protection is offered in criminal
proceedings against inhabitants of occupied territories.1955 Article 75 (4)(a) does not specify
the necessary rights and means of defence, but inspiration can be found in Geneva Convention
(III) and (IV). Those conventions require that an accused has the right to defend himself or be

War on Land (1907); Article 86, Article 87, § 3, Article 99, § 1 Geneva Convention (III) Relative to the
Treatment of Prisoners of War (1949); Article 33, § 1, Article 65, Article 67 and Article 117, § 3 Geneva
Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1948
J.-M. HENCKAERTS and L. DOSWALD-BECK, Custumary International Humanitarian Law, Volume I: Rules,
Cambridge, Cambridge University Press, 2005, 355.
1949
Article 84 and Article 102 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).
1950
Article 66 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949); as
indicated supra, No. 421 this requirement may conflict with decisions of regional human rights bodies that
civilians should in principle not be brought before military courts. Nonetheless, the Human Rights Committee
has stated that military courts trying civilians are as such not prohibited under human rights law if they respect
fair trial standards. Moreover, a State can derogate from this aspect of the right to a fair trial since Article 66
obliges States to bring civilians before a military court. Furthermore, it might not be feasible to install civil
courts in an occupied territory and an accused may not be transferred to the territory of the Occupying Power
pursuant to Article 49 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949). Hence, if the right to be tried in one’s presence is to be respected, there is only the alternative to
prosecute the accused before military courts sitting in the occupied territory.
1951
Article 105, § 4 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 71, §
2 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1952
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Commentaire des Protocols additionnels du 8 juin
1977 aux Conventions de Genève du 12 août 1949, Geneva, Nijhoff, 1986, No. 3096.
1953
Prisoners’ representatives are prisoners of war that are elected by other prisoners to represent them before
the Detaining Power, the Protecting Powers, the International Committee of the Red Cross and other relevant
organizations; there general duty is to advance the well-being of the prisoners of war: Articles 79-80 Geneva
Convention (III) Relative to the Treatment of Prisoners of War (1949). In certain cases prisoners’
representatives had set up legal services to assist prisoners of war, which justified the requirement to inform
them: J. DE PREUX, Geneva Convention relative to the Treatment of Prisoners of War, Commentary, Geneva,
ICRC, 1960, 484.
1954
Article 104 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).
1955
Article 71, §§ 2-3 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949).

400
assisted by a competent lawyer of one’s own choice or if he fails to do so to have a qualified
counsel appointed to him freely if the interests of justice so require.1956 Furthermore, Geneva
Convention (III) and (IV) lay down the right to sufficient time and facilities to prepare the
defence and the right to freely communicate with counsel in private.1957 This would also
include the assistance of an interpreter if the accused does not understand the language of the
procedure.1958 Article 75 (4)(e) establishes that an accused has the right to be tried in his
presence, a right which is not present in the Geneva Conventions. Article 75 (4)(f) lays down
the prohibition to force an accused to testify against himself or to confess guilt.1959 Article 75
(4)(g) provides for the right to examine, or have examined, witnesses against the accused and
the right to call witnesses for the defence, which confirms and elucidates this guarantee in
Geneva Convention (III) and (IV).1960 Article 75 (4)(i) stipulates that the judgment has to be
pronounced publicly,1961 although the trial itself may be in cameram. Geneva Convention (III)
and (IV) additionally provide that during the trial a representative of the Protecting Power
must be present, unless exceptionally because of State security the trial is held in
cameram.1962 They do not specify that the judgment must be pronounced publicly, but since
Article 75 (4) lays down minimum guarantees, it may be concluded that judgments of trials of
prisoners of wars and inhabitants of occupied territories must be pronounced publicly. Finally,
like Geneva Convention (III) and (IV) it establishes that a convicted person must be informed
and advised of the available judicial and other remedies and of the time-limits.1963 It does not
lay down the right to appeal and considering the reservations made by States under the
International Covenant on Civil and Political Rights it may be doubted that the right to appeal
proper is a minimum requirement of the right to a fair trial.1964 Article 75 (4) does not
establish the right to be tried without undue delay. Nonetheless, this right is provided for in

1956
Article 99, § 3 and Article 105, § 2 Geneva Convention (III) Relative to the Treatment of Prisoners of War
(1949); Article 72, § 1 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949).
1957
Article 105, § 3 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 72, §
1 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1958
Article 105, § 1 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 72, §
3 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1959
See also: Article 99, § 2 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949).
1960
Geneva Convention (III) and (IV) only explicitly provide for the calling and conferring with witnesses of
the defence: Article 105, § 1 and § 3 Geneva Convention (III) Relative to the Treatment of Prisoners of War
(1949); Article 72, § 1 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949).
1961
An exception is made when the pronouncement of the judgment in public would be disadvantageous for the
defendant, for instance in case of a juvenile: Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.),
Commentaire des Protocols additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949, Geneva,
Nijhoff, 1986, No. 3118.
1962
Article 105, § 5 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 74, §
1 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1963
Article 106 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 73
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1964
Contra: J.-M. HENCKAERTS and L. DOSWALD-BECK, Customary International Humanitarian Law, Volume
I: Rules, Cambridge, Cambridge University Press, 2005, 369-370; but see the critique on this assertion: Y.
ARAI-TAKAHASHI, “Fair Trial Guarantees in Occupied Territory – The Interplay between International
Humanitarian Law and Human Rights Law”, in R. ARNOLD and N. QUÉNIVET (eds.), International
Humanitarian Law and Human Rights Law, Towards a New Merger in International Law, Leiden, Nijhoff,
2008, 471-472.

401
Geneva Convention (III) and (IV) and could be considered a “generally recognized principles
of regular judicial procedure”, 1965 thereby falling within the scope of Article 75 (4).

425. It may be argued that the right to a fair trial as protected in international armed conflicts
cannot be used to determine the minimum guarantees of a fair trial during public emergencies
since the guarantees are owed to persons that are in the hands of the enemy and therefore
deserve extra protection.1966 However, this argument ignores that Article 75 Protocol (I) is not
limited to aliens but equally applies to the belligerents own nationals. Moreover, the right to a
fair trial is guaranteed in a similar manner in non-international armed conflicts. Common
Article 3 lays down that convictions may only occur after a trial by a regularly constituted
court that offers all the judicial guarantees “which are recognized as indispensable by
civilized peoples”. Article 6 (2) and (3) specify this general requirement by establishing
guarantees that can also be found in Article 75 (4) Protocol (I). Courts have to be independent
and impartial; the accused needs to be informed of the charges and has all the necessary rights
and means for the defence; the principles of individual criminal responsibility and of non-
retroactivity need to be respected; an accused is presumed innocent until proven guilty; an
accused has the right to be tried in his presence; no one may be compelled to testify or to
confess and a convicted person needs to be informed of the remedies and their time limits. It
does not mention the right to call witnesses or to have witnesses examined, the pronouncing
of the judgment in public or the principle of non bis in idem. However, the first right is
considered to be part of the general right to be have all the necessary rights and means of
defence, together with the right to have the assistance of a competent interpreter.1967 With
regard to the right to have the judgment announced in public, the International Criminal
Tribunal for the Former Yugoslavia has found that a trial in public is required under Common
Article 3.1968 Concerning the principle of non bis in idem, it is part of customary international
humanitarian law applicable in non-international armed conflicts.1969 Moreover, since it is
such a fundamental principle of criminal law, the impermissibility of derogation from the
principle has been laid down in human rights law.1970

§7. Prohibition of discrimination

426. It is a cardinal principle of constitutional law that discrimination cannot be tolerated. As

such there is not much State practice confirming the peremptory status of the prohibition of

1965
Article 103, § 1 Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949); Article 71, §
1 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (1949).
1966
This argument is developed by: C. OLIVIER, “Revisiting General Comment No. 29 of the United Nations
Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency”, Leiden
Journal of International Law 2004, 407-408 and 413.
1967
Y. SANDOZ, C. SWINARSKI and B. ZIMMERMAN (eds.), Commentaire des Protocols additionnels du 8 juin
1977 aux Conventions de Genève du 12 août 1949, Geneva, Nijhoff, 1986, No. 4602.
1968
Prosecutor v. Simić et al., Case No. IT-95-9-T, Trial Chamber, Judgment, 17 October 2003, § 678.
1969
J.-M. HENCKAERTS and L. DOSWALD-BECK, Customary International Humanitarian Law, Volume I: Rules,
Cambridge, Cambridge University Press, 2005, 370.
1970
Article 4 (2) and 19 Arab Charter on Human Rights (2004); Article 4 Protocol No. 7 to the European
Convention on the Protection of Human Rights and Fundamental Freedoms (1984). See also: Inter-American
Commission on Human Rights, Report on Terrorism and Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1
corr. (2002), §§ 245-253.

402
discrimination.1971 However, Article 1 Charter of the United Nations provides that one of the
purposes of the United Nations is to promote the enjoyment of human rights without any
distinction on the basis of race, sex, language or religion and the prohibition of discrimination
and equal treatment before the law has been incorporated in numerous human rights
treaties.1972 At its first session the General Assembly declared that religious and racial
persecutions and discrimination went against the highest interests of mankind and were
contrary to the letter and spirit of the Charter.1973 Moreover, the Inter-American Court on
Human Rights has accepted that the principle of non-discrimination and equality before the
law and equal protection of the law are part of 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”.1974 Similarly, the Human Rights Committee has held that the principle of
non-discrimination and equality is “a basic and general principle relating to the protection of
human rights”.1975 Although the prohibition of discrimination typically is not listed amongst
the provisions that are non-derogable, certain derogations cannot be made if they discriminate
on the basis of certain grounds.1976 In addition, the prohibition of discrimination on any

1971
Most of the statements concern the prohibition of racial discrimination or refer to the general principles of
the Charter of the United Nations, which include the prohibition of discrimination: Cuba, 52nd Meeting of the
Committee of the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, §
34; Madagascar, 53rd Meeting of the Committee of the Whole, l.c., § 22 Lebanon, 52nd Meeting of the
Committee of the Whole, l.c., § 43; Poland, 53rd Meeting of the Committee of the Whole, l.c., § 35; Uruguay,
53rd Meeting of the Committee of the Whole, l.c., § 48; Bulgaria, 54th Meeting of the Committee of the Whole,
l.c., § 66; Czechoslovakia, 55th Meeting of the Committee of the Whole, l.c., § 26; Ecuador, 19th Plenary
Meeting, United Nations Conference on the Law of Treaties, Official Records, Vol. II, 1970, § 35; Cuba, 19th
Plenary Meeting, l.c., § 42; Poland, 19th Plenary Meeting, l.c., § 70; Accordance with International Law of the
Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, Oral
Statement of Jordan, CR 2009/31, 9 December 2009, 38, at http://www.icj-cij.org/docket/files/141/15728.pdf;
Id., Oral Statement of the United States of America, CR 2009/30, 8 December 2009, 30, at http://www.icj-
cij.org/docket/files/141/15726.pdf; Id., Oral Statement of Azerbaijan, CR 2009/27, 3 December 2009, 18, at
http://www.icj-cij.org/docket/files/141/15716.pdf; Id., Oral Statement of Albania, CR 2009/26, 2 December
2009, 13, at http://www.icj-cij.org/docket/files/141/15714.pdf. See also: Report of the Committee on the
Elimination of Racial Discrimination, 1 November 2002, UN Doc. A/57/18, 107. Nonetheless, the general
prohibition of discrimination has been labelled a peremptory norm: Ghana, 53rd Meeting of the Committee of
the Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I, 1969, § 16; Ivory Coast,
55th Meeting of the Committee of the Whole, l.c. § 50.
1972
Articles 2 (2) and Article 3 International Covenant on Economic, Social and Cultural Rights (1966);
Articles 2 and Article 26 International Covenant on Civil and Political Rights (1966); Article 2 International
Convention on the Elimination of All Forms of Racial Discrimination (1965); Article 2 Convention on the
Elimination of All Forms of Discrimination against Women (1979); Article 1 and Article 24 American
Convention on Human Rights (1969); Article 2 and Article 3 African Charter of Human and Peoples’ Rights
(1981); Article 3 and Article 11 Arab Charter of Human Rights (2004); Article 1 and Article 14 European
Convention for the Protection of Human Rights and Fundamental Freedoms (1950); Article 1 Protocol No. 12
to the European Convention for the Protection of Human Rights and Fundamental Freedoms (2000); Article 2
and Article 7 Universal Declaration of Human Rights, UN General Assembly Resolution 217A (III).
1973
UN General Assembly Resolution 103 (I).
1974
Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, 17 September
2003, Series A, No. 18, § 101; Yatama v. Nicaragua, Preliminary Objections, Merits, Reparation and Costs,
Judgment, 23 June 2005, Series C, No. 127, § 184.
1975
Human Rights Committee, General Comment No. 18, Non-discrimination, UN Doc. CCPR/C/37, § 1.
1976
Article 4 (1)-(2) International Covenant on Civil and Political Rights (1966); Article 27 (1) American
Convention on Human Rights (1969); Article 4 (1)-(2) Arab Charter of Human Rights (2004); Article 15 (1)
European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The African

403
ground is prohibited in international humanitarian law.1977 If States cannot discriminate in the
application of international humanitarian law, that functions as lex specialis to human rights
law and covers the most severe type of national public emergencies, it seems unlikely that
they can discriminate on any ground in less significant national public emergencies.
Furthermore, the principle of non-discrimination and equality before the law is inherently
linked to other peremptory norms. If States cannot derogate from those norms, they can also
not create international norms that limit those norms to certain categories of individuals.
States would also violate peremptory norms if they would adopt legislation that would limit
the enjoyment of peremptory norms to certain groups. In this respect, the serious denial of the
right to equality by infringing fundamental human rights to groups of people with the intent to
discriminate constitutes the international crime of persecution.1978 Already the Nuremberg
Statute and Control Council Law No. 10 criminalized persecution, or the systematic
discrimination on political, racial or religious grounds;1979 the Charter of the Military Tribunal
for the Far East limited the crime to political or racial grounds.1980 The crime was
subsequently taken up in the Statute of the International Tribunal for the Former Yugoslavia
and Rwanda, in the Statute of the International Criminal Court and in the Statute of the
Special Court for Sierra Leone.1981 Under customary international law the crime of
persecution implies a plan or policy to commit serious violations of fundamental rights (that
has caused discrimination in fact) with the intent to discriminate.1982 Since States cannot have
a discriminatory intent by analogy with genocide, States will persecute if they have adopted a

Charter does not allow for any derogation. Furthermore, specialized human rights conventions do not provide
for derogation clauses: International Convention on the Elimination of All Forms of Racial Discrimination
(1965), United Nations Treaty Series No. 9464; Convention on the Elimination of All Forms of Discrimination
against Women (1979), United Nations Treaty Series No. 20378; Convention on the Rights of the Child (1989),
United Nations Treaty Series No. 27531.
1977
Common Article 3 (1949); Article 75 Protocol (I) Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed Conflicts (1977); Article 2 and Article 4
Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts (1977).
1978
Prosecutor v. Tadić, Case No. IT-94-1-T, Trial Chamber, Opinion and Judgment, 7 May 1997, § 697.
1979
Article 6 (c) Charter of the Nurnberg International Military Tribunal (1945); Article II (1) (c) Control
Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity
(1945), 3 Official Gazette Control Council for Germany 1946, 50.
1980
Article 5 (c) Charter of the International Tribunal for the Far East (1945).
1981
Article 5 (h) Statute of the International Criminal Tribunal for the Former Yugoslavia (1993); Article 3 (h)
Statute of the International Criminal Tribunal for Rwanda (1994); Article 7 (1) (h) Rome Statute of the
International Criminal Court (1998); Article 2 (h) Statute of the Special Court for Sierra Leone (2002).
1982
Prosecutor v. Tadić, Case No. IT-94-1-T, Trial Chamber, Opinion and Judgment, 7 May 1997, § 697;
Prosecutor v. Krnojelac, Case No. IT-95-25-A, Appeals Chamber, 17 September 2003, § 185; Prosecutor v.
Vasiljević, IT-98-32-A, Appeals Chamber, Judgment, 25 February 2004, § 113; Prosecutor v. Blaškić, Case No
IT-95-14-A, Appeals Chamber, Judgment, 29 July 2004, § 131; Prosecutor v. Kordić and Čerkez, Case No. IT-
95-14/2-A, Appeals Chamber, Judgment, 17 December 2004, § 101; Prosecutor v. Kvočka et al., Case No. IT-
98-30/1-A, Appeals Chamber, Judgment, 28 February 2005, § 320; Prosecutor v. Deronjić, Case No. IT-02-62-
A, Appeals Chamber, Judgment, 20 July 2005, § 109; Prosecutor v. Stakić, Case No. IT-97-24-A, Appeals
Chamber, Judgment, 22 March 2006, § 327; A. CASSESE, International Criminal Law, Oxford, Oxford
University Press, 2008, 125. The Rome Statute requires a nexus with other international crimes: Article 7(1)(h).
The International Criminal Tribunal for the Former Yugoslavia has however never required this nexus:
Prosecutor v. Kupreškić et al, Case No. IT-95-16-T, Trial Chamber, Judgment, 14 January 2000, § 581;
Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-T, Trial Chamber, Judgment, 26 February 2001, §§ 193-
194; Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Chamber, Judgment, 2 August 2001, § 535.

404
policy or plan to infringe upon the fundamental rights of a group of persons. Furthermore,
acts that individually are not inhumane, but cumulatively are having this result will also fall
under persecution,1983 as will individual acts that are not breaches of international law but are
of equal gravity or committed together with violations of fundamental rights.1984

427. Discrimination implies the distinction, exclusion, restriction or preference which is

based on any prohibited ground.1985 Consequently, each individual should be equal before the
law and enjoy equal protection of the law: the law should not introduce distinctions that give
certain individuals more or less rights without any justification or limit the protection
provided by law for certain individuals. Since each individual has equal worth he should be
treated equally and should benefit from the same rights as any other individual, unless there is
a reasonable and justifiable ground for distinction; the goal of the distinction must be
legitimate and the measures should be proportionate with the aim sought to be achieved.1986
From the perspective of peremptory norms as constitutional norms this implies that each
individual cannot be denied the enjoyment of rights that have obtained peremptory status
regardless of the ground that is invoked. In this respect, Article 2 (1) International Covenant
on Civil and Political Rights and Article 2 (2) International Covenant on Economic, Social
and Cultural Rights retain a broad range of protected grounds that are excluded as reasons for
differential treatment. A protected ground means that certain characteristics of an individual
may not be deemed relevant for differential treatment. It may be questioned whether all these
grounds belong to jus cogens. Most of the State practice points to the acceptance of the
prohibition of racial discrimination as a peremptory norm.1987 In addition, the crime of
persecution is limited under customary law to persecution of racial, ethnic, political or
religious groups.1988 Nonetheless, the rights that have obtained peremptory status are so
fundamental that no ground can justify differential treatment. For instance it would be absurd
to argue that other groups may be enslaved, exterminated or tortured because they do not
belong to a specific group. Hence, the prohibition of discrimination with regard to rights of
peremptory status is absolute and does not allow for any discrimination.1989 Next to this

1983
Prosecutor v. Kupreškić et al., Case No. IT-95-16-T, Trial Chamber, Judgment, 14 January 2000, § 615 and
§ 622.
1984
Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, § 186;
Prosecutor v. Krnojelac, Case No. IT-95-25-T, Trial Chamber, Judgment, 15 March 2002, § 434; Prosecutor v.
Brđanin, Case No. 99-36-A, Appeals Chamber, Judgment, 3 April 2007, 296.
1985
Human Rights Committee, General Comment No. 18, Non-discrimination, UN Doc. CCPR/C/37, § 7;
Committee on Economic, Social and Cultural Rights, General Comment No. 20, Article 2, para. 2, of the
International Covenant on Economic, Social and Cultural Rights (Non-discrimination in Economic, Social and
Cultural Rights), UN Doc. E/C.12/GC/20, § 7.
1986
Human Rights Committee, General Comment No. 18, Non-discrimination, UN Doc. CCPR/C/37, § 13;
Committee on Economic, Social and Cultural Rights, General Comment No. 20, Article 2, para. 2, of the
International Covenant on Economic, Social and Cultural Rights (Non-discrimination in Economic, Social and
Cultural Rights), UN Doc. E/C.12/GC/20, § 13; European Court of Human Rights, Case “relating to certain
aspects of the laws on the use of languages in education in Belgium” v. Belgium, Application Nos. 1474/62,
1677/62, 1691/62, 1769/63, 1994/63, and 2126/64, Merits, Judgment, 23 July 1968, Series A, No. 6, § 10; Inter-
American Court of Human Rights, Legal Status and Human Rights of the Child, Advisory Opinion OC-17/02,
28 August 2002, Series A, No. 17, 1, § 47.
1987
Supra, No. 170.
1988
A. CASSESE, International Criminal Law, Oxford, Oxford University Press, 2008, 126.
1989
The International Criminal Tribunal for the Former Yugoslavia has rightly stated that the crimes listed in
Article 5 other than persecution have a humanitarian purpose and could therefore not be restricted to the

405
general prohibition of discrimination of peremptory rights, there might be peremptory norms
prohibiting discrimination of a specific group because the particular ground may never justify
differential treatment. This is the case of racial discrimination: every distinction in the
enjoyment of human rights based on race, colour, descent, and national or ethnic origin that
limits the rights of the racial group is prohibited.1990 The same might also be said of
discrimination against women due to the wide ratification of the Convention on the
Elimination of All Forms of Racial Discrimination. Although numerous reservations have
been made, from a constitutional perspective the core principle that women cannot be
discriminated for the sole reason of being female, would have peremptory status.1991 In any
event, discrimination on the basis of sex is equally prohibited by the International Covenant
on Civil and Political Rights, the International Covenant on Economic, Social and Cultural
Rights and regional human rights treaties.1992 Furthermore, the crime of persecution may be
limited to racial, ethnic, religious or political groups, but this does not necessarily imply that
only those grounds have reached constitutional protection. The crime of persecution requires
the serious infringement of fundamental rights that are systematically committed against a
group with the intent to discriminate that group. If the crime of persecution is a peremptory
norm, this means that any organized and serious violation of fundamental rights against a
racial, ethnic, political or religious group, whether or not those rights have peremptory status,
is a violation of a peremptory norm.1993 If the group is not listed as a group that can be the
victim of persecution, the crime of persecution is not committed. Nevertheless, if the group
has been singled out and their peremptory rights violated, the group has been inflicted a
discriminatory violation of their constitutional rights under international law. In any event, the
gap between the groups protected against persecution and the general prohibition of
discrimination of constitutional law is closing. The Rome Statute has significantly extended
the groups that may be the victim of persecution and includes cultural groups and persecution
based on gender or any other grounds that are universally recognized as impermissible.
Gender in term refers to the two sexes and how society expects them to behave.1994 There has

protected groups of the crime of persecution: Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber,
Judgment, 15 July 1999, § 285.
1990
Article 5 International Convention on the Elimination of All Forms of Racial Discrimination (1965); P.
THORNBERRY, “Confronting Racial Discrimination: A CERD Perspective”, Human Rights Law Review 2005,
254.
1991
B. SIMMA and P. ALSTON, “The Sources of Human Rights Law: Custom, Jus Cogens and General
Principles”, Australian Yearbook of International Law 1992, 95; H. CHARLESWORTH and C. CHINKIN, “The
Gender of Jus Cogens”, Human Rights Quarterly 1993, 70.
1992
Article 2 (1) and Article 3 International Covenant on Civil and Political Rights (1966); Article 2 (2) and
Article 3 International Covenant on Economic, Social and Cultural Rights (1966); Article 1 (1) American
Convention on Human Rights (1969); Article 2 African Charter on Human and Peoples’ Rights (1981); Article
Arab 3 Charter on Human Rights (2004) (that qualifies the prohibition of discrimination on the basis of sex with
the rules of Islamic law); Article 14 European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950); Article 1 Protocol No. 12 to the European Convention for the Protection of Human Rights
and Fundamental Freedoms (2000).
1993
In this respect, the International Criminal Tribunal for the Former Yugoslavia has held that besides the
crimes listed in Article 5 of its Statute, any serious attack on fundamental rights that can be found in human
rights law or humanitarian law can satisfy the actus reus of the crime of persecution: Prosecutor v. Kupreškić et
al., Case No. IT-95-16-T, Trial Chamber, Judgment, 14 January 2000, § 621.
1994
Article 7 (3) Rome Statute of the International Criminal Court (1998); V. OOSTERVELD, “Gender,
Persecution and the International Criminal Court: Refugee Law’s Relevance to the Crime against Humanity of
Persecution”, Duke Journal of Comparative and International Law 2006-2007, 77; for an overview on the

406
been some debate whether gender also includes sexual orientation.1995 Considering the
opposition against inclusion of sexual orientation within the crime of persecution, it may be
doubted that sexual orientation is another universally recognized ground for the crime of
persecution.1996 Furthermore, the definition of gender in the Rome Statute seems not to
include this ground, because it refers to the two sexes and not to the sexual preference of
individuals towards members of the same or different sex.1997 However, indirectly sexual
orientation may be covered by gender: gender also includes how society expects men and
women to act and behave. Hence, men or women of different sexual orientation might
become persecuted because they are deemed not to behave as a society wants “normal” men
and women to behave.1998 Although the definition of persecution in the Rome Statute is not
yet part of customary international law,1999 it should be noted that persecution may result from
different discriminatory grounds, one of which is included in the customary definition of
persecution the other not. Thus, sexual violence against women of a certain ethnic background
may fall under persecution.2000

SECTION.4. CONFLICT BETWEEN DIFFERENT PEREMPTORY NORMS AND THE FORMATION

OF CONFLICT-RULES

428. A constitutionalist approach to jus cogens would identify the basic norms that establish
the political and legal structure of the international community as peremptory norms. At the

meaning of “gender” in the United Nations: V. OOSTERVELD, “The Definition of ‘Gender’ in the Rome Statute
of the International Criminal Court: A Step Forward or Back for International Criminal Justice”, Harvard
Human Rights Journal 2005, 66 et seq; OOSTERVELD is of the opinion it does: Ibid., 77 et seq.
1995
V. OOSTERVELD, “Gender, Persecution and the International Criminal Court: Refugee Law’s Relevance to
the Crime against Humanity of Persecution”, Duke Journal of Comparative and International Law 2006-2007,
79-80; V. OOSTERVELD, “The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A
Step Forward or Back for International Criminal Justice”, Harvard Human Rights Journal 2005, 63-66.
1996
Nevertheless, sexual orientation has been considered a prohibited ground for the enjoyment of human
rights: Committee on Economic, Social and Cultural Rights, General Comment No. 20, Article 2, para. 2, of the
International Covenant on Economic, Social and Cultural Rights (Non-discrimination in Economic, Social and
Cultural Rights), UN Doc. E/C.12/GC/20, § 32; Organization of American States, General Assembly, Human
Rights, Sexual Orientation and Gender Identity, AG/RES.2653 (XLI-O/11).
1997
R. LEHR-LEHNARDT, “One Small Step for Women: Female-Friendly Provisions in the Rome Statute of the
International Criminal Court”, BYU Journal of Public Law 2001-2002, 340. In Toonen v. Australia, the Human
Rights Committee held that the prohibition of discrimination on the basis of sex also included sexual
orientation: Toonen v. Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992, § 8.7; other
human rights bodies have considered that sexual orientation falls under the heading of “other grounds”: M.
O’FLAHERTY and J. FISCHER, “Sexual Orientation, Gender Identity and Human Rights Law: Contextualizing
the Yogyakarta Principles”, Human Rights Law Review 2008, 215.
1998
V. OOSTERVELD, “Gender, Persecution and the International Criminal Court: Refugee Law’s Relevance to
the Crime against Humanity of Persecution”, Duke Journal of Comparative and International Law 2006-2007,
79-80; V. OOSTERVELD, “The Definition of ‘Gender’ in the Rome Statute of the International Criminal Court: A
Step Forward or Back for International Criminal Justice”, Harvard Human Rights Journal 2005, 78.
1999
A. CASSESE, International Criminal Law, Oxford, Oxford University Press, 2008, 126.
2000
Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Trial Chamber, Judgment and Sentence, 3 December
2003, § 1079; Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Chamber, Judgment, 2 August 2001, §§ 617-
618; Prosecutor v. Kvočka et al., Case No.: IT-98-30/1-T, Trial Chamber, Judgment, 2 November 2001, §§ 752
et seq; Prosecutor v. Kvočka et al., Case No.: IT-98-30/1-A, Appeals Chamber, Judgment, 28 February 2005, §
370.

407
same time the most fundamental rights of individuals and other actors are enshrined in
peremptory norms. Both groups of norms have a different purpose. The first group protects
the rights of States to ensure that they can exercise their autonomy and authority granted by
international law; the second group precisely puts limits on the exercise of this autonomy and
authority. It is therefore easily imaginable that conflicts may arise between different norms of
jus cogens especially between norms that belong to a different category. In such cases at least
two norms are applicable at the same time, but their respective scope of application needs to
be set out or one norm will be given priority depending on the circumstances.2001 For this
reason, I followed ALEXY’s constitutional theory and argued that peremptory norms behave as
principles if various peremptory norms are applied to a situation and will be balanced against
each other; a conflict-rule will be formulated to determine which of the two norms of jus
cogens will have more weight in the particular circumstances of the case. These conflict-rules
equally belong to constitutional law.2002 In this section I will examine whether international
law as it now stands has such conflict-rules or, if not, whether there are indications that such
rules are forming.

429. Conflicts between peremptory norms will not only occur between the norms of the first
category and the second category, but may also occur between structural norms of the
international legal order and between peremptory norms that protect other subjects against
abuse of power. For instance, in case of colonial peoples the right to self-determination
(although admittedly on the boundary of the two categories) might override the prohibition of
non-intervention and the prohibition of the use of force, allowing other States to support the
liberation movement and if necessary use force against a colonial power.2003 The balancing of
various human rights and the formulation of conflict-rules are part and parcel of the work of
international human rights courts. Despite the foregoing, I will only focus on two conflicts
between norms of the first group and norms of the second since those conflicts point to the
uneasy relationship between the two categories, the former which is still largely embedded in
a Westphalian international order, the latter aiming to humanize international law. The two
conflicts that will be briefly discussed are first the conflict between the prohibition on the use
of force and non-intervention and the protection of fundamental human rights, and second the
conflict between sovereign immunity and the enforcement of human rights violations before
national courts. I select those two conflicts because in both instances it concerns a conflict
between the principle of sovereignty as the bedrock of international law and the protection
and enforcement of human rights, whose introduction in international law has significantly
changed the old Westphalian paradigm of which sovereign equality of States is a core
element. In addition, those two areas are selected because there are already indications of a
formulation of conflict-rules, in the first conflict through the concept of responsibility to
protect as developed through the United Nations, in the second conflict through the case law
of national courts.

2001
R. KOLB, “Conflict entre normes de jus cogens”, in X, Droit du pouvoir, pouvoir du droi : Mélanges offerts
à Jean Salmon, Brussels, Bruylant, 2007, 484-485.
2002
Supra, No. 88 and Nos. 335-337.
2003
Although it is doubtful that this has become a norm of international law: K. ZEMANEK, “The Metamorphosis
of Jus Cogens: From an Institution of Treaty Law to the Bedrock of the International Legal Order?”, in E.
CANNIZZARO (ed.), The Law of Treaties beyond the Vienna Convention, Oxford, Oxford University Press, 2011,
387.

408
§1. The conflict between the principles of non-intervention, non-use of force and the
protection of fundamental rights in light of the “Responsibility to Protect”

430. Since World War II international law has sought to protect the individual from
oppression by advancing and protecting human rights. This has led to a reformation of
international law as a legal system that is not solely focused on the relations between
sovereign and independent States, which was characteristic of the Westphalian international
order, but which is equally concerned with the well-being of peoples and individuals.
Nevertheless, the move to the humanization of international law has not replaced the old
framework of international law as a legal system between and for coexisting and cooperating
States. This is reflected in the constitutional norms of the international legal system, which I
have identified. International law is on the one hand a legal system based on sovereign equal
States that are the result of the right of self-determination of different people. States should
respect each other’s sovereign equality, not intervene in the internal affairs of other States,
refrain from the use of force and settle their disputes peacefully. On the other hand,
international law precisely aims to limit the exercise of power by States by protecting the
most fundamental rights of (primarily) the individual. Only a legitimate exercise of power
through the sovereign equal State, one which respects the fundamental rights of individuals
will be respected. Hence, in international law there is tension between respect for the
sovereignty of States and the self-determination of people, which implies non-intervention
and the prohibition of the use of force, and the duty to respect the most fundamental norms of
individuals and other actors.

431. The conflict between these two sides of international law comes clearly in the
foreground in case of humanitarian intervention, the intervention into a sovereign State, if
necessary through the use of force, in order to protect human rights without that State’s
consent, either by the authorization by the Security Council or by the unilateral action of
another State or groups of States. Especially the latter situation is controversial since it
involves a unilateral assessment by a State or group of States of the situation within another
State that would demand intervention, even the use of force. Hence, there is a clear need to
establish if and under which conditions the use of force can be justified in order to intervene
in another State that is accused of serious violations of fundamental rights. Since the problem
involves multiple constitutional principles, such as the prohibition on the use of force, the
prohibition of intervention, sovereign equality of States, and protection of core human rights,
a conflict-rule should be created that balances these principles and that would ideally only
allow legitimate interventions.

432. The failure to act and prevent the genocide in Rwanda and Srebrenica and the
withdrawal of the United Nations mission in Somalia on the one hand and the unauthorized
NATO intervention in Kosovo on the other hand demonstrated the need to develop a
comprehensive doctrine on how to reconcile the protection of fundamental human rights
against serious violations with the principles of State sovereignty, non-intervention and the
prohibition of the use of force, thereby avoiding unjustified intervention and the abusive
invocation of sovereignty. In order to set out guidelines for this thorny issue, the Canadian
government sponsored the creation of the International Commission on Intervention and State

409
Sovereignty (ICISS) that issued a report “The Responsibility to Protect” in 2001.2004 The
ICISS reconceptualised the debate: instead of focusing on a State right to intervene for
humanitarian purposes in another State, it started from the point of view of the possible
victims which should at all times enjoy the benefit of fundamental human rights. It stressed
that in principle States have the responsibility to protect their citizens against serious harm, in
particular large scale loss of life or large scale ethnic cleansing. The Commission hence
stressed that sovereignty is not only a right not to be intervened by another State, but also, and
primarily, a duty and responsibility to protect the basic human rights of persons within a
State’s jurisdiction. Other international actors should only intervene and take up this
responsibility when a State is unable or unwilling to perform its responsibility to protect. In
that case the prohibition of non-intervention should be superseded by the international
responsibility to protect. By stating that the protection of human rights is the primary
responsibility of States, the Commission stressed that the most important aspect of the
responsibility to protect is the prevention of the violation of the most fundamental rights.
Hence, the use of force and intervention in another State should ideally be exceptional. In any
event, if intervention is required, the responsibility to protect also includes post-conflict
reconstruction of a society.2005 The concept of responsibility to protect is thus much wider
than the right to humanitarian intervention. However, I will largely focus on the right to
intervene in order to stop atrocities since this is the part of responsibility to protect that has
been mostly contested and it is the aspect where the conflict between the two categories of
constitutional norms is at its height.

433. The findings of the Commission were largely endorsed and with some modifications
taken over by the Secretary-General’s High-level Panel on Threats, Challenges and Change in
their 2004 report “A More Secure World: Our Shared Responsibility”. In that report it
advocated that the United Nations should take over the principle of responsibility to protect
for “genocide and other large-scale killing, ethnic cleansing or other serious violations of
international humanitarian law”.2006 The Secretary General Annan subsequently took over the
principle in his report “In Larger Freedom” that proposed reforms of the United Nations.2007
Despite the rejection of these reforms, the World Summit did manage to agree on the
principle of responsibility to protect.2008 Afterwards, he Security Council has adopted
resolutions in which it referred to the responsibility to protect.2009 Nevertheless, the
responsibility to protect has undergone some changes from its initial elaboration by the ICISS.
Firstly, the responsibility to protect has become limited to the crime of genocide, crimes
against humanity, ethnic cleansing and war crimes in order to appease the concerns of the
States of the South that the responsibility to protect was too generally phrased and thus still

2004
International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, Ottawa,
International Development Research Centre, 2001, at http://responsibilitytoprotect.org/ICISS%20Report.pdf.
2005
Ibid., xi-xiii.
2006
“Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility”, UN Doc. A/59/565, § 203.
2007
“Report of the Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights
for All”, UN Doc. A/59/2005, § 135.
2008
UN General Assembly Resolution 60/1, World Summit Outcome Document, §§ 138-139.
2009
Security Council Resolution 1674 (2006); Security Council Resolution 1706 (2006); Security Council
Resolution 1894 (2009); Security Council Resolution 1973 (2011).

410
open to abuse.2010 In this respect, it is peculiar that reference is made to international crimes.
International crimes require the existence of a specific criminal intent, which might only be
established by a court after the atrocities have been committed. In addition, the proof of a
criminal intent is not required to determine State responsibility, for instance in the case of
genocide.2011 It would have been more opportune to refer to serious violations of human rights
and international humanitarian law or to serious violations of peremptory norms of general
international law. Nonetheless, the reference to international crimes has the benefit that at
least genocide, crimes against humanity and war crimes are well-defined in international
instruments, in particular the Rome Statute of the International Criminal Court. Reference to
“large scale loss of life or ethnic cleansing” or to “genocide and other large-scale killing,
ethnic cleansing or other serious violations of international humanitarian law” is indeed not
that precise and there is no clearly established list of peremptory norms. Nonetheless, not
surprisingly, the ICISS refers to those crimes as instances in which there is a large scale loss
of life or ethnic cleansing.2012 Furthermore, the crimes of genocide, crimes against humanity
and war crimes coincide with serious violations of fundamental rights and norms of jus
cogens. A second difference is that the ICISS had also developed who should act if the
Security Council was unable to, in which case intervention could be authorized by the General
Assembly under the Uniting for Peace procedure or through regional organizations that would
subsequently seek authorization from the Security Council.2013 This was not taken over in the
World Summit Outcome and the responsibility to protect that involves the use of force against
a State must always be mandated by the Security Council. Thirdly, the Commission also laid
down criteria that served as guidelines for when military intervention would be justified.2014
The High-level Panel and the Secretary-General also recommended the adoption of similar
criteria for military intervention by the Security Council,2015 but no criteria were included in
the World Summit Outcome Document, due to opposition from the Permanent Members of
the Security Council which either did not want to see their discretionary power curbed by a
set of criteria or were concerned that guidelines would allow the United Nations to intervene
in internal affairs.2016 In what follows I will focus on the responsibility to protect as retained
in the World Summit Outcome Document, since this conception reflects the consensus at the
international level on the doctrine of responsibility to protect.

434. It can be questioned that the doctrine of responsibility to protect, as retained in the
World Summit Outcome Document, has added anything new to existing international law,2017

2010
J. EATON, “An Emerging Norm? Determining the Meaning and Legal Status of the Responsibility to
Protect”, Michigan Journal of International Law 2010-2011, 779-780.
2011
Supra, No. 401.
2012
International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, Ottawa,
International Development Research Centre, 2001, 33, § 4.20.
2013
Ibid., 53 et seq.
2014
Ibid., 32 et seq.
2015
Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility, UN Doc. A/59/565, § 207; “Report of the Secretary-General, In Larger
Freedom: Towards Development, Security and Human Rights for All”, UN Doc. A/59/2005, § 126.
2016
N.J. WHEELER, “A Victory for Common Humanity? The Responsibility to Protect after the 2005 World
Summit”, Journal of International Law and International Relations 2005-2006, 100-101.
2017
“Report of the Secretary General, Implementing the Responsibility to Protect”, UN Doc. A/63/677, § 3; L.
BOISSON DE CHAZOURNES and L. CONDORELLI, “De la ‘responsabilité de protéger’ ou d’une nouvelle parure
pour une notion déjà bien établie”, Revue Générale de Droit International Public 2006, 13; C. STAHN,

411
but at least the proponents of the concept are of the opinion it has.2018 Defenders of
responsibility to protect depart from a rather absolute notion of sovereignty, the invocation of
which would shield a State from any outside intervention, except in exceptional cases.2019 It is
correct that such a concept of sovereignty has been defended in the international arena, as a
matter of political discourse, and proponents of the responsibility to protect are right in
contesting this notion of sovereignty. Legally, however, the prohibition of non-intervention is
limited to the internal affairs of a State and serious breaches of fundamental human rights do
not belong to the internal affairs of a State since they are regulated by international law.2020
Furthermore, the idea that sovereignty is not only a right, but also entails duties is not new in
international law. Already in the Island of Palmas Arbitration Arbitrator Huber held that
sovereignty is not only a right, but also implies a duty to protect in the territory of a State the
interests of another State.2021 The Draft Declaration on the Rights and Duties of States already
established that all States had the duty to respect without discrimination the human rights of
all persons within their jurisdiction.2022 Furthermore, the principle of sovereign equality does
not only imply rights but also the duty to respect the rights of other States and to respect in

“Responsibility to Protect: Political Rhetoric or Emerging Norm?”, American Journal of International Law
2007, 111-115 (but also a partial progressive development of international law: Ibid., 115-116); M. PAYANDEH,
“With Great Power Comes Great Responsibility? The Concept of the Responsibility to Protect within the
Process of International Lawmaking”, Yale Journal of International Law 2010, 486; G. MOLIER, “Humanitarian
Intervention and the Responsibility to Protect after 9/11”, Netherlands International Law Review 2006, 52.
2018
G. EVANS, “From Humanitarian Intervention to the Responsibility to Protect”, Wisconsin International Law
Journal 2006-2007, 708-709; J. BRUNNÉE and S. TOOPE, “Norms, Institutions and UN Reform: the
Responsibility to Protect”, Journal of International Law and International Relations 2005-2006, 128; A-M.
SLAUGHTER, “Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform”, American Journal of
International Law 2005, 627.
2019
J. EATON, “An Emerging Norm? Determining the Meaning and Legal Status of the Responsibility to
Protect”, Michigan Journal of International Law 2010-2011, 770-771; G. EVANS, “From Humanitarian
Intervention to the Responsibility to Protect”, Wisconsin International Law Journal 2006-2007, 704-705; T.G.
WEISS, “R2P after 9/11 and the World Summit”, Wisconsin International Law Journal 2006-2007, 744; J.
BRUNNÉE and S. TOOPE, “Norms, Institutions and UN Reform: the Responsibility to Protect”, Journal of
International Law and International Relations 2005-2006, 127; V.P. NANDA, “The Protection of Human Rights
under International Law: Will the U.N. Human Rights Council and the Emerging New Norm of ‘Responsibility
to Protect’ Make a Difference?”, Denver Journal of International Law and Policy 2006-2007, 373. This seems
not to be the view of the ICISS, which stated that sovereignty implies the responsibility to protect the rights of
other States and the basic rights of the people: “The Responsibility to Protect”, Ottawa, International
Development Research Centre, 2001, 8, § 1.35. Nonetheless, later the ICISS does seem to accept a broad
prohibition of intervention, that only in exceptional situations can be set aside: Ibid., 31, §§ 4.11-4.13. I am of
the opinion that this distorts the exact scope of the duty of non-intervention which only absolutely prohibits
intervention in internal affairs. From the moment a matter is regulated by international law, the prohibition is
not applicable. Since the commission of atrocities is a concern of international law, it is therefore incorrect to
speak of exceptions to the prohibition of intervention, since the rule does not apply in the first place. This might
be due to the fact that the ICISS is discussing military intervention, but then it should focus on the prohibition
on the use of force and not the prohibition of intervention.
2020
Supra, No. 391; C.C. JOYNER, “‘The Responsibility to Protect’: Humanitarian Concern and the Lawfulness
of Armed Intervention”, Virginia Journal of International Law 2006-2007, 718; M. PAYANDEH, “With Great
Power Comes Great Responsibility? The Concept of the Responsibility to Protect within the Process of
International Lawmaking”, Yale Journal of International Law 2010, 470.
2021
Island of Palmas Arbitration (United States of America v. the Netherlands), Award of 4 April 1928, Reports
of International Arbitral Awards, Vol. II, 839.
2022
Article 6 Draft Declaration on the Rights and Duties of States, Annex to UN General Assembly Resolution
375 (IV)

412
good faith international law.2023 In addition, the duty to prevent genocide, crimes against
humanity and war crimes is equally established, either expressly in a treaty or implicitly
contained in the substantive right.2024 Finally, the requirement of a mandate of the Security
Council for the exercise of the use of force in order to protect the population of a State against
atrocities has not added anything to existing international law.2025

435. The merits of the concept of responsibility to protect lay elsewhere than the legal area.
First, the responsibility to protect has re-emphasized that sovereignty is more than authority
over a territory to the exclusion of any other State or international organization. Legally it
always implied respect for international law and the protection of human rights in particular.
Politically however, the concept of sovereignty was used to shield a State from outside
criticism and concerns and the responsibility attached to sovereignty downplayed. The
reconfirmation by all States of this neglected aspect of sovereignty is therefore to be
welcomed. In this respect, it has been argued that the responsibility to protect approach to
sovereignty will replace the sovereignty as authority or control.2026 However, it can be
questioned that there is a sharp distinction between sovereignty as authority or control and
sovereignty as the responsibility to protect, since the responsibility to protect implies that a
legitimate authority has the means and control over a territory to guarantee its citizens
protection.2027 Moreover, sovereignty means more than protecting individuals against
genocide, crimes against humanity, ethnic cleansing and war crimes. Sovereign equality of

2023
Declaration on Principles of International Law concerning Friendly Relations and Co-Operation among
States in accordance with the Charter of the United Nations, annex to Resolution 2625 (XXV).
2024
Article 2 Convention to Suppress the Slave Trade and Slavery (1926); Article I Convention on the
Prevention and Punishment of the Crime of Genocide (1948); Common Article I to the Geneva Conventions
(1949); Article 3 International Convention on the Elimination of All Forms of Racial Discrimination (1965);
Article 2 and Article 16 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (1984). See also: Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, ICJ Rep. 2004, § 158; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment,
ICJ Rep. 2007, § 427. The Court added that the duty to prevent genocide is not limited by territory: Ibid. § 183.
This echoes its previous judgment of 1996 where it stated that the Convention was not limited territorially
because of the erga omnes character of the obligations involved: Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and
Montenegro)), Preliminary Objections, Judgment, ICJ Rep. 1996, § 31. I pointed out that this use of erga
omnes is opaque and does not fit the concept of obligations erga omnes: Supra No. 244. However, in hindsight,
the principle of responsibility to protect might explain the use of the wording “erga omnes” (although it would
still not fit the concept of obligation erga omnes). Since the international community has a responsibility to
prevent genocide, each State, as a member of that international community, can claim an interest in preventing
genocide in another State (and to any other State for that matter), if that latter State fails to protect its
population against genocide. During the merits phase the Court indeed stressed that Serbia because of its
influence of the Bosnian Serbs could have done more to prevent genocide in Bosnia and Herzegovina (which at
that point in time was unable to prevent the genocide): Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment,
ICJ Rep. 2007, §§ 434 et seq.
2025
L. BOISSON DE CHAZOURNES and L. CONDORELLI, “De la ‘responsabilité de protéger’ ou d’une nouvelle
parure pour une notion déjà bien établie”, Revue Générale de Droit International Public 2006, 13.
2026
G. EVANS, Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington D.C.,
Brookings Institute, 2008, 42; G. EVANS, “From Humanitarian Intervention to the Responsibility to Protect”,
Wisconsin International Law Journal 2006-2007, 708.
2027
C. FOCARELLI, “The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many
Ambiguities for a Working Doctrine”, Journal of Conflict and Security Law 2008, 194.

413
States is linked with the principle of self-determination: through the exercise of self-
determination a people has created a State with authorities they deem legitimate to govern
them and to represent them at the international level. They only recognize these authorities as
legitimate to govern their society, thereby excluding other authorities to govern them and to
exercise control, unless international law grants other authorities to govern that people under
certain circumstances. Sovereignty and non-intervention are thus a necessary guarantee for
the continuing exercise of the right to self-determination and this in turn implies that only
certain authorities have the legitimacy to exercise control. The concept of the responsibility to
protect includes this aspect because it is people’s own State that has the primary responsibility
to protect, i.e. only their State has legitimate authorities that can exercise control over society
in order to prevent and combat genocide, crimes against humanity, war crimes and ethnic
cleansing.

436. A second contribution of the doctrine of responsibility to protect is that it stressed that
protection of human beings against atrocities is not limited by humanitarian intervention by
military means, but that the responsibility to protect operates at three levels, the prevention of
international crimes, the reaction to those crimes, in the last resort by the use of force and the
reconstruction of a society. This holistic approach with emphasis on the responsibility to
prevent is a significant contribution because it stresses that military intervention should be a
measure of last resort that normally should not occur because of a successful prevention.2028
This also implies that the responsibility of the international community is not only relevant at
the moment atrocities are committed but that the international community has a responsibility
in the fields of prevention and post-conflict reconstruction. Although the World Summit
Outcome is vague on prevention, it is recognized that the prevention of international crimes is
a concern of the international community and in particular the United Nations.2029 However it
is doubtful that military intervention at this stage would be allowed.2030 Equally, the post-
conflict reconstruction of a society is a concern of the international community, which is
evidenced by the creation of the Peace-Building Commission.

437. Finally, the introduction of the doctrine of responsibility to protect is the most
successful attempt to bridge the dichotomy between sovereignty and non-intervention on the
one hand and the protection of basic human rights on the other. By removing the sting out of
the debate on humanitarian intervention by re-affirming the other aspect of sovereignty the
ICISS has made it possible that a consensus emerged that the international community has the
responsibility to protect people against genocide, crimes against humanity, war crimes and
ethnic cleansing.2031 However, the consensus is a narrow one and not all aspects of the
responsibility to protect are wholly endorsed.2032 During debates in the General Assembly in

2028
G. EVANS, Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington D.C.,
Brookings Institute, 2008, 42-43.
2029
J. BRUNNÉE and S. TOOPE, “Norms, Institutions and UN Reform: the Responsibility to Protect”, Journal of
International Law and International Relations 2005-2006, 129.
2030
Ibid., 130.
2031
G. EVANS, Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All, Washington D.C.,
Brookings Institute, 2008, 42; G. EVANS, “From Humanitarian Intervention to the Responsibility to Protect”,
Wisconsin International Law Journal 2006-2007, 714.
2032
C.G. BADESCU, Humanitarian Intervention and The Responsibility to Protect, Security and Human Rights,
New York, Routledge, 2011, 112-114; G. EVANS, Responsibility to Protect: Ending Mass Atrocity Crimes Once

414
2009 a lot of uneasiness or even opposition remains with the responsibility to react in case of
serious atrocities.2033 Furthermore the consensus is limited to the general principle of the
responsibility to protect. There is a consensus that States have the primary responsibility to
protect their population against genocide, crimes against humanity, war crimes and ethnic
cleansing, and that the international community may step in if a State manifestly fails in that
responsibility, especially through the Security Council.2034 The implementation thereof, which
requires a set of detailed criteria, is still lacking however. In this respect, Secretary-General
Ban Ki-moon proposed in 2009 the Report “Implementing the Responsibility to Protect”,
which referred back to the criteria of the ICISS and the report of Secretary-General Kofi
Annan, “In Larger Freedom”.2035 The General Assembly simply took note of the Report of the
Secretary-General without accepting criteria for the implementation of the responsibility to
protect, although the preamble reaffirms the principle of the responsibility to protect as laid
down in the World Summit Outcome Document. 2036

438. Has this consensus matured in a legal norm? It is generally recognized that the
responsibility to protect is not a binding norm of international law, but an extra-legal norm or
a focal point around which future international norm will develop.2037 Nevertheless,
PAYANDEH has rightly remarked that this is not correct since the responsibility to protect is in
the first place a conceptual framework to prevent and deal with serious human rights
violations. Some of the elements of the responsibility to protect might become part of
international law, but that does not mean that the whole concept will become part of
international law.2038 The responsibility to protect might refer to the competence of the
international community to act in case of international crimes and at best contain an

and For All, Washington D.C., Brookings Institute, 2008, 52; M. PAYANDEH, “With Great Power Comes Great
Responsibility? The Concept of the Responsibility to Protect within the Process of International Lawmaking”,
Yale Journal of International Law 2010, 477-478.
2033
See: C.G. BADESCU, Humanitarian Intervention and The Responsibility to Protect, Security and Human
Rights, New York, Routledge, 2011, 111-113; J. EATON, “An Emerging Norm? Determining the Meaning and
Legal Status of the Responsibility to Protect”, Michigan Journal of International Law 2010-2011, 790 et seq.
2034
C. FOCARELLI, “The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many
Ambiguities for a Working Doctrine”, Journal of Conflict and Security Law 2008, 205 et seq.
2035
“Report of the Secretary General, Implementing the Responsibility to Protect”, UN Doc. A/63/677, § 62.
2036
UN General Assembly Resolution 63/308.
2037
International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, Ottawa,
International Development Research Centre, 2001, 15; Report of the Secretary-General’s High-level Panel on
Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004), UN Doc. A/59/565,
§ 203; C.G. BADESCU, Humanitarian Intervention and The Responsibility to Protect, Security and Human
Rights, New York, Routledge, 2011, 114-117; J. BRUNNÉE and S. TOOPE, “Norms, Institutions and UN Reform:
the Responsibility to Protect”, Journal of International Law and International Relations 2005-2006, 132; J.
EATON, “An Emerging Norm? Determining the Meaning and Legal Status of the Responsibility to Protect”,
Michigan Journal of International Law 2010-2011, 801; G. EVANS, “From Humanitarian Intervention to the
Responsibility to Protect”, Wisconsin International Law Journal 2006-2007, 704; C.C. JOYNER, “‘The
Responsibility to Protect’: Humanitarian Concern and the Lawfulness of Armed Intervention”, Virginia Journal
of International Law 2006-2007, 704; M.W. MATTHEWS, “Tracking the Emergence of a New International
Norm: The Responsibility to Protect and the Crisis in Darfur”, Boston College International and Comparative
Law Review 2008, 147-148; A. PETERS, “Humanity as the A and Ω of Sovereignty”, European Journal of
International Law 2009, 524; T.G. WEISS, “R2P after 9/11 and the World Summit”, Wisconsin International
Law Journal 2006-2007, 743.
2038
M. PAYANDEH, “With Great Power Comes Great Responsibility? The Concept of the Responsibility to
Protect within the Process of International Lawmaking”, Yale Journal of International Law 2010, 481-482.

415
obligation that in such cases the international community has a duty to act.2039 This view is
echoed by ORFORD. She does not consider that responsibility to protect is in the first place
about establishing obligations, but, with reference to HART, is a power conferring rule. Only if
States are unable or unwilling to exercise their jurisdiction to protect their population can the
international community intervene and the doctrine of responsibility to protect sets out how it
can and what the limits are. On this account the principle of responsibility to protect does not
contain primary obligations, but only establishes that the international community has the
jurisdiction or the entitlement to act in certain situations.2040 This is indeed an important
aspect of the responsibility to protect: by stating that the international community has a
subsidiary responsibility to protect, the international community is entitled to consider which
measures are needed to protect persons against serious atrocities or has the jurisdiction.
Having a power to take measures does not mean that one has an obligation to take measures.
This is indeed the case for the responsibility to protect. It does not establish a duty for the
Security Council to act in case of genocide, crimes against humanity, war crimes and ethnic
cleansing. This is evidenced by the inclusion of the words “on a case-by-case basis” in the
World Summit Outcome Document.2041 Nevertheless, I submit that the responsibility to react
is more than a power-conferring rule and also is a conflict-rule between different
constitutional principles. A power-conferring rule can also determine that only a certain
authority can have the power to take specific measures. Other authorities therefore are
prohibited to take these measures and are limited to measures they can take without
authorisation. If the measures concern conflicts between different constitutional principles,
the decision of the competent authority may be a condition upon which one principle will
have precedence over the other principle. In case of the responsibility to protect, the
constitutional principles that are involved are on the one hand the peremptory norms that
prescribe respect for sovereignty and the prohibition of the use of force and on the other hand
the peremptory norms that protect the individual against abuse of power by his own
government. These principles have to be balanced against each and a principle might have
precedence over another if certain conditions are fulfilled. In case of the use of force in the
framework of the responsibility to protect the principle of protecting the peremptory rights of
individuals will have precedence over the prohibition of the use of force upon two conditions.
First, the violations have to amount to genocide, crimes against humanity, ethnic cleansing or
war crimes; second, the Security Council as the competent authority has authorised the use of
force. If the latter condition is not the case, then the prohibition of the use of force will have
precedence. This conflict rule is enshrined in international law. The Security Council has
already the power to authorise the use of force in case of a threat to international peace and
security. It adds to this that the Security Council may also authorise the use of force in case of
genocide, crimes against humanity, ethnic cleansing and war crimes. Hence, it mainly confers
upon the Security Council the power to act in such instances, but by doing so it also
establishes a precedence of the prohibition of the use of force over the protection of
peremptory rights of individuals in case the authorisation is not forthcoming.

2039
Ibid., 483.
2040
A. ORFORD, International Authority and the Responsibility to Protect, Cambridge, Cambridge University
press, 2011, 25-26; Id., “Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to
Protect”, Michigan Journal of International Law 2008-2009, 1008.
2041
UN General Assembly Resolution 60/1, World Summit Outcome Document, § 139.

416
439. Despite the limited normative importance the responsibility to protect will be an
important political tool that can be used to enhance existing mechanisms or to push for
acceptance of certain legal norms. It can provide arguments for a more effective Security
Council and a restraint for using the veto. In the field of jus cogens, the responsibility to
protect may act as a catalyser to implement the duties resulting from serious violations of
peremptory norms. If the international community is convinced that it has a responsibility to
protect people against genocide, crimes against humanity, war crimes and ethnic cleansing,
which may be qualified as serious violations of peremptory norms, than this may lead to a
more synchronized and effective implementation of the duty to cooperate in order to terminate
the serious violations, not to render aid or assistance or in the collective non-recognition of
the situation that results from the serious violations.2042 Furthermore, it might facilitate the
acceptance that not-directly affected States may take countermeasures as an implementation
of their responsibility to protect,2043 a mechanism that is contested in international law at this
point in time.2044 Finally, the responsibility to protect can serve as the political and moral
framework to further discuss refinement of the general principle that has been accepted at the
World Summit and provide a future, more specific preference rule that balances the principle
of sovereign equality, the prohibition of intervention and the use of force with the protecting
of fundamental rights. It can lead to the adoption of specific criteria that should guide the
Security Council or other entities in making decisions when and how to intervene. In this
respect the General Assembly may adopt a resolution setting out these criteria, similar to its
adoption of the Definition of Aggression in resolution 3314 (XXIX), which was meant to
assist the Security Council. Future, more detailed conflict-rules may identify the authorities
who can intervene if the Security Council fails, for instance the General Assembly under
resolution 377/V, the Uniting for Peace resolution.2045 Nonetheless, even the most subtle and
sophisticated conflict-rules might be strong enough to generate the general will to intervene to
halt serious violations of human rights, especially if it concerns an intervention through
military force. Current international law already determines that the Security Council has the
power to take measures under Chapter VII, but it has often refrained to do so.2046 More norms
and specific criteria for who, when and how forceful intervention should be authorized will
not change much since one can always escape responsibility by arguing that one is not the
right authority or that the proposed intervention does not respect the criteria. In any event,

2042
C.G. BADESCU, Humanitarian Intervention and The Responsibility to Protect, Security and Human Rights,
New York, Routledge, 2011, 133; C. STAHN, “Responsibility to Protect: Political Rhetoric or Emerging
Norm?”, American Journal of International Law 2007, 115-116.
2043
M. PAYANDEH, “With Great Power Comes Great Responsibility? The Concept of the Responsibility to
Protect within the Process of International Lawmaking”, Yale Journal of International Law 2010, 510-511.
2044
Supra, No. 272.
2045
However, recourse to the Uniting for Peace resolution is not evident and might legally be controversial,
especially on the issue whether the General Assembly may recommend the use of force: C. FOCARELLI, “The
Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working
Doctrine”, Journal of Conflict and Security Law 2008, 198; M. PAYANDEH, “With Great Power Comes Great
Responsibility? The Concept of the Responsibility to Protect within the Process of International Lawmaking”,
Yale Journal of International Law 2010, 502.
2046
G. EVANS, “From Humanitarian Intervention to the Responsibility to Protect”, Wisconsin International Law
Journal 2006-2007, 720-721; J. BRUNNÉE and S. TOOPE, “Norms, Institutions and UN Reform: the
Responsibility to Protect”, Journal of International Law and International Relations 2005-2006, 135; L.
BOISSON DE CHAZOURNES and L. CONDORELLI, “De la ‘responsabilité de protéger’ ou d’une nouvelle parure
pour une notion déjà bien établie”, Revue Générale de Droit International Public 2006, 16-17.

417
even if all criteria would be met, forceful intervention would always remain a last option, so
that States could perfectly defend that forceful intervention is not required because other
peaceful means are available to carry out the responsibility to protect. Even if there would be
in the future a duty to exercise the responsibility to protect in case of genocide, crimes against
humanity, war crimes and ethnic cleansing, the decision to respect one’s duty or not is not
determined by law, but is a moral issue. The fact that a duty has been enshrined in law and
that certain legal consequences are attached to the breach of an obligation might create a pull
towards compliance, but an actor may still decide to bear the consequences of that breach if
there are more cogent reasons not to respect the obligation. Hence, it will not be the
formulation of more specific norms that will prevent serious atrocities from happening or that
will lead to an adequate response of the international community, rather it will be decision-
making on the basis of moral criteria instead of (not) adopting decisions guided by pure self-
interest.

§2. The conflict between sovereign immunity and the enforcement of human rights

440. The last decade has witnessed an increase in cases brought before national, civil courts
to hold States accountable for serious violations of human rights, first mainly in the United
States, later in other Western countries. It was advocated that States should not enjoy
immunity in civil cases involving serious human rights violations that amount to norms of jus
cogens. The argument that was typically developed was that those norms are hierarchically
superior than State immunity, or that by violating those rights States had tacitly waived their
immunity before civil courts.2047 In most cases, however, the argument has not been retained
and immunity was upheld.2048 Therefore, at this point in time it seems that international law
has not introduced an exception to State immunity in case of violations of peremptory norms.
Moreover, the jurisdictions that did not upheld State immunity – Greece and Italy – were
dealing with claims of violations of peremptory norms that took place on their territory, in
which case international and national law does allow for revocation of immunity, regardless
of the peremptory character of the norm that has been breached.2049 In the Distomo case, the
fact that the violations occurred in Greek territory played a role in restricting State

2047
Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10 December 1998, §§ 154-
155; Joint Dissenting Opinion Judge ROZAKIS and CAFLISH, Joined by Judges WILDHABER, COSTA, CABRAL
BARRETO and VAJIĆ, Al-Adsani v. the United Kingdom, Application No. 35763/97, Merits, Judgment, 21
November 2001, Reports of Judgments and Decisions 2001-X, § 1; X. YANG, “Jus Cogens and State
Immunity”, New Zealand Yearbook of International Law 2006, 136; L.M. CAPLAN, “State Immunity, Human
Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory”, American Journal of International
Law 2003, 765 et seq; A.C. BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A
Proposed Exception to Immunity for Violations of Peremptory Norms of International Law”, California Law
Review 1989, 389 et seq.
2048
Supra, No. 170.
2049
Article 12 Vienna Convention on the Jurisdictional Immunities of States and Their Property (2004); Article
11 European Convention on State Immunity (1972); United States of America, Foreign Sovereign Immunities
Act (1976), 28 U.S.C. § 1605 (a)(5); United Kingdom, Sovereign Immunities Act (1978), Part I, Section 5;
Canada, State Immunity Act (1982), R.S.C. 1985, c. S-18, section 6; Australia, Foreign States Immunity Act
(1985), Part II, Section 13. Nevertheless, this might not reflect customary international law or be restricted in
scope: European Court of Human Rights, McElhinney v. Ireland, Application No. 31253/96, Merits, Judgment,
21 November 2001, Reports of Judgments and Decisions 2001-XI, § 38.

418
immunity.2050 In addition, the judgment in the Distomo case was later contradicted by the
Anotato Eidiko Dikastirio (the Special Supreme Court).2051 In Ferrini c. Repubblica federale
di Germania the Corte suprema di Cassazione also fell back on the fact that the violation was
committed on Italian soil.2052 Furthermore, in Ferrini and later decisions the Corte suprema di
Cassazione indicated that it did not apply existing customary international law, but that it was
shaping the formation of a new rule.2053 Moreover, there have been no express inclusions of
an exception to State immunity in national immunity Statutes.2054 The case law has in turn led
to a doctrinal debate with ardent supporters on both sides.2055

2050
I. BANTEKAS, “Case Report: Prefecture of Voiotia v. the Federal Republic of Germany, Case No. 137/1997,
Court of First Instance of Leivadia, October 30, 1997”, American Journal of International Law 1998, 766-767;
M. GAVOUNELI and I. BANTEKAS, “Prefecture of Voiotia v. the Federal Republic of Germany, Case No.
11/2000, Areios Pagos, May 4, 2000”, American Journal of International Law 2001, 200; A. GATTINI, “War
Crimes and State Immunity in the Ferrini Decision”, Journal of International Criminal Justice 2005, 224; E.
VOURNAS, “Prefecture of Voiotia v. Federal Republic of Germany: Sovereign Immunity and the Exception for
Jus Cogens Violations”, New York Law School Journal of International and Comparative Law 2001-2002, 639-
640.
2051
For the relevant text of the judgment: M. PANEZI, “Sovereign Immunity and Violation of Ius Cogens
Norms, AED 6/2002”, Revue Hellénique de Droit International 2003, 199.
2052
Ferrini c. Repubblica federale di Germania, sezione unite n. 5044/04, depositata l’11.03.2004, Diritto e
Giustizia del 16.03.2004, § 10 and § 12, at http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-
sentenza_corte_di_cassazione-11_03_05_001.doc; A. GATTINI, “War Crimes and State Immunity in the Ferrini
Decision”, Journal of International Criminal Justice 2005, 231. Later Italian case law has however not relied
that extensively on the fact that the commission of the violations of peremptory norms took place in Italian
territory or has dispensed with it all together: C. FOCARELLI, “Federal Republic of Germany v. Giovanni
Mantelli and Others: Italian Court of Cassation Opinion on Foreign Sovereign Immunity in Cases of Civil
Liability for International Crimes”, American Journal of International Law 2009, 125-126.
2053
M. POTESTÀ, “State Immunity and Jus Cogens Violations: The Alien Tort Statute against the Backdrop of
the Latest Developments in the ‘Law of Nations’”, Berkeley Journal of International Law 2010, 582; C.
FOCARELLI, “Federal Republic of Germany v. Giovanni Mantelli and Others: Italian Court of Cassation Opinion
on Foreign Sovereign Immunity in Cases of Civil Liability for International Crimes”, American Journal of
International Law 2009, 129.
2054
The closest comes the United States Foreign Sovereign Immunities Act, which does not grant immunity to a
State that is designated as a State sponsor of terrorism for personal injury or death caused by torture,
extrajudicial killing, aircraft sabotage or hostage taking, if the victim was a national of the United States:
Foreign Sovereign Immunities Act (1976), 28 U.S.C. § 1605A.
2055
In favour for restricting immunity: L. MCGREGOR, “State Immunity and Jus Cogens”, International and
Comparative Law Quarterly 2006, 437 et seq; J.A. GERGEN, “Human Rights and the Foreign Sovereign
Immunities Act”, Virginia Journal of International Law 1995-1996, 791; M. KARAGIANNAKIS, “State Immunity
and Fundamental Human Rights”, Leiden Journal of International Law 1998, 18-19; J.A. LEVY, “As between
Princz and King: Reassessing the Law of Foreign Sovereign Immunity as Applied to Jus Cogens Violators”,
Georgetown Law Journal 1997-1998, 2704; M. REIMANN, “A Human Right Exception to Sovereign Immunity
Some Thoughts on Princz v. Federal Republic of Germany”, Michigan Journal of International Law 1994-
1995, 406-407; A.C. BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A
Proposed Exception to Immunity for Violations of Peremptory Norms of International Law”, California Law
Review 1989, 389 et seq; A. ORAKHELASHVILI, “State Immunity and International Public Order Revisited”,
German Yearbook of International Law 2006, 327 et seq (especially 343-363); Id., “State Immunity and
Hierarchy of Norms: Why the House of Lords Got It Wrong”, European Journal of International Law 2007,
955 et seq. Against: H. FOX, The Law of State Immunity, Oxford, Oxford University Press, 2004, 525; A.
ZIMMERMAN, “Sovereign Immunity and Violations of International Jus Cogens – Some Critical Remarks”,
Michigan Journal of International Law 1994-1995, 433 et seq; X. YANG, “Jus Cogens and State Immunity”,
New Zealand Yearbook of International Law 2006, 131 et seq; A. GATTINI, “War Crimes and State Immunity in
the Ferrini Decision”, Journal of International Criminal Justice 2005, 234 et seq; M. POTESTÀ, “State
Immunity and Jus Cogens Violations: The Alien Tort Statute against the Backdrop of the Latest Developments

419
441. The main argument to set aside State immunity is the hierarchical superior position of
norms of jus cogens so that the incompatible customary norm of State immunity is set aside or
cannot be evoked for shielding a State from its violations of peremptory norms. I believe that
this argument is not persuasive and that serious objections can be made against this
contention. It is indeed correct that peremptory norms are hierarchically higher because the
values they protect are deemed the most fundamental values of the international
community.2056 Nevertheless, the hierarchy only exist between norms of jus cogens and norms
that derogate from peremptory norms. Between peremptory norms and norms that do not
derogate from them there is no conflict and no hierarchical relation will be involved. In this
respect, the peremptory norm is a customary, a conventional or a mixed norm with a special
characteristic that exists besides other norms of international law. This does not reduce the
concept of jus cogens to a purely technical rule of conflict since unlike other rules of conflict
it is the substantive importance of the values, accepted by the international community of
States as a whole, which decides the conflict in favour of the peremptory norms and invalidate
derogatory norms.

442. Concerning the possibility of restricting State immunity in civil cases, it must be
demonstrated that granting immunity for violations of peremptory norms would derogate
from the peremptory norm. This is not necessarily the case. A peremptory norm lays down a
substantive norm that may not be derogated from and effectively limits the law-making
capacity of States. States cannot create norms whose content is explicitly or implicitly going
against the substance of the peremptory norm. Thus, the conflict centres on the compatibility
of the substance of the derogatory norm with the substance of the peremptory norm.2057 In
case of derogation, the hierarchically higher peremptory norm will invalidate the derogatory
norm. From this it is clear that sovereign immunity and norms of jus cogens do not logically
conflict.2058 The issue does not concern the validity of a derogatory norm, but the enforcement
of a breach of a peremptory norm before national courts, often on the basis of universal, civil
jurisdiction. The issue of hierarchy of peremptory norms over other norms of international
law is thus not directly involved, since the issue of hierarchy is mainly relevant for the
validity of norms derogating from norms of jus cogens.2059 In order to succeed advocates of

in the ‘Law of Nations’”, Berkeley Journal of International Law 2010, 583-584; C. TOMUSCHAT, “L’immunité
des Etats en cas de violations graves des droits de l’homme”, Revue Générale de Droit International Public
2005, 57-58.
2056
Supra, Chapter 4, Section 3, § 2, A.
2057
M. POTESTÀ, “State Immunity and Jus Cogens Violations: The Alien Tort Statute against the Backdrop of
the Latest Developments in the ‘Law of Nations’”, Berkeley Journal of International Law 2010, 583.
2058
E. CANNIZZARO, “A Higher Law for Treaties?”, in E. CANNIZZARO (ed.), The Law of Treaties beyond the
Vienna Convention, Oxford, Oxford University Press, 2010, 439; A. GATTINI, “War Crimes and State Immunity
in the Ferrini Decision”, Journal of International Criminal Justice 2005, 236-237; C. FOCARELLI, “Federal
Republic of Germany v. Giovanni Mantelli and Others: Italian Court of Cassation Opinion on Foreign
Sovereign Immunity in Cases of Civil Liability for International Crimes”, American Journal of International
Law 2009, 126; C. TOMUSCHAT, “L’immunité des Etats en cas de violations graves des droits de l’homme”,
Revue Générale de Droit International Public 2005, 57-58; A. ZIMMERMAN, “Sovereign Immunity and
Violations of International Jus Cogens – Some Critical Remarks”, Michigan Journal of International Law
1994-1995, 438.
2059
In Chapter 4 the hierarchy of peremptory norms had effects on the binding character of the peremptory
norms to States that refused to accept the peremptory character of the norm and the fragmentation of
international law in different special regimes, none of which warrant the conclusion that State immunity cannot
be upheld. Concerning fragmentation it was also established that a norm should as far as possible be interpreted

420
the restriction of State immunity will thus have to demonstrate that there is a peremptory
norm that States are obliged to exercise jurisdiction and restrict immunities, even if in most
cases there is no direct link with the State of the court pronouncing on the issue.2060 In the
absence of unambiguous and widespread State practice and opinio juris proponents of the
restriction of State immunity will have a hard time to prove the existence of such a norm. It is
therefore not surprising that they resort to a deductive reasoning starting from the higher
importance of the values protected by peremptory norms. From this they derive that every
norm which might affect the effective enforcement of the peremptory norm conflicts with jus
cogens and should not be applied (or is it declared invalid?). Nevertheless, this significantly
expands the meaning of “conflict” as originally envisaged by jus cogens and laid down in
positive law.2061 The proponents of the restriction of State immunity in fact argue for the
existence of a special effect of peremptory norms. As such there is no problem in attributing
new effects to norms of jus cogens, which indeed has happened in the area of State
responsibility, first by considering peremptory norms as obligations erga omnes and later by
introducing additional obligations in case of serious violations of peremptory norms.
However, in such case a purely deductive reasoning would not suffice to establish a legal
effect of jus cogens under positive law.

443. Additionally, the limitation of sovereign immunity has been justified on other grounds.
Firstly, it has been argued that upholding immunity would amount to recognizing a breach of
a peremptory norm which would run contrary to the obligation of Article 41 Draft Articles on
Responsibility of States for Internationally Wrongful Acts.2062 However, that provision only
applies to serious violations of peremptory norms and not every violation will be serious
which is defined as a “gross or systematic failure”.2063 Furthermore, it has been established
that this recognition is primarily suitable for illegal acquisitions of territory but not for

consistently with a peremptory in order to avoid the proclamation of invalidity: supra, Chapter 4, Section 3, § 2,
B, 2.
2060
House of Lords, Ron Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, Judgment of 14 June
2006, [2006] UKHL 26, § 45; X. YANG, “Jus Cogens and State Immunity”, New Zealand Yearbook of
International Law 2006, 137, 143-144 and 150-153; M. POTESTÀ, “State Immunity and Jus Cogens Violations:
The Alien Tort Statute against the Backdrop of the Latest Developments in the ‘Law of Nations’”, Berkeley
Journal of International Law 2010, 584. REIMANN, while advocating for an exception to immunity, shies away
from this conclusion: States should remain free in all cases to apply immunity or not: M. REIMANN, “A Human
Right Exception to Sovereign Immunity Some Thoughts on Princz v. Federal Republic of Germany”, Michigan
Journal of International Law 1994-1995, 421. Making abstraction from the issue of justiciability, a
discretionary freedom to award immunity contradicts the hierarchy argument and the assertion that there is a
conflict between the two: even if States can always grant immunity for serious violations of human rights
despite their hierarchically higher status, that status has become irrelevant as an argument to limit State
immunity in such cases.
2061
See for a broad notion of conflict: A. ORAKHELASHVILI, “State Immunity and International Public Order
Revisited”, German Yearbook of International Law 2006, 343; Id., “State Immunity and Hierarchy of Norms:
Why the House of Lords Got It Wrong”, European Journal of International Law 2007, 957.
2062
See, for instance: Ferrini c. Repubblica federale di Germania, sezione unite n. 5044/04, depositata
l’11.03.2004, Diritto e Giustizia del 16.03.2004, § 9, at http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-
sentenza_corte_di_cassazione-11_03_05_001.doc; A. ORAKHELASHVILI, “State Immunity and International
Public Order Revisited”, German Yearbook of International Law 2006, 354-355 and 358; Id., “State Immunity
and Hierarchy of Norms: Why the House of Lords Got It Wrong”, European Journal of International Law
2007, 963-964.
2063
Supra, No. 276.

421
violations of human rights and humanitarian law since those violations do not create a
situation that is meaningful to recognize as legal.2064 In addition, the existence of a situation
indicates that the effects of the violation continue to exist after the commission of the
breach.2065 However, most violations of peremptory norms in human rights and humanitarian
law concern instantaneous breaches that end after their commission. In any event, by not
exercising jurisdiction courts do not recognize the legality of any situation that has been
created since they do not pronounce on the merits, but merely indicate that they are not the
appropriate forum to settle the case.2066

444. Another argument levied against maintaining sovereign immunity for violations of
peremptory norms is to consider violations of peremptory norms not as official State acts for
the purpose of State immunity. Although those acts are done in official capacity by members
of the State apparatus, States could not claim immunity for those acts since they have no
power to violate those norms in the first place. This is a promising and sophisticated
argument, which is partially based on international criminal law that refuses to grant
immunity ratione materiae for official acts that amount to international crimes. However, the
problem is that this limitation on immunity in case of State immunity is nor recognized in
State practice, which solely makes a distinction between acta jure imperii and acta jure
gestionis; each act of a State falls in one of these categories: tertium non datur. Since it is
hard to argue that serious human rights violations are commercial acts, they would fall under
acta jure imperrii and lead to immunity. Although I agree that the current distinction is too
crude and should be amended, international law as it is currently into force does adhere to this
differentiation, which makes violations of norms of jus cogens fall in the category of acta jure
imperii.

445. A related argument to the foregoing is that by violating a peremptory norm a State has
implicitly waived its immunity.2067 However, a waiver of immunity for violations of
peremptory norms implies that one normally has immunity for such violations, since one
cannot waive what one does not have.2068 This leads to the absurd result that whenever one
violates a peremptory norm one implicitly waives an immunity that would only be upheld as
long as one would respect peremptory norms, in which case having immunity has no real
purpose. Furthermore, it is hard to maintain that a State has implicitly waived its immunity
purely by breaching norms of jus cogens, without any other indications of waiver.2069

446. The previous arguments indicate that the peremptory nature of a norm that has been
violated does not lead to the restriction of State immunity. Nevertheless, the situation might
be different if the right to access to a court would constitute a peremptory norm. In that case
State immunity would directly conflict with a peremptory norm and should at least have no

2064
Supra, No. 279.
2065
A. GATTINI, “War Crimes and State Immunity in the Ferrini Decision”, Journal of International Criminal
Justice 2005, 236.
2066
Supra, No. 280.
2067
See, especially: A.C. BELSKY, M. MERVA and N. ROTH-ARRIANZA, “Implied Waiver under the FSIA: A
Proposed Exception to Immunity for Violations of Peremptory Norms of International Law”, California Law
Review 1989, 389 et seq.
2068
X. YANG, “Jus Cogens and State Immunity”, New Zealand Yearbook of International Law 2006, 155.
2069
See: Princz v. Federal Republic of Germany, 26 F.3d. 1174 (D.C. Cir. 1994).

422
effect. I have indeed found that the right to a fair trial is a strong candidate for a peremptory
norm. Although the peremptory character of the norm seems limited to a right to a fair trial in
criminal proceedings, it can be defended that at least the core of the right applies to civil
cases, especially if a civil case is the only remedy available for a breach of a peremptory
norm. Moreover, in line with the foregoing, a constitutionalist approach to jus cogens
advances the requirement of the existence of effective remedies for breaches of peremptory
norms that function as the constitutional norms of the international community. Nevertheless,
even if the right to fair trial is a peremptory norm applicable in criminal and civil proceedings,
I submit State immunity can still be upheld since the issue would involve multiple peremptory
norms that need to be balanced.

447. The purposes of State immunity are inter alia the prevention of unwarranted
interference in the sovereignty of a foreign State and the protection of the principle of
sovereign equality.2070 Linked to the latter is the self-determination of people: States are the
result of the self-determination of their people which should not be judged by the authorities
of other people.2071 The principle of non-intervention is not applicable since the duty of non-
intervention is limited to domains that are not regulated by international law.2072 Nonetheless,
the issue of sovereign equality of States is involved and it would go against the principle of
sovereign equality of States to give a State the power to judge other States over alleged
breaches of international law. Hence, there will be a need to balance two peremptory norms,
the right to a fair trial and the sovereign equality of States and to formulate a conflict-rule.
Thus, national courts and national legislators may opt to give the principle of sovereign
equality precedence over the right to start civil proceedings against foreign States before their
courts.

448. The precedence of sovereign equality over the enforcement of fundamental human
rights would as such not be inconsistent with a constitutionalist approach of jus cogens. A
constitutionalist approach would indeed require a remedy, but not necessary the remedy of
initiating civil proceedings against foreign States. In this respect, a constitutionalist approach
may favour that States undertake actions against breaches of peremptory norm at the
international level by invoking State responsibility, bringing the issue to the attention of an

2070
Al-Adsani v. the United Kingdom, Application No. 35763/97, Merits, Judgment, 21 November 2001,
Reports of Judgments and Decisions 2001-XI, § 54; Court of Appeal for Ontario, Bouzari v. Islamic Republic of
Iran, 30 June 2004, 124 International Law Reports 427, § 95; House of Lords, Regina v. Bartle and the
Commissioner of Police for the Metropolis and Others - Ex Parte Pinochet, 38 International Legal Materials
1999, 644 and 645 (Lord Millet); A. GATTINI, “To What Extent are State Immunity and Non-Justiciability
Major Hurdles to Individuals’ Claims for War Damages”, Journal of International Criminal Justice 2003, 353;
A. ZIMMERMAN, “Sovereign Immunity and Violations of International Jus Cogens – Some Critical Remarks”,
Michigan Journal of International Law 1994-1995, 440; M. REIMANN, “A Human Rights Exception to
Sovereign Immunity: Some Thoughts on Princz v. Federal Republic of Germany”, Michigan Journal of
International Law 1994-1995, 421; M. KARAGIANNAKIS, “State Immunity and Fundamental Human Rights”,
Leiden Journal of International Law 1998, 14; C. TOMUSCHAT, “L’immunité des Etats en cas de violations
graves des droits de l’homme”, Revue Générale de Droit International Public 2005, 52; M. PANEZI, “Sovereign
Immunity and Violation of Ius Cogens Norms, AED 6/2002”, Revue Hellénique de Droit International 2003,
208.
2071
C. TOMUSCHAT, “L’immunité des Etats en cas de violations graves des droits de l’homme”, Revue Générale
de Droit International Public 2005, 64.
2072
M. KARAGIANNAKIS, “State Immunity and Fundamental Human Rights”, Leiden Journal of International
Law 1998, 22.

423
international organization, or seizing relevant international dispute-settlement mechanisms.
Since the alleged violation of a peremptory norm affects the international community as a
whole it is preferably at that level that it should be settled. Furthermore, violations of
peremptory norms are often international crimes, in which case the perpetrators can be
prosecuted at the national or international level, with the possibility of the victim to obtain
compensation. International crimes committed by State officials when they were in office are
not shielded by immunity before national courts.2073 Moreover, pursuant to Article 27 (2)
Rome Statute of the International Criminal Court State officials that are still in function
cannot rely on immunities granted under national or international law. National legislation
may provide for the possibility for the victim to demand compensation and at the international
level a victim may ask and obtain compensation before the International Criminal Court.2074
This leads to an inconsistent situation in which immunity may not be granted in criminal
proceedings, but will be granted in civil proceedings. Nevertheless, sovereign equality is an
attribute of a State, not of its leadership and international law as it currently stands has opted
to discard the immunity of State officials for international crimes, while retaining State
immunity.

449. At this point in time most courts have chosen to uphold State immunity for violations of
international law. Nevertheless, this does mean that at this point in time a conflict-rule rule
has been established at the international level that would require the precedence of the
principle of sovereign equality over the enforcement of peremptory norms in human rights
law or international humanitarian law. Rather, the issue of sovereign immunity is still
confronted with uncertainty, with some courts relying on international law and others on
national statutes. It has even been doubted that a customary norm on State immunity
exists.2075 Thus, the existing case law merely indicates a trend in the formulation of a future
preference rule, a trend that can still be turned. The issue has now been brought and argued
before the International Court of Justice and it can only be hoped that the Court develops a
well-reasoned judgment, in which it balances the different principles and situations involved.
In any event, the judgment will in all likelihood not end the debate, but can serve as a starting
point, in which any future conflict-rule is further fine-tuned. The existing case law moves
towards the development of an absolute conflict rule, a rule that gives one principle
precedence over a competing principle in all circumstances. Nevertheless, I believe that any
future conflict-rule should balance the two principles more equitably by the inclusion of a
conditional precedence clause. Such a clause might provide that victims should be able to sue
the foreign State in case no alternative remedy is available. The State that has committed the
breach has the duty to guarantee effective remedies for violations of peremptory norms. If it
refuses to provide for civil or criminal remedies before its courts and other States have
declined to open criminal procedures or to invoke that State’s responsibility at the
international level, civil proceedings against the State that committed the violation is the only

2073
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Rep.
2003, § 60; House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others -
Ex Parte Pinochet, 38 International Legal Materials 1999, 594-595 (per Lord Browne Wilkinson), 626 (Lord
Hope of Craighead) and 651 (Lord Millet).
2074
Article 75 Rome Statute of the International Criminal Court (1998).
2075
L.M. CAPLAN, “State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy
Theory”, American Journal of International Law 2003, 757 et seq; A. ORAKHELASHVILI, “State Immunity and
International Public Order Revisited”, German Yearbook of International Law 2006, 338 et seq.

424
available effective remedy left for the victim and should be available. This subsidiary
possibility to sue a foreign State for violations of peremptory norms strikes in my view the
right balance between the principle of sovereign equality and the right to a fair trial since the
State that allegedly has committed the violation has the chance to avoid being judged by
another State; at the same time an effective remedy is guaranteed in case no alternatives are
available. In addition, this proposal for a conditional precedence clause finds support in the
case law of the European Court of Human Rights. Although the European Court of Human
Rights upheld State immunity in Al-Adsani v. the United Kingdom, in other judgments the
existence of other remedies played a role in finding no violation of the right to a fair trial. In
Waite and Kennedy v. Germany the Court stated that immunity of an international
organization could only be upheld if the organization provided in remedies.2076 This leads to
the rather inconsistent result that if a violation of a peremptory norm is jointly committed by a
State and an international organization, the former will enjoy immunity, while the latter may
not if it does not have its own procedures. Furthermore, in McElhinney v. Ireland the Court
also upheld immunity because it did not constitute an unreasonable barrier, but unlike Al-
Adsani the victim had at least the possibility to commence proceedings in the United
Kingdom.2077 On the other hand, the Court upheld the absolute immunity of members of
parliament for statements made during debates and interventions, even if those statements
cause serious detriment to individuals.2078 The right to candidly debate is a necessary aspect of
any democratic society and should thus be protected as far as possible. However, considering
the issues involved, the choice of the European Court of Human Rights in Al-Adsani v. the
United Kingdom to uphold State immunity over the right to access to a court is not as evident
as the succinct reasoning suggests. In light of these judgments I am of the opinion that the
decision in the case of Al-Adsani v. The United Kingdom did not adequately balance the two
competing principles or that the judgment should at least have given more reasons why the
principle of sovereign equality trumps the right to a fair trial in all circumstances.

SECTION.5. CONCLUSION

450. The principle of sovereign equality of States, the prohibition on the use of force, the
prohibition of intervention into the internal affairs of a State, the right of peoples to self-
determination and the fundamental norms of human rights and humanitarian law have all been
considered peremptory norms in State practice. Those norms can all be related to each other
by adopting the perspective of peremptory norms as the constitutional norms of the
international community. Constitutional norms typically lay down the different authorities,
the political and legal framework in which those authorities interact and the limits to law-
making that protect the subjects of the legal system. At the international level the political
framework is found in the Charter of the United Nations which establishes that States are the
main authorities of the international society, that they are equal and that they are founded on
the exercise of the self-determination of their peoples; in their inter-State relations they have

2076
Waite and Kennedy v. Germany, Application No. 26083/94, Merits, Judgment, 18 February 1999, Reports
of Judgments and Decisions 1999-I, § 68.
2077
McElhinney v. Ireland, Application No. 31253/96, Merits, Judgment, 21 November 2001, Reports of
Judgments and Decisions 2001-XI, § 39.
2078
A. v. the United Kingdom, Application No. 35373/97, Merits, Judgment, 17 December 2002, Reports of
Judgments and Decisions 2002-X, § 83.

425
to refrain from the use of force, settle their disputes peacefully and not interfere in the internal
affairs of other States. Nevertheless, whereas States should through the exercise of self-
determination of their people be able to autonomously and peacefully cooperate to solve
international problems by law-making, they at the same time must respect the fundamental
human rights and, in case peace breaks down, the most important norms of international
humanitarian law. In other words, they have to respect at all times the “elementary
considerations of mankind”, in particular the prohibition of genocide, the right to life, the
right to be free from slavery and similar practices, the prohibition of torture and inhuman or
degrading treatment or punishment, the right to liberty, the right to a fair trial and the
prohibition of discrimination.
Conflicts between the two categories of peremptory norms might arise since both have a
different purpose, the first to determine the lawful authorities and the norms that govern the
relationships between authorities, the second to limit the exercise of power by these
authorities. By regarding peremptory norms as constitutional norms one could adopt the
solution to such conflicts used in constitutional law. As ALEXY has convincingly
demonstrated constitutional norms are principles that need to be balanced by a conflict-rule
that may set out the conditions upon which one principle will have precedence over another. I
looked into two areas of conflict where a conflict rule might be present. First, there is a
conflict between the peremptory prohibition of the use of force and the protection of people
against serious serious violations of peremptory norms. The conflict has been recently
addressed by the concept of the “responsibility to protect”. Despite its limited importance for
international law, the responsibility to protect has unambiguously confirmed that the
international community has the authority to take measures to prevent and act against serious
atrocities, if necessary through the use of force, but only when force is authorised by the
Security Council. Thereby a conflict rule has been implicitly created: States may only give the
protection of peoples against genocide, crimes against humanity, ethnic cleansing and war
crimes precedence over the prohibition of the use of force in case of Security Council
authorisation. A second domain in which a conflict-rule may be found is that of State
immunity for violations of peremptory norms. The principles involved are the sovereign
equality of States and effective redress for violations of peremptory norms. Most judgments
have opted to give the principle of sovereign equality priority by formulating an absolute
conflict-rule. It is unlikely that this solution is part of international law and for a future
conflict rule I advocated the insertion of a conditional preference clause that would allow for
the setting aside of State immunity in case no other mechanism for redress is available.

451. Regarding norms of jus cogens as constitutional norms allows bringing the different
norms proposed in State practice in one, meaningful framework, that of constitutional norms
of the international community. However, the constitutional perspective may additionally help
in identifying candidate peremptory norms. Human rights for which no significant State
practice expressing an opinio juris cogentis can be found, may be retained because of their
constitutional weight, as I did with the right to be free from arbitrary deprivation of liberty
and the right to fair trial. However, it has to be stressed that if more in-depth research
focusing on a candidate peremptory norm proves that the candidate norm is not part of jus
cogens, it may not be retained despite its constitutional dimension. In addition, the
constitutional framework equally allows to adopt the method of constitutional reasoning,
namely to deduce from general rights more concrete norms, as the derivation of peremptory
international humanitarian norms from broadly phrased (human) rights demonstrated. In this
respect, I wish to stress that other norms than those retained in this chapter may be deduced
from one or from multiple peremptory norms and that the norms I have retained are mere
illustrations of peremptory norms and thus not an exhaustive list of peremptory norms.

426
 SUMMARY, CONCLUSIONS AND FINAL REFLECTIONS

SUMMARY

452. The overall purpose of the thesis was to devise a theory that would be the start of a
comprehensive theory that was “just right” and that would be able to answer the research
questions. I therefore started with an analytical dissection of Article 53 Vienna Convention on
the Law of Treaties and ended with the finding that jus cogens contains the constitutional
norms of the international community and that a constitutionalism based on jus cogens is
firmly embedded in liberalism and offers a Kantian perspective on international law.
Considering the point of departure and the final destination of the journey some beacons to
highlight the road travelled will first be set out before concluding and offering final
reflections. Throughout the thesis I tried to provide answers to the questions of D’AMATO
and BINDSCHEDLER on the issue of jus cogens, namely 1) How is a peremptory norm created?
2) How can it be changed? And 3) what is its purpose or function.

453. In order to provide an answer to the first question the thesis started with a positivist
account of jus cogens. I considered Article 53 to constitute a Hartian rule of recognition that
should allow identifying valid peremptory norms. By examining the various elements of the
definition of jus cogens the contours of peremptory norms would be established and it would
be clear how it can be created or how such a norm may emerge. First, the inquiry has revealed
that jus cogens norms can only be created through the sources of custom and treaty. General
principles of law (recognized by civilized nations) are excluded as a source because either
they are judge-made (and the International Court of Justice does not represent the
international community of States as a whole), or they are principles that are inherent to each
and every legal system and cannot be derogated from. However, this does not entail that legal
principles as a type of legal norms are excluded and that jus cogens norms can only be rules.
Legal principles, i.e. optimization requirements or norms that should be fulfilled as far as is
factually and legally possible, cannot only be located in general principles of law, but equally
can be customary or conventional in origin.
Second, those customary or conventional norms have to be accepted or recognized by
the international community of States as a whole as part of jus cogens, i.e. norms from which
no derogation is permitted. The requirement of acceptance and recognition has been
introduced at the Vienna Conference with the aim to exclude any natural law interference
from the concept of jus cogens. After the atrocities of the Second World War States were
generally willing to accept that treaties could be invalidated if they would infringe certain
important ethical norms of the international society. Nevertheless, mostly Western States were
equally concerned about the danger of frivolous claims to escape treaty obligations based on
supposedly peremptory norms that would be founded upon a unilateral claim of what is
morally just. This would be alleviated if the international society would constitute a dense
community where its members share the same values. Although this community might have
existed in the nineteenth century when international law was dominated by Western States
with the same political and economic background, the Cold War and decolonization had in the
meantime diversified the international society. Added to this was the defiance of the newly
independent countries that aimed to undo the colonial order of the past. In order to avoid one-
sided claims and the imposition of values of one group to the others, the requirement of
acceptance and recognition of the international community of States as a whole was
introduced.
The thesis established that the contemporary international community is not solely
comprised of States, but also of international organizations, peoples, individuals, multi-
national companies, non-governmental organizations... . Nonetheless, Article 53 designates

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the collectivity of States as the authorities to promulgate peremptory norms. This is in line
with the still primordial role states have in international law-making. Other actors of the
international society are not passive by-standers, however, and may influence States to adopt
certain norms as peremptory norms of international law. The international community will
have certain values that are the result of the interaction of the different actors. The most
important values may be bestowed with peremptory status by the collectivity of States, but it
cannot be guaranteed that all the values of the international community will be protected by
jus cogens. Hence, there might be a gap between the values that States have accepted to be
protected by jus cogens and values that are not, but are deemed essential by other components
of the international community.
The mechanism through which it guarantees those values is the invalidation of all
derogatory normative acts. The prohibition of derogation implies that a limited number of
States (or international organizations) cannot perform normative acts that are inconsistent
with peremptory norms. Originally, derogation referred to treaties that would contradict jus
cogens, as the Spanish version of Article 53 demonstrates. Nevertheless, special customary
norms and unilateral act that create legal effects may also derogate from jus cogens. Limiting
the impermissibility of derogation to the law of treaties and upholding the validity of these
acts would lead to the undermining of the community interests norms of jus cogens aim to
protect. Hence, the impermissibility of derogation covers all law-making acts of a limited
number of States and international organizations as the authorities in international law that are
empowered with law-making.
In conclusion, the thesis formulates that peremptory norms are created by the
recognition or acceptance of all States that a norm of general international law should be
protected from derogation. These are evidently pure formal criteria that may not adequately
assist in the identification of peremptory norms, since such recognition is typically the result
of the substantive value the norm protects. Nevertheless, this does not undermine that Article
53 is a rule of recognition, since such a rule may be unclear and need further interpretation

454. Considering the foregoing conclusion it is not surprising that other criteria have been
formulated on how to identify a valid peremptory norm. In this respect Chapter 2 inquired
whether additional criteria other than the formal acceptance and recognition by the
international community of States can be retained. One of the most commonly advanced
criteria is that peremptory norms protect community interests. Although it is correct that all
peremptory norms protect a community interest, not all community interests will be protected
by jus cogens. Furthermore, the issues which community should be protected by a peremptory
norm and how interests are balanced against each other depend on the law-making acts of the
international community of States as a whole. The criterion of community interests is
therefore too vague to be retained. A second commonly proposed criterion linked to the
previous one is that jus cogens norms protect the most fundamental ethical values of the
international community. Even if there is a close connection between moral principles and
norms of jus cogens the issue remains how to derive those norms from moral principles. This
implies that moral principles can be objectively determined, so that the peremptory norms of
international law can be unequivocally identified. Therefore, proponents of this criterion have
to adopt moral realism. Nevertheless, in the thesis it has been argued that moral realism is
difficult to defend since it requires a method to ascertain the correct moral virtues – a method
that does not exist at the present time – and since it entails that persons act upon moral virtues
after learning their content. A last criterion is the absolute character of a norm. Treaties may
establish that a certain norm cannot be derogated from. This might indicate jus cogens, but the
litmus test is whether derogation outside the conventional framework is deemed to be
possible. Furthermore, non-derogation in human rights treaties does not necessarily imply

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peremptory status since non-derogation in human rights treaties is fundamentally different
than the impermissibility of derogation of jus cogens. I therefore concluded that no other
criterion, in particular no substantive criterion, allows identifying peremptory norms and that
the existence of a peremptory norm depends on the acceptance and recognition of the
international community of States as a whole. We remain stuck with the formalistic criteria of
Article 53.

455. Nevertheless, the formalistic criteria to identify when a valid peremptory norm has
emerged allow in practice to identify valid peremptory norms. Therefore, in Chapter 3 I
inquired how the emergence of a peremptory norm concretely takes place and how they can
be abolished and modified. If there is no substantive criterion available, then at least the
acceptance or recognition of a peremptory norm should be able to be ascertained. At first, this
seems problematic since States are not corporeal entities. However, States function through
human beings and the actions of human beings may be attributed to the States. In the thesis I
have argued that the identification of a norm as peremptory can be achieved through a method
that is similar to identifying a customary norm. Customary norms come into existence through
State practice that is accompanied with a conviction that the practice is performed because it
should lead to the creation of a customary norm (which I labelled the opinio necessitatis); an
existing customary norm equally has to elements, practice and opinio juris, or the belief that
the practice is performed because it is required by an existing customary norm. Similarly, a
peremptory norm comes into existence if States accept that a norm of general international
law – a custom or a conventional norm – should become a peremptory norm, i.e. when there
is an opinio necessitatis juris cogentis, that subsequently becomes nearly universally shared;
the individual expressions of opinio necessitatis juris cogentis become one collective opinio
juris cogentis. The main difference is that opinio juris bestows normative status on a general
practice, whereas an opinio juris cogentis gives a specific characteristic (non-derogation)
upon an already existing norm. An opinio juris cogentis can be identified in a similar manner
as an opinio juris. In Chapter 1 the thesis examined both elements of custom and held that
opinio juris can be derived from State practice. State practice in turn is very wide: it does not
only include acts, but equally omissions, declarations, national legislation and case law, and
resolutions of international organizations. By analogy, whether a norm of general
international law is part of jus cogens may be determined by looking at declarations, national
laws, case law and resolutions since those acts are most likely to express an opinio juris
cogentis. Chapter 3 illustrated that by looking at those instances of practice an opinio juris
cogentis can be divulged.
Peremptory norms can only be abolished or negatively modified by a collective law-
making act by (nearly) all States. Consequently, the abolition of a peremptory norm or an
amendment that limits the scope of the peremptory norms is virtually impossible to achieve.
Peremptory norms therefore solidify the basic norms of the international community against
normative acts of certain States that derogate from peremptory norms. If those States wish to
abrogate or modify peremptory norms they will have to convince all other States to accept
this. At the same time, derogations that expand or build upon existing are perfectly allowed. A
limited group of States can advance such norms that gradually can become accepted or
recognized by all other States. In sum, jus cogens allows the further progression and evolution
of the cardinal principles of international law and makes it nearly impossible to abrogate or
negatively modify them. Nonetheless, abrogation or negative derogation remains possible and
might occur when the international legal system would undergo a major upheaval.

456. Chapers 1 to 3 have provided the answer to the question how such norms are created
and how they can be abolished and modified. The gist of the answer was that one has to focus
upon and identify the opinio juris cogentis of the international community of States. In order

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to alleviate this burden, which requires looking into the practice of approximately two
hundred States, the thesis equally inquired into the consequences and function of jus cogens.
If only certain consequences are attached to peremptory norms, the occurrence of those
consequences will indicate the existence of a peremptory norm. Hence, Chapter 4 has listed
the consequences of peremptory norms in the law of treaties and beyond. The consequences
of jus cogens within the law of treaties are well-known. Treaties that derogate from an
existing peremptory norm are void ab initio and treaties conflicting with an emerging
peremptory norm terminate and become void. The Vienna Convention on the Law of Treaties
has also introduced a dispute settlement procedure for the invalidation and termination of
treaties, but the procedure is completely inapt because it limits the demand of invalidity of the
treaty to the parties to the treaty. However, since jus cogens norms protect the fundamental
interests and values of the international community, it is not solely a concern of the parties
that have concluded an invalid treaty and it cannot be expected that States that have willingly
concluded an invalid treaty will subsequently challenge its validity. By considering disputes
on jus cogens as a bilateral matter between the parties to an invalid treaty the procedure has
undermined any effective implementation of jus cogens in the law of treaties. In would have
been better to allow challenges of invalidity by all parties to the Vienna Convention. In the
end, it seems to be fear of abuse that motivated the adoption of this particular dispute
settlement procedure and fear is rarely a good advisor.
More important are the consequences of jus cogens outside the law of treaties. As such
jus cogens was initially confined to the law of treaties, but if it protects the fundamental
values of the internationally community, there is no reason to limit it only to the law of
treaties. If this is the case, evidently the question of hierarchy arises. It is commonly accepted
that jus cogens has introduced a hierarchy, although this is not necessarily evident.
Peremptory norms are customary or conventional norms that have a certain characteristic that
other norms do not have, the impermissibility of derogation. They do not derive from a
hierarchical superior formal source. Nonetheless, hierarchy is introduced by jus cogens
because in case of a normative conflict peremptory norms will be upheld precisely because
they protect the fundamental community values. The consequences of hierarchy are that all
States are bound by peremptory norms and that fragmentation is limited. Chapter 4 also
looked into the consequences of jus cogens in the law on State responsibility and found that
peremptory norms and obligations erga omnes are the same. This implies that all States have
a legal interest in upholding norms of jus cogens. This is more in line with the community
dimension of jus cogens than the procedure of the Vienna Convention on the Law of Treaties.
Nonetheless, there are significant jurisdictional hurdles before the International Court of
Justice and countermeasures for serious breaches of peremptory norms are not generally
accepted. Finally, the law on State responsibility provides for limited consequences in cases
of serious breaches of peremptory norms.

457. In Chapter 5 I delved into the function of peremptory norms into the international legal
system in order to answer the third question. The question of the purpose of a legal concept
cannot be provided by positive law, but the function of a legal concept must be compatible
with its characteristics and the consequences it has under positivist law. The question of the
purpose of jus cogens may indicate which norms belong to jus cogens and thus alleviate the
burden of examining State practice for an opinio juris cogentis. If a legal concept has a certain
unique function, than norms that fulfil that function will belong to that concept. The thesis
looked into two contending perspectives on jus cogens – jus cogens as ordre public or
constitutional norms – that both can be defended. However, I found that the constitutional
perspective on jus cogens does more justice to the concept and its consequences. Ordre public
implies that international norms are all based upon consent and that treaties are the equivalent

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of contract at the national level, whereas international law is not solely based upon consent
and not all treaties can be considered the equivalent of contracts. Furthermore, the
consequences attached to jus cogens are more in line with the perspective of jus cogens as
peremptory norms. Considering peremptory norms as the constitutional norms of the
international community is not a neutral enterprise and need to be legitimized. I demonstrated
that constitutionalism based on jus cogens is enshrined in the liberal tradition that recognizes
diversity, that promotes tolerance and that believes that despite the diversity different societies
can peacefully coexist and agree on universal values; a constitutionalism based on jus cogens
equally advances a Kantian perspective on international law. In Eternal Peace and other
works KANT advanced that eternal peace would be reached if the international state of nature
would be overcome through the spread of republicanism, the creation of the federation of free
States (the governing of international relations through law) and cosmopolitan right. Although
KANT’s theory and a constitutionalism based on jus cogens do not perfectly overlap, I have
argued that there are significant similarities. A constitutionalism based on jus cogens
established a state of law that no State can validly set aside; it also advances republican values
on the international and national level, by protecting certain human rights norms against
derogation, but not by excluding certain States. It thereby expresses its belief in the possibility
of a peaceful agreement between States with different cultural, social, political and economic
background on universally binding norms on the common good for mankind.

458. After providing an answer to the questions of how peremptory norms are created, how
they can be changed and what their function is in the international legal system, in Chapter 6 I
tried to identify peremptory norms taking into account existing State practice, their
consequences in positive international law and their functioning as the constitutional norms of
the international community. Ideally, a thorough examination of State practice should lead to
identify an opinio juris cogentis as to the peremptory nature of certain norms. However,
provided States have expressed their opinio juris cogentis, it is practically burdensome to
inquire into the practice of nearly two hundred States. The constitutional aspect of peremptory
norms might alleviate this task. Therefore I opted to depart from the constitutional character
of peremptory norms in order to identify which norms of international law belong to jus
cogens and to support the retained peremptory norms with State practice, if available. In this
respect, constitutions enshrine the political framework of a society and the limits to law-
making. At the international level those norms can be found in the Charter of the United
Nations, human rights law and humanitarian law. The practice I have found indeed indicates
that States consider these areas of law to contain peremptory norms. The constitutional
dimension of jus cogens brings all these norms from these different legal areas into one
overarching, constitutional framework. Furthermore, by stressing the constitutional aspect of a
certain norm, it permitted to identify norms that would likely belong to jus cogens, even when
an explict opinio juris cogentis cannot be divulged. By combining existing State practice and
the constitutional dimension of a norm I identified the principle of sovereign equality, the
prohibition on the use of force, the prohibition of intervention in the internal affairs of a State,
the right to self-determination of peoples, the prohibition of genocide, the right to life, the
prohibition of slavery, the prohibition of torture and inhuman or degrading treatment or
punishment, the right to not to be arbitrarily deprived of one’s liberty, the right to a fair trial
and the prohibition of discrimination as peremptory norms. Other peremptory norms might be
deduced from one of these norms or from a combination of these norms. Finally, by
considering peremptory norms as constitutional norms I adopted the position that such norms
behave as principles towards each other. Conflicts between principles are solved by the
formulation of a conflict-rule. Hence, I inquired whether international law contains such
conflict-rules that settle disputes between various peremptory norms. I found that the doctrine

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of responsibility to protect had implicitly created a preference rule between the prohibition of
the use of force on the one hand and the protection of fundamental human rights on the other
hand by requiring a decision of the Security Council to react by force against serious
atrocities. In the area of State immunity for violations of norms of jus cogens, a conflict-rule
is emerging through the decisions of courts to give precedence to the principle of sovereign
equality of States over an effective remedy for violations of peremptory norms by upholding
State immunity for such breaches.

CONCLUSION AND FINAL REFLECTIONS

459. The thesis’ main purpose was to analyse the concept of jus cogens and provide in a
method to identify peremptory norms. The first conclusion is that a method that focuses on
establishing the existence of an opinio juris cogentis will identify norms of jus cogens. This
method is firmly entrenched in positivism because it looks at which norms are actually
recognized and accepted in international law, instead of focusing on the alleged importance of
the values and interests that are protected by peremptory norms. The proposed methodology
does not inquire into the relative importance of interests and values but only on pedigree
requirements, namely are there sufficient instances of practice that warrant the conclusion that
a peremptory norm exist. Various objections could be advanced against the proposed method.
First, it might be argued that the method is too formalistic and inconsistent with the nature of
jus cogens as norms that protect the most fundamental values of the international community.
Norms of jus cogens is all about what is normatively important, regardless of acceptance by
the international community of States as a whole. I fully agree that peremptory norms protect
the most fundamental values of the international community and that they are not value-
neutral. The method for identifying them however has to be. As the discussion of WEIL’s
disquiet with peremptory norms and other forms of relative normativity have demonstrated
there is an inherent danger in focusing on values as the means to identify hierarchical superior
norms in that in the end it might be the values of a certain group that are imposed because
they are supposedly evident. The natural law tradition in international law may well advance
that peremptory norms are founded upon the basic ethical precepts of the international
society. However, which values would fall into this category? As the thesis has demonstrated,
besides some generally accepted norms, the problem is precisely that there is disagreement in
legal doctrine about which norms should belong to jus cogens. Even if there is a close
connection between moral principles and norms of jus cogens – which I do not deny – the
problem remains how to derive those norms from moral principles. This implies that moral
principles can be objectively determined, so that the peremptory norms of international law
can be unequivocally identified. Nevertheless, in the thesis it has been argued that moral
realism is difficult to defend since it requires a method to ascertain the correct moral virtues –
a method that does not exist at the present time and is not likely forthcoming in the near
future. Furthermore, the international community is diverse and so will be its opinions on
what is morally good and which values and interests deserve protection by jus cogens. Since
what is morally good cannot be objectively determined, an inter-subjective agreement on what
is morally good for the present time is all that can be achieved. In such case, one needs to
have a neutral method to discover that inter-subjective agreement and this can only be found
in a positivist approach to the issue of jus cogens.
Second, it could be advanced that the methodology is derived from the identification of
customary norms and that precisely in that area there is no universal acceptance of a specific
method. What is State practice? Is custom based on consent or opinio juris? What is the
relation between State practice and the subjective element? I am aware that there is no

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universal consensus on this issue and that consequently the proposed method for identifying
peremptory norms may be contested. Nonetheless, there are indications in State practice, case
law and doctrine that the method of identifying custom as set out in the thesis has been
broadly accepted. Furthermore, I have demonstrated that by using this method practice of
States recognizing certain peremptory norms can be identified, so that the method is a viable
means to identify peremptory norms and offers an alternative to deriving peremptory norms
from the subjective belief in the importance of values. In addition, its advantage is that it
builds upon a more familiar method to identify custom. Evidently, the proposed method is a
first step and I leave the possibility open for future amendments and improvements. I
nevertheless hope that it can serve as a modest step to a grand methodology to identify
peremptory norms.
Third, it could be contended that the methodology is cumbersome in that it requires
scholars to look into the practice of some two hundred States. I am fully aware of this and in
order to alleviate the problem I also examined the consequences of peremptory norms and its
role in the international legal system. The presence of some of the consequences of
peremptory norms might help identifying those norms in case there is not express recognition
or acceptance. For instance, a State invoking the responsibility of another State even though
the former is not directly affected will point to the existence of an obligation erga omnes and
hence the presence of a peremptory norm. Similarly, the United Nations General Assembly
may adopt a resolution in which it declares a certain legal situation void and this will point to
a general acceptance of a peremptory norm. The function of jus cogens delimits the domains
in which peremptory norms may be found, namely the structural norms of the international
legal system, human rights law and humanitarian law. Nevertheless, in case of doubt the
opinio juris cogentis needs to be established. Although cumbersome, it is by no means
impossible to establish this legal conviction. Case law of national courts is increasingly
scrutinized; the official records of the United Nations are digitalized and States have made
declarations before the International Court of Justice on the peremptory nature of certain
norms of international law.

460. A second conclusion is that peremptory norms essentially function as the constitutional
norms of the international community, rather than the ordre public of the international legal
system. In the thesis I have held that constitutionalism in international law is at this point in
time a mindset or a perspective in which international law and certain evolutions therein are
framed. Few scholars are convinced that international law actually has a constitution and there
are currently no general textbooks that discuss the various domains of international law from
the perspective of constitutionalism. Rather, international law is still primarily viewed as a
collection of different set of conventional or customary norms that govern a certain domain of
inter-State relations. Furthermore, States seem not to be forthcoming in recognizing that their
freedom might be curtailed by constitutional norms. As a positivist, I have to agree that
international law as it now stands, does not recognize that it has a constitution. Nonetheless,
that does not entail that as a lawyer who is concerned with the future of international law I
should not advocate international constitutionalism. The thesis has demonstrated that nothing
would prevent that norms of jus cogens are proclaimed as the constitutional norms of the
international community. In addition, there are other constitutional trends in various domains.
Therefore, I strongly believe that international scholars should take the vanguard and urge for
the explicit acceptance of constitutional norms at the international level. Constitutionalism as
a mindset is a valuable perspective to defend international law against decisionism, the
managerial mindset and the mindset of hegemony. As an approach it has the courage to
demand that international law should adhere to certain values, such as the rule of law and
limited governance, and to examine constitutional aspects already present in international law.

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In a time of globalisation where national constitutional orders are increasingly unable to
effectively protect citizens, national constitutions should become supplemented by an existing
international constitution. The acceptance of a constitution in international law may seem
extremely unlikely, but so was the spread and importance of human rights sixty-five years
ago.

461. In the thesis I have defended a constitutionalism based on jus cogens. If peremptory
norms would become accepted as the constitutional norms of the international legal system, it
would be a modest, but important first step for the international community. It would be the
legal recognition that international law is not merely concerned with relations between States,
but with the common good of mankind that is divided amongst States. International law will
continue to govern inter-State relations, but it would also establish a legal relation between the
international community and States that act as authorities with the duty to advance and respect
the common good and future of mankind. This would constitute a paradigm shift: whereas in
the past international law would be compared with private law, it would become to resemble
public law. There are indications that this shift is occurring. Whereas in the past jus cogens
typically was regarded as the international ordre public, legal scholars now discuss it as a
mechanism for the constitutionalization of international law. In the law of State responsibility,
the serious breach of peremptory norms gives rise to duties for all other States; peremptory
norms are equally obligations erga omnes that give every State a legal interest in upholding
these norms. In essence, States function as authorities who are tasked with upholding the
international constitutional norms against violations of other authorities. Outside the realm of
jus cogens, an indication of this paradigm shift can be found in the responsibility to protect.
The advantages of regarding peremptory norms as constitutional norms is that it builds
upon a widely accepted legal concept whose contours have become increasingly clear and
which is accepted by all States. In addition, it is an inclusive constitutionalism because it
requires that peremptory norms are accepted by the international community of States as a
whole, although it would bind the few States that would disagree with the peremptory status
of a norm of general international law. It recognizes that mankind is diverse and that one has
to engage with different views on what is the common good. At the same time it expresses the
belief that mankind can come to accept certain universal values. It is equally Kantian in that it
underscores that international peace can only be established if States refrain from the use of
force and establish a state of law that includes all States, without the imposition of values.
Nonetheless, I am aware of criticism that could be levelled against a constitutionalism
based on jus cogens. First, it may be criticized for being State-centred because a peremptory
norm can only come into existence if it is accepted and recognized by nearly all States. It is
hence certainly not democratic and may be comprised of norms States deem important, not
mankind as a whole. I fully accept this criticism, but at this point in time there might not be an
alternative. Mankind is still divided in States; people still consider themselves as primarily
linked and living in a State and not in a globalized society. Thus, it might be doubted that
people want to give up their autonomy and create a world State. Furthermore, as KANT was
already aware, creating a world government may bring the danger of despotism. Besides this,
there is the difficult problem of establishing a true democratic system (assuming that at this
point in time that political system can be accepted by all peoples) at the international level
with a world population of seven billion. Even if a parliamentary assembly of thousand
representatives would be established, each representative would represent seven million
persons. In comparison the European Parliament has seven hundred thirty-six members for
five hundred million. Moreover, it can be doubted that a world government, even if it is based
on democracy can do justice to the diversity of mankind. In addition, other institutions than
States may not have the necessary legitimacy. Few would desire to be governed by

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international organizations; although (some) non-governmental organizations have broad
support, their legitimacy to govern is questionable. Hence, it is only States that at this point in
time have broad support to represent peoples at the international level. Not all States are
democracies however so that it may be questioned that they truly represent their people. This
could be countered by continuing to stress democracy, the rule of law and human rights at the
international level. The recognition of the existence of a constitution at the international level
might precisely demonstrate the advantages of having limited government based on the rule of
law on the national level. In line with KANT, peace and the state of law at the international
level are the necessary conditions for republicanism at the national level. In any event, a
constitutionalism based on jus cogens does not entail that other actors do not have any
influence. As I indicated in the thesis, other actors than States can exert influence in setting
the values of the international community. Since any legal system if it desires to be long-
lasting needs to promise a form of justice it has to at least incorporate some of the values that
are accepted in the community it governs.2079 Furthermore, I consider constitutionalism on the
basis of jus cogens as a first step in the evolution towards a more comprehensive and more
democratic constitution at the international level.
A second criticism that may be adduced is that the peremptory norms that I have
retained in Chapter 6 are the traditional, liberal rights that keep authorities at bay. Economic,
social and cultural rights and the duties to implement them are not mentioned and neither are
the positive duties States have in advancing women’s and children’s rights. This might be the
result of the fact that constitutionalism based on jus cogens is a liberal project, that overly
stresses negative rights over positive rights and duties to advance the rights of disadvantaged
groups. I am well aware of this, but at this point in time State practice is mainly concerned
with those traditional liberal rights. I am very supportive of the inclusion of economic, social
and cultural rights and positive duties for States to take measures to advance the human rights
of certain groups. In this respect, I am of the opinion that negative human rights and positive
human rights cannot be separated and that one should advocate for the inclusion of the latter
in jus cogens. In any event, the liberal dimension of constitutionalism based on jus cogens is
not meant to include only the traditionally liberal human rights. It was liberal in that it does
not want to impose certain values on the common good on others and respects diversity. This
does not exclude that the common good would include duties for States to advance the human
rights of specific groups that are not in an equal position to enjoy their human rights.

462. A third conclusion is that the implementation of the peremptory norms (or the
constitutional norms of the international society) remains weak. The procedure to invalidate
treaties that conflict with peremptory norms is ineffective. Outside the law of treaties States
are extremely unlikely to invoke responsibility on the basis of obligations erga omnes; the
International Court of Justice has through its case law of Monetary Gold Removed from Rome
in 1943 and East Timor restricted the possibility to institute cases; a third party is extremely
unlikely to succeed in asking the invalidity of a treaty that is contrary to jus cogens; the
permissibility of countermeasures for severe breaches of peremptory norms is not generally
accepted and the duties of States in case of serious breaches are limited to non-recognition,

2079
This is not a retreat from my positivist stance: a legal system does not need to be legitimate to be considered
legal; an illegitimate legal system that would not reflect any of the (moral) values of the community it governs
would still be a legal system, but it cannot be expected to last long: H.L.A. HART, “Positivism and the
Separation of Laws and Morals”, Harvard Law Review 1957-1958, 622.

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the duty to cooperate and the prohibition to render aid and assistance. Finally, the Security
Council is still too marred with political considerations to be an effective implementation
mechanism for peremptory norms.
The limited means of effective implementation of peremptory norms are a cause of
concern. Nevertheless, the main importance of peremptory norms is that they exist as
universally accepted benchmarks against which to scrutinize authorities at the international
level. In this respect they are not unlike national constitutions which are frequently not
enforceable either, but express the common values a society holds dear and expects its
authorities to respect or to implement. Nonetheless, it would be a significant improvement for
international law if peremptory norms would be more effectively enforceable. The case law of
the International Court of Justice has no precedential value and can be changed so that a
repetition of the East Timor case might not occur. Although countermeasures for serious
breaches of norms of jus cogens have not been generally accepted, States have on occasion
taken measures against other States and the Security Council has on occasion been active in
case of serious breaches of peremptory norms. The emergence of the concept of the
responsibility to protect might further encourage States and the Security Council to intervene
in cases of serious violations of peremptory norms. In addition, the International Criminal
Court may become a significant deterrent for violations of peremptory that are crimes under
its Statute by effectively prosecuting the political elite of a State that has seriously infringed
norms of jus cogens. Nevertheless, the enforcement of peremptory norms is still too ad hoc
and far from consistent. Since reforms of the United Nations are not forthcoming, a change of
mindset might be the only option. Significant legal possibilities already exists: nothing
prevents States to regularly invoke the responsibility of States for violations of jus cogens and
nothing mandates the exercise of veto power at the Security Council in cases of breaches of
peremptory norms. It seems that what political and legal decision-makers are missing is a
mindset that political expediency may never justify the non-enforcement of peremptory
norms. Fortunately, the current mindset may be changed by other actors of the international
community through the relentless advocating of constitutionalism and the rule of law at the
international level. As KANT has demonstrated, eternal peace – the establishing of the state of
law at the international level – does not only depend on State officials, but also on the
exchange of ideas by individuals exercising their cosmopolitan right to travel and meet other
people; eternal peace is too important to leave to States alone and requires the commitment
and conviction of everyone. By exchanging views KANT hoped that the mindset of war would
be transformed into one of peace and the state of law. By defending a constitutionalism based
on jus cogens the thesis hopes to be a modest step towards these ends.

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 INTERNATIONAL INSTRUMENTS AND STATE PRACTICE

I. Treaties and reservations to treaties

A. Treaties
− Declaration Relative to the Universal Abolition of the Slave Trade (1815), De Martens
Nouveau Recueil de Traités 1814-1815, Tome II, 433
− Treaty for the Suppression of the African Slave Trade (1841), De Martens Nouveau
Recueil général des Traités 1841, Tome II, 508
− Declaration Respecting Maritime Law (1856), Consolidated Treaty Series, Vol. 115, 1
− Saint Petersburg Declaration Renouncing the Use, in Time of War, of Explosive
Projectiles Under 400 Grammes Weight (1868), Consolidated Treaty Series, Vol. 138,
297
− General Act of the Conference respecting the Congo Basin (1885), De Martens Nouveau
Recueil général des Traités 1853-85, Tome X, 419
− International Agreement for the Suppression of the White Slave Traffic (1904), League
of Nations Treaty Series No. 11
− Hague Convention (IV) respecting the Laws and Customs of War on Land (1907),
Consolidated Treaty Series Vol. 205, 277
− International Convention on the Suppression of the White Slave Traffic (1910), League
of Nations Treaty Series No. 8
− Covenant of the League of Nations (1919), Consolidated Treaty Series Vol. 225, 195
− International Convention for the Suppression of the Traffic in Women and Children
(1921) League of Nations Treaty Series No. 269
− Convention to Suppress the Slave Trade and Slavery (1926), League of Nations Treaty
Series No. 1414
− General Treaty for the Renunciation of War as an Instrument of National Policy
(Kellogg-Briand Pact) (1928), League of Nations Treaty Series No. 2137
− Convention No. 29 concerning Forced or Compulsory Labour (1930), United Nations
Treaty Series No. 612
− International Convention for the Suppression of the Traffic of Women of Full Age
(1933), League of Nations Treaty Series No. 3476
− Charter of the United Nations (1945), Treaty Series No. 993
− Statute of the International Court of Justice (1945), Treaty Series No. 993
− Charter of the Organization of American States (1948), OAS Treaty Series No. 36
− Convention on the Prevention and Punishment of the Crime of Genocide (1948), United
Nations Treaty Series No. 1021
− Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others (1949), United Nations Treaty Series No. 1342
− Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field (1949), United Nations Treaty Series No. 970
− Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (1949), United Nations Treaty Series No.
971
− Geneva Convention (III) Relative to the Treatment of Prisoners of War (1949), United
Nations Treaty Series No. 972
− Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War
(1949), United Nations Treaty Series No. 973
− Statute of the Council of Europe (1949), European Treaty Series No. 1

437
− Convention of the Suppression of Traffic in Persons and of the Exploitation of the
Prostitution of Others (1950), United Nations Treaty Series No. 1342
− European Convention for the Protection of Human Rights and Fundamental Freedoms
(1950), European Treaty Series No. 5
− Convention relating to the Status of Refugees (1951), United Nations Treaty Series No.
2545
− Convention on the Political Rights of Women (1952), United Nations Treaty Series No.
2613
− Convention on the Status of Stateless Persons (1954), United Nations Treaty Series No.
5158
− Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions
and Practices Similar to Slavery (1956), United Nations Treaty Series No. 3822
− Convention on the Nationality of Married Women (1957), United Nations Treaty Series
No. 4468
− Treaty of Nicosia (1960), United Nations Treaty Series No. 5475
− Convention on the Reduction of Statelessness (1961), United Nations Treaty Series No.
14458
− International Convention on the Elimination of All Forms of Racial Discrimination
(1965), United Nations Treaty Series No. 9464
− International Covenant on Civil and Political Rights (1966), United Nations Treaty Series
No. 14668
− International Covenant on Economic, Social and Cultural Rights (1966), United Nations
Treaty Series No. 14531
− American Convention on Human Rights (1969), United Nations Treaty Series No. 17955
− Vienna Convention on the Law of Treaties between States (1969), United Nations Treaty
Series No. 18232
− European Convention on State Immunity (1972), European Treaty Series No. 74
− International Convention on the Suppression and Punishment of the Crime of Apartheid
(1973), United Nations Treaty Series No. 14861
− Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (1977), United Nations Treaty
Series No. 17512
− Protocol (II) Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts (1977), United Nations
Treaty Series No. 20378
− Convention on the Elimination of All Forms of Discrimination against Women (1979),
United Nations Treaty Series No. 20378
− African Charter on Human and Peoples’ Rights (1981), United Nations Treaty Series No.
26363
− United Nations Convention on the Law of the Sea (1982), United Nations Treaty Series
No. 31363
− Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental
Freedoms concerning the Abolition of the Death Penalty (1983), European Treaty Series
No. 114
− Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment (1984), United Nations Treaty Series No. 24841
− Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental
Freedoms (1984), European Treaty Series No. 117
− Convention on the Rights of the Child (1989), United Nations Treaty Series No. 27531

438
− African Charter on the Right and Welfare of the Child (1990), OAU Doc.
CAB/LEG/24.9/49
− Rome Statute of the International Criminal Court (1998), United Nations Treaty Series
No. 38554
− Convention No. 182 concerning the Prohibition and Immediate Action for the
Elimination of the Worst Forms of Child Labour (1999), United Nations Treaty Series
No. 37245
− Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict (2000), United Nations Treaty Series No. 27531
− Optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child
Prostitution and Child Pornography (2000), United Nations Treaty Series No. 27531
− Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children (2000), United Nations Treaty Series No. 39574
− Constitutive Act of the African Union (2000), OAU Doc. CAB/LEG/23.15
− Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms (2000), European Treaty Series No. 177
− Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental
Freedoms concerning the Abolition of the Death Penalty in All Circumstances (2002),
European Treaty Series No. 187
− Arab Charter on Human Rights (2004), International Human Rights Reports 2005, 893
− Vienna Convention on the Jurisdictional Immunities of States and Their Property (2004),
UN Doc. A/59/508
− Consolidated Version of the Treaty of the European Union (2007), Official Journal, Vol.
53, 30 march 2010, C-83/01, 13
− Amendments to the Rome Statute of the International Criminal Court on the Crime of
Aggression, Annex I to Review Conference Resolution RC-Res.6 (2010)

B. Reservations and objections

− Vienna Convention on the Law of Treaties, Reservation of Belgium, Reservation of
Denmark, Reservation of Finland, Reservation of Portugal, Objection of Egypt, Objection
of Japan, Objection of Germany, Objection of the Netherlands, Objection of New
Zealand, Objection of Sweden, Objection of the United Kingdom, Objection of the
United States, at
http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXIII~1&c
hapter=23&Temp=mtdsg3&lang=en
− International Covenant on Civil and Political Rights, Reservation of Austria, Belgium,
Denmark, France, Germany, Luxemburg, Monaco, the Netherlands, Norway, Trinidad
and Tobago, at
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
4&chapter=4&lang=en

II. Resolutions of the UN Security Council and the UN General Assembly

A. UN Security Council resolutions

− Resolution 298 (1971), UN Doc. S/RES/298 (1971)
− Resolution 384 (1975), UN Doc. S/RES/384 (1975)
− Resolution 389 (1976), UN Doc. S/RES/389 (1976)
− Resolution 478 (1980), UN Doc. S/RES/478 (1980)

439
− Resolution 497 (1981), UN Doc. S/RES/497 (1981)
− Resolution 541 (1983), UN Doc. S/RES/541 (1983)
− Resolution 550 (1984), UN Doc. S/RES/550 (1984)
− Resolution 672 (1990), UN Doc. S/RES/672 (1990)
− Resolution 1373 (2001), UN Doc. S/RES/1373 (2001)
− Resolution 1540 (2004), UN Doc. S/RES/1540 (2004)
− Resolution 1674 (2006), UN Doc. S/RES/1674 (2006)
− Resolution 1706 (2006), UN Doc. S/RES/1706 (2006)
− Resolution 1894 (2009), UN Doc. S/RES/1894 (2009)
− Resolution 1973 (2011), UN Doc. S/RES/1973 (2011)

B. UN General Assembly resolutions

− Resolution 96 (I), UN Doc. A/RES/96 (I)
− Resolution 103 (I), UN Doc. A/RES/103 (I)
− Universal Declaration on Human Rights, Resolution 217A (III), UN Doc. A/RES/217A
(III)
− Draft Declaration on Rights and Duties of States, Annex to Resolution 375 (IV), UN Doc.
A/RES/375 (IV)
− Declaration on the Granting of Independence to Colonial Countries and Peoples,
Resolution 1514 (XV), UN Doc. A/RES/1514 (XV)
− Principles which Should Guide Members in Determining whether or not an Obligation
Exists to Transmit the Information Called for in Article 73 e of the Charter of the United
Nations, annex to Resolution 1541 (XV), UN Doc. A/RES/1541 (XV)
− Permanent Sovereignty over Natural Resources, Resolution 1803 (XVII), UN Doc.
A/RES/1803 (XVII)
− Declaration on Principles of International Law concerning Friendly Relations and Co-
Operation among States in accordance with the Charter of the United Nations, annex to
Resolution 2625 (XXV), UN Doc. A/RES/2625 (XXV)
− Resolution 2949 (XXVII), UN Doc. A/RES/2949 (XXVII)
− Resolution 2997 (XXVII), UN Doc. A/RES/2997 (XXVII)
− Definition of Aggression, annex to UN Resolution 3314 (XXIX), UN Doc. A/RES/3314
(XXIX)
− Resolution 3485 (XXX), UN Doc. A/RES/3485 (XXX)
− Resolution 31/53, UN Doc. A/RES/31/53
− Resolution 32/34, UN Doc. A/RES/32/34
− Resolution 33/39, UN Doc. A/RES/33/39
− Resolution 34/40, UN Doc. A/RES/34/40
− Resolution 35/27, UN Doc. A/RES/35/27
− Resolution 35/118, UN Doc. A/RES/35/118
− Resolution 36/50, UN Doc. A/RES/36/50
− Resolution 37/30, UN Doc. A/RES/37/30
− Resolution 50/6, UN Doc. A/RES/50/6
− Resolution 59/279, UN Doc. A/RES/59/279
− Resolution 59/185, UN Doc. A/RES/59/185
− Resolution 59/233, UN Doc. A/RES/59/233
− Resolution 59/244, UN Doc. A/RES/59/244
− Resolution 59/279, UN Doc. A/RES/59/279

440
− Resolution 60/1, World Summit Outcome Document, UN Doc. A/RES/60/1
− Resolution 60/196, UN Doc. A/RES/60/196
− Resolution 60/219, UN Doc. A/RES/60/219
− Resolution 60/220, UN Doc. A/RES/60/220
− Resolution 61/169, UN Doc. A/RES/61/169
− Resolution 61/200, UN Doc. A/RES/61/200
− Resolution 61/217, UN Doc. A/RES/61/217
− Resolution 61/218, UN Doc. A/RES/61/218
− Resolution 61/229, UN Doc. A/RES/61/229
− Resolution 63/147, UN Doc. A/RES/63/147
− Resolution 63/308, UN Doc. A/RES/63/308

III. Documents of the International Law Commission

A. Dafts and final texts

− "Draft Code of Offences against the Peace and Security of Mankind with Commentaries”,
Yearbook of the International Law Commission 1954, Vol. II, 149
− “Draft Articles on the Law of Treaties with Commentaries”, Yearbook of the
International Law Commission 1966, Vol. II, 187
− “Draft Articles on the Law of Treaties between States and International Organizations or
between International Organizations, with Commentaries”, Yearbook of the International
Law Commission 1982, Vol. II, Part 2, 17
− “Draft Code of Crimes against the Peace and Security of Mankind”, Yearbook of the
International Law Commission 1996, Vol. II, Part 2, 17
− “Draft Articles on Responsibility of States for Internationally Wrongful Acts with
Commentaries”, Yearbook of the International Law Commission 2001, Vol. II, Part 2, 31
− “Draft Articles on Responsibility of States for Internationally Wrongful Acts”, Annex to
General Assembly Resolution 56/83, UN Doc. A/RES/56/83
− “Draft Articles on Diplomatic Protection with Commentaries”, UN Doc. A/61/10, 22
− “Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating
Legal Obligations, with Commentaries”, UN Doc. A/61/10, 369
− “Fragmentation of International Law: Difficulties arising from the Diversification and
Expansion of International Law, Report of the Study Group of the International Law
Commission”, UN Doc. A/CN.4/L.682/Add.1

B. Summary records
− Summary Records of the Second Session, Yearbook of the International Law Commission
1950, Vol. I
− Summary Records of the Fifteenth Session, Yearbook of the International Law
Commission 1963, Vol. I
− Summary Records of the Eighteenth Session, Yearbook of the International Law
Commission 1966, Vol. I
− Summary Records of the Thirty-first Session, Yearbook of the International Law
Commission 1979, Vol. I
− Summary Records of the Thirty-Second Session, Yearbook of the International Law
Commission 1980, Vol. I

441
− Summary Records of the Fiftieth Session, Yearbook of the International Law Commission
1998, Vol. I
C. Rapports of Special Rapporteurs
− Special Rapporteur LAUTERPACHT, “Report on the Law of Treaties”, Yearbook of the
International Law Commission 1953, Vol. II, 90
− Special Rapporteur FITZMAURICE, “Second Report on the Law of Treaties”, Yearbook of
the International Law Commission 1957, Vol. II, 16
− Special Rapporteur FITZMAURICE, “Third Report on the Law of Treaties”, Yearbook of
the International Law Commission 1958, Vol. II, 20
− Special Rapporteur FITZMAURICE, “Fourth Report on the Law of Treaties”, Yearbook of
the International Law Commission 1959, Vol. II,
− Special Rapporteur WALDOCK, “Second Report on the Law of Treaties”, Yearbook of the
International Law Commission 1963, Vol. II, 36
− Special Rapporteur WALDOCK, “Third Report on the Law of Treaties”, Yearbook of the
International Law Commission 1964, Vol. II, 5
− Special Rapporteur WALDOCK, “Fifth Report on the Law of Treaties”, Yearbook of the
International Law Commission 1966, Vol. II, 1
− Special Rapporteur AGO, “Fifth Report on State Responsibility”, Yearbook of the
International Law Commission 1976, Vol. II, Part 1, 3
− Special Rapporteur AGO, “Eight Report on State Responsibility”, Yearbook of the
International Law Commission 1979, Vol. II, Part 1, 3
− Special Rapporteur RIPHAGEN, “Third Report on the Content, Forms and Degrees of
International Responsibility”, Yearbook of the International Law Commission 1982, Vol.
II, Part 1, 22
− Special Rapporteur ARANGIO-RUIZ, “Fourth Report on State Responsibility”, Yearbook of
the International Law Commission 1992, Vol. II, Part 1, 1
− Special Rapporteur CRAWFORD, “First Report on State Responsibility, Yearbook of the
International Law Commission 1998, Vol. II, Part 1, 1
− Special Rapporteur CRAWFORD, “Third Report on State Responsibility”, Yearbook of the
International Law Commission 2000, Vol. II, Part 1, 3
− Special Rapporteur CRAWFORD, “Fourth Report on State Responsibility”, Yearbook of the
International Law Commission 2001, Vol. II, Part 1, 1
− Special Rapporteur RODRÍGUEZ-CEDEÑO, “Sixth Report on Unilateral Acts of States”, UN
Doc. A/CN.4/534

D. Reports of the International Law Commission

− “Report of the International Law Commission Covering the Work of Its Fifteenth
Session”, Yearbook of the International Law Commission 1963, Vol. II, 187
− “Report of the International Law Commission on the Work of Its Eighteenth Session”,
Yearbook of the International Law Commission 1966, Vol. II, 172
− “Report of the International Law Commission on the Work of Its Twenty-Eight Session”,
Yearbook of the International Law Commission 1976, Vol. II, Part 2, 1
− “Report of the International Law Commission on the Work of its Forty-Eight Session”,
Yearbook of the International Law Commission 1996, Vol. II, Part 2, 1
− “Report of the International Law Commission on the Work of Its Forty-Ninth Session”,
Yearbook of the International Law Commission 1997, Vol. II, Part 2, 1
− “Report of the International Law Commission on the Work of Its Fiftieth Session”,
Yearbook of the International Law Commission 1998, Vol. II, Part 2, 1

442
− “Report of the International Law Commission on Its Work during Its Fifty-Third
Session”, Yearbook of the International Law Commission 2001, Vol. II, Part 2, 1
IV. Human Rights Committees

A. Human Rights Committee

1. General Comments
− General Comment No. 8, Article 9 (Right to Liberty and Security of Persons), UN Doc.
HRI/GEN/1/Rev.6
− General Comment No. 12, Article 1 (The Right to self-determination of people), UN Doc.
CCPR/C/21/Rev.1
− General Comment No. 18, Non-discrimination, UN Doc. CCPR/C/37
− General Comment No. 20, Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or
Degrading Treatment or Punishment), UN Doc. HRI/GEN/1/Rev.7
− General Comment No. 24, Issues relating to Reservations Made upon Ratification or
Accession to the Covenant or the Optional Protocols Thereto, or in Relation to
Declarations under Article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1./Add.6
− General Comment No. 29, Article 4 (States of Emergency), UN Doc.
CCPR/C/21/Rev.1/Add.11
− General Comment No. 31, Nature of the General Legal Obligation Imposed on State
Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13
− General Comment No. 32, Article 14 (Right to Equality before Courts and Tribunals and
to Fair Trial), UN Doc. CCPR/C/GC/32

2. Communications
− Mbenge v. Zaire, Communication No. 16/1977, UN Doc. A/38/40 Supp. No. 40
− Fanali v. Italy, Communication No. 75/1980, UN Doc. CCPR/C/OP/2
− Delgado Páez v. Colombia, Communication No. 195/1985, UN Doc.
CCPR/C/39/D/195/1985
− Reid v. Jamaica, Communication No. 250/1987, UN Doc. CCPR/C/39/D/250/1987
− van Alphen v. The Netherlands, Communication No. 305/1988, UN Doc.
CCPR/C/39/D/305/1988
− Karttunen v. Finland, Communication No. 387/1989, UN Doc. CCPR/C/46/D/387/1989
− Toonen v. Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992
− A v. Australia, Communication No. 563/1993, UN Doc. CCPR/C/59/D/560/1993
− de Guerrero v. Columbia, Communication No. 11/45, UN Doc. Supp. No. 40 (A/37/40)
− Hendriks v. Guayana, Communication No. 838/1998, UN Doc. CCPR/C/76/D/838/1998
− Evans v. Trinidad and Tobago, Communication No. 908/2000, UN Doc.
CCPR/C/77/D/908/2000
− Ruzmetov v. Uzbekistan, Communication No. 915/2000, UN Doc.
CCPR/C/87/D/914/2000
− Gomariz Valera v. Spain, Communication No. 1095/2002, UN Doc.
CPR/C/84/D/1095/2002
− Khomidova v. Tajikistan, Communication No. 1117/2002, UN Doc.
CCPR/C/81/D/1117/2002

B. Committee against Torture

443
− Dzemajl and Others v. Serbia and Montenegro, Communication No. 161/2000, UN Doc.
A/58/44, Annex VI
− G.R.B. v. Sweden, Communication No. 83/1997, UN Doc. A/53/44, Annex X
− Sadiq Shek Elmi v. Australia, Communication No. 120/1998, UN Doc. A/54/44, Annex
VII
− H.M.H.I. v. Australia, Communication No. 177/2001, UN Doc. A/57/44

C. Committee on Economic, Social and Cultural Rights

− General Comment No. 20, Article 2, para. 2, of the International Covenant on Economic,
Social and Cultural Rights (Non-discrimination in Economic, Social and Cultural Rights),
UN Doc. E/C.12/GC/20

D. Committee on the Elimination of Racial Discrimination

− Report of the Committee on the Elimination of Racial Discrimination, 1 November 2002,
UN Doc. A/57/18

V. Statutes of International Criminal Tribunals and Courts

− Charter of the International Military Tribunal, annex to the Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis (1945),
United Nations Treaty Series No. 251
− Charter of the International Military Tribunal for the Far East (1946), Treaties and Other
International Acts Series No. 1589, 11
− Statute of the International Criminal Tribunal for the Former Yugoslavia, annex to UN
Security Council Resolution 827 (1993), UN Doc. S/RES/ 827 (1993)
− Statute of the International Criminal Tribunal for Rwanda, annex to UN Security Council
Resolution 955 (1994), UN Doc. S/RES/955 (1994)
− Statute of the Special Court for Sierra Leone (2002), annex to the Agreement between the
United Nations and the Government of Sierra Leone on the Establishment of a Special
Court for Sierra Leone (2002), United Nations Treaty Series No. 38342

VI. State practice

Albania
− Statement of Albania, General Assembly, 27th Session, Plenary Meetings, 2105th
Meeting, 8 December 1972, General Assembly Official Records 1972, 9, UN Doc.
A/PV.2105

Argentina
− Observations and Comments of Argentina, UN Doc. A/CN.4/488/Add.1
− Observations and Comments of Argentina, UN Doc. A/CN.4/515/Add.3
− Statement of Argentina, UN Doc. A/C.6/56/SR.15

Australia
− Statement of Australia, UN Doc. A/C.6/55/SR.16

444
Austria
− Statement of Austria, General Assembly, Twenty-First Session, 911th Meeting of the
Sixth Committee, General Assembly Official Records 1966, 57-58, UN Doc.
A/C.6/SR.911
− Observations and Comments of Austria, UN Doc. A/CN.4/515
− Observations and Comments of Austria, UN Doc. A/CN.4/515/Add.2
− Statement of Austria, UN Doc. A/C.6/55/SR.17

Bahrain
− Statement of Bahrain, UN Doc. A/C.6/55/SR.19

Belgium
− Statement of Belgium, UN Doc. A/C.6/56/SR.11

Botswana
− Statement of Botswana, UN Doc. A/C.6/55/SR.15

Brazil
− Statement of Brazil, UN Doc. A/C.6/56/SR.16

Bulgaria
− Observations and Comments of Bulgaria on Part 1 of the Draft Articles on State
Responsibility for Internationally Wrongful Acts, Yearbook of the International Law
Commission 1981, Vol. II, Part 1, 72
− Statement of Bulgaria, UN Doc. A/C.6/54/SR.28

Burkina Faso
− Statement of Burkina Faso, UN Doc. A/C.6/54/SR.26

Byelorussia
− Observations and Comments of Byelorussia on Chapters I, II and III of Part 1 of the Draft
Articles on State responsibility for Internationally Wrongful Acts, Yearbook of the
International Law Commission 1980, Vol. II, Part 1, 93

Cameroon
− Statement of Cameroon, UN Doc. A/C.6/55/SR.24

Chile
− Statement of Chile, UN Doc. A/C.6/55/SR.17

China
− Statement of China, UN Doc. A/C.6/55/SR.14
− Statement of China, UN Doc. A/C.6/56/SR.11
− Statement of China, General Assembly, 27th Session, Plenary Meetings, 2105th Meeting,
8 December 1972, General Assembly Official Records 1972, 8, UN Doc. A/PV.2105

Costa Rica
− Statement of Costa Rica, UN Doc. A/C.6/55/SR.17

445
Cuba
− Statement of Cuba, UN Doc. A/C.6/54/SR.28
− Statement of Cuba, UN Doc. A/C.6/55/SR.18

Cyprus
− Statement of Cyprus, Security Council, Nineteenth Year, 1098th Session, Security
Council Official Records 1964, 16, UN Doc. S/PV.1098
− Statement of Cyprus, UN Doc. A/C.6/55/SR.18
− Statement of Cyprus, UN Doc. A/C.6/56/SR.13

Czech Republic
− Observations and Comments of the Czech Republic, UN Doc. A/CN.4/488
− Statement of the Czech Republic, UN Doc. A/C.6/53/SR.21

Denmark
− Statement of Denmark, UN Doc. A/C.6/55/SR.15

France
− Observations and Comments of France, UN Doc. A/CN.4/515/Add.2

Federal Republic of Germany

− Observations and Comments of the Federal Republic of Germany on Part 1 of the Draft
Articles on State Responsibility for Internationally Wrongful Acts, Yearbook of the
International Law Commission 1981, Vol. II, Part 1, 73
− Observations and Comments of the Federal Republic of Germany on Part 1 of the Draft
Articles on State Responsibility for Internationally Wrongful Acts, Yearbook of the
International Law Commission 1988, Vol. II, Part 1, 2
− Observations and Comments of the Federal Republic of Germany, UN Doc. A/CN.4/448
− Statement of the Federal Republic of Germany, UN Doc. A/C.6/56/SR.12

Greece
− Observations and Comments of Greece, UN Doc. A/CN.4/492
− Statement of Greece, UN Doc. A/C.6/53/SR.17
− Statement of Greece, UN Doc. A/C.6/54/SR.28
− Statement of Greece, UN Doc. A/C.6/55/SR.17
− Statement of Greece, UN Doc. A/C.6/56/SR.14

Hungary
− Statement of Hungary, UN Doc. A/C.6/55/SR.16
− Statement of Hungary, UN Doc. A/C.6/56/SR.15

India
− Statement of India, UN Doc. A/C.6/53/SR.21
− Statement of India, UN Doc. A/C.6/56/SR.14

Indonesia
− Statement of Indonesia, UN Doc. A/C.6/56/SR.16

Iran

446
− Statement of Iran, UN Doc. A/C.6/56/SR.16

Ireland
− Statement of Ireland, UN Doc. A/C.6/56/SR.15

Israel
− Statement of Israel, UN Doc. A/C.6/55/SR.15

Italy
− Statement of Italy, General Assembly, Eighteenth Session, 793rd Meeting of the Sixth
Committee, General Assembly Official Records 1963, 62, UN Doc. A/C.6/SR.793
− Statement of Italy, General Assembly, Twentieth Session, 851st Meeting of the Sixth
Committee, General Assembly Official Records 1965, 72, UN Doc. A/C.6/SR851
− Observations and Comments of Italy, UN Doc. A/CN.4/488/Add.2
− Statement of Italy, UN Doc. A/C.6/53/SR.21
− Statement of Italy, UN Doc. A/C.6/54/SR.24
− Statement of Italy, UN Doc. A/C.6/55/SR.16
− Statement of Italy, UN Doc. A/C.6/56/SR.13

Japan
− Observations and Comments of Japan, UN Doc. A/CN.4/515
− Statement of Japan, UN Doc. A/C.6/55/SR.14
− Statement of Japan, UN Doc. A/C.6/56/SR.12

Jordan
− Statement of Jordan, UN Doc. A/C.6/55/SR.18
− Statement of Jordan, UN Doc. A/C.6/56/SR.15

Korea
− Observations and Comments of the Republic of Korea, UN Doc. A/CN.4/515

Libya
− Statement of Libyan Arab Jamahiriya, UN Doc. A/C.6/55/SR.22

Luxemburg
− Comments of Luxemburg on Parts I, II and III of the Draft Articles on the Law of
Treaties Drawn up by the Commission at its Fourteenth, Fifteenth and Sixteenth Session,
Yearbook of the International Law Commission 1966, Vol. II, 307

Mali
− Observations and Comments of Mali on Chapter I, II and III of Part 1 of the Draft
Articles on State Responsibility for Internationally Wrongful Acts, Yearbook of the
International Law Commission 1980, Vol. II, Part 1, 102
− Statement of Mali, UN Doc. A/C.6/56/SR.13

Mexico
− Observations and Comments of Mexico, UN Doc. A/CN.4/515/Add.1
− Statement of Mexico, UN Doc. A/C.6/53/SR.18
− Statement of Mexico, UN Doc. A/C.6/55/SR.20

447
− Statement of Mexico, UN Doc. A/C.6/56/SR.14
− Statement of Mexico, UN Doc. A/C.6/56/SR.15
Mongolia
− Observations and Comments of Mongolia, UN Doc. A/CN.4/488
− Statement of Mongolia, UN Doc. A/C.6/56/SR.14

Morocco
− Statement of Morocco, UN Doc. A/C.6/56/SR.11

The Netherlands
− Statement of The Netherlands, General Assembly, Twentieth Session, 847th Meeting of
the Sixth Committee, General Assembly Official Records 1965, 46, UN Doc.
A/C.6/SR.847
− Observations and Comments of The Netherlands, UN Doc. A/CN.4/515
− Statement of The Netherlands, UN Doc. A/C.6/56/SR.12

New Zealand
− Statement of New Zealand, UN Doc. A/C.6/55/SR.16
− Statement of New Zealand, UN Doc. A/C.6/56/SR.11,

Nordic countries
− Observations and Comments of Denmark on behalf of the Nordic Countries, UN Doc.
A/CN.4/488
− Observations and Comments of Denmark on behalf of the Nordic Countries, UN Doc.
A/CN.4/515
− Statement of the Nordic Countries, UN Doc. A/C.6/53/SR.19
− Statement of the Nordic Countries, UN Doc. A/C.6/56/SR.11

Pakistan
− Statement of Pakistan, General Assembly, Eighteenth Session, 791st Meeting of the Sixth
Committee, General Assembly Official Records 1963, 52, UN Doc. A/C.6/SR.791

Poland
− Observations and Comments of Poland, UN Doc. A/CN.4/515/Add.2
− Statement of Poland, UN Doc. A/C.6/55/SR.18
− Statement of Poland, UN Doc. A/C.6/56/SR.13

Portugal
− Statement of Portugal, UN Doc. A/C.6/56/SR.14

Romania
− Statement of Romania, General Assembly, Eighteenth Session, 783rd Meeting of the
Sixth Committee, General Assembly Official Records 1963, 32, UN Doc. A/C.6/SR.783

Russian Federation
− Statement of the Russian Federation, UN Doc. A/C.6/56/SR.14

Sierra Leone
− Statement of Sierra Leone, UN Doc. A/C.6/56/SR.14

448
Slovakia
− Observations and Comments of Slovakia, UN Doc. A/CN.4/515
− Statement of Slovakia, UN Doc. A/C.6/53/SR.22
− Statement of Slovakia, UN Doc. A/C.6/56/SR.16

Slovenia
− Statement of Slovenia, UN Doc. A/C.6/53/SR.21
− Statement of Slovenia, UN Doc. A/C.6/55/SR.18

Members of the South African Development Community

− Statement of the the Member States of the South African Development Community, UN
Doc. A/C.6/56/SR.12

Spain
− Observations and Comments of Spain, UN Doc. A/CN.4/515
− Statement of Spain, UN Doc. A/C.6/53/SR.18
− Statement of Spain, UN Doc. A/C.6/54/SR.21
− Statement of Spain, UN Doc. A/C.6/55/SR.16

Sweden
− Comments of Sweden on Parts I, II and III of the Draft Articles on the Law of Treaties
Drawn up by the Commission at its Fourteenth, Fifteenth and Sixteenth Session,
Yearbook of the International Law Commission 1966, Vol. II, 337

Switzerland
− Observations and Comments of Switzerland, UN Doc. A/CN.4/448
− Statement of Switzerland, UN Doc. A/C.6/56/SR.16

Thailand
− Statement of Thailand, UN Doc. A/C.6/56/SR.15

Turkey
− Commentary of Turkey on Parts I, II and III of the Draft Articles on the Law of Treaties
Drawn up by the Commission at its Fourteenth, Fifteenth and Sixteenth Session,
Yearbook of the International Law Commission 1966, Vol. II, 341

Ukraine
− Observations and Comments of Ukraine on Chapters I, II and III of Part 1 of the Draft
Articles on State responsibility for Internationally Wrongful Acts, Yearbook of the
International Law Commission 1980, Vol. II, 103
− Statement of Ukraine, UN Doc. A/C.6/53/SR.22

United Kingdom
− Commentary of the United Kingdom on Parts I, II and III of the Draft Articles on the
Law of Treaties Drawn up by the Commission at its Fourteenth, Fifteenth and Sixteenth
Session, Yearbook of the International Law Commission 1966, Vol. II, 343
− Observations and Comments of the United Kingdom, UN Doc. A/CN.4/515

449
− Statement of the United Kingdom, UN Doc. A/C.6/55/SR.14
− Observations by the United Kingdom on General Comment No. 24, Human Rights Law
Journal 1995, 424

United States of America

− Statement of United States of America, General Assembly, Eighteenth Session, 784th
Meeting of the Sixth Committee, General Assembly Official Records 1963, 20, UN Doc.
A/C.6/SR.784
− Comments of the United States of America on Parts I, II and III of the Draft Articles on
the Law of Treaties Drawn up by the Commission at its Fourteenth, Fifteenth and
Sixteenth Session, Yearbook of the International Law Commission 1966, Vol. II, 346
− Observations and Comments of United States of America, UN Doc. A/CN.4/515
− Statement of United States of America, UN Doc. A/C.6/55/SR.18
− Statement of United States of America, UN Doc. A/C.6/56/SR.14

Uzbekistan
− Observations and Comments of Uzbekistan, UN Doc. A/CN.4/488

VI. Vienna Conference on the Law of Treaties

− Summary Records of the Plenary Meeting and of the Meetings of the Committee as a
Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. I,
1969, UN Doc. A/CONF.39/11
− Summary Records of the Plenary Meeting and of the Meetings of the Committee as a
Whole, United Nations Conference on the Law of Treaties, Official Records, Vol. II,
1970, UN Doc. A/CONF.39/11/Add.1
− Documents of the Conference, United Nations Conference on the Law of Treaties,
Official Records, 1970, UN Doc. A/CONF.39/11/Add.2
− Comments and Observations made in 1966 and 1967 to the Final Draft Articles on the
Law of Treaties, Vol. II, UN Doc. A/CONF.39/5

VII. Miscellaneous documents

− Decision of the Council of the League of Nations on the Åland Islands, League of
Nations Official Journal, September 1921, 697
− Joint Four-Nation Declaration of the Moscow Conference (1943), at
http://avalon.law.yale.edu/wwii/moscow.asp
− Report of the Rapporteur of Sub-Committee I/1/A to Committee I/1, Chapter II, UNCIO
VI, 717
− Report of the Sixth Committee to the General Assembly (1963), UN Doc. A/5601
− Report of the Sixth Committee to the General Assembly (1967), UN Doc. A/6913
− UNHCR Executive Committee, 33rd Session, Conclusion No. 25 (1982), UN Doc.
A/37/12/Add.1
− Cartagena Declaration on Refugees (1984), Colloquium on the International Protection
of Refugees in Central America, Mexico and Panama, at
http://www.unhcr.org/refworld/docid/3ae6b36ec.html
− Declaration of Minimum Humanitarian Standards, Report of the Subcommission of
Prevention of Discrimination and Protection of Minorities on Its 46th Session,

450
 Commission on Human Rights, 51st Session, Provisional Agenda Item 19, UN Doc.
E/CN.4/1995/116 (1995)
− INTERNATIONAL LABOUR ORGANIZATION, “Report of the Commission of Inquiry
Appointed under Article 26 of the Constitution of the International Labour Organization
to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No.
29)”, 2 July 1998, at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm
− INTERNATIONAL LABOUR ORGANIZATION, “Report of the Commission of Inquiry
Appointed under Article 26 of the Constitution of the International Labour Organization
to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No.
29)”, 2 July 1998, at
http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanmar.htm
− International Commission on Intervention and State Sovereignty, “The Responsibility to
Protect”, Ottawa, International Development Research Centre, 2001, at
http://responsibilitytoprotect.org/ICISS%20Report.pdf
− “Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change,
A More Secure World: Our Shared Responsibility”, UN Doc. A/59/565
− “Report of the Secretary-General, In Larger Freedom: Towards Development, Security
and Human Rights for All”, UN Doc. A/59/2005
− “Report of the Secretary General, Implementing the Responsibility to Protect”, UN Doc.
A/63/677
− International Criminal Court, Elements of Crime, ICC-ASP/1/3 (Part II-B), at www.icc-
cpi.int
− Organization of American States, General Assembly, Human Rights, Sexual Orientation
and Gender Identity, AG/RES.2653 (XLI-O/11)

451
 CASE LAW

I. Case law and related documents of the Permanent Court of International Justice and
the International Court of Justice

A. Judgments

1. Judgments of the Permanent Court of International Justice

− S.S. Wimbledon (United Kingdom, France, Italy and Japan v. Germany, Poland
Intervening), Judgment, PCIJ Publ., Series A, No. 1
− The Mavrommatis Palestine Concessions (Greece v. The United Kingdom), Judgment,
PCIJ Publ. Series A, No. 2
− Certain German Interests in Polish Upper Silesia (Germany v. Poland), Merits,
Judgment, PCIJ Publ., Series A, No. 7
− Factory at Chorzów (Germany v. Poland), Jurisdiction, Judgment, PCIJ Publ., Series A,
No. 8
− S.S. Lotus (France v. Turkey), Judgment, PCIJ Publ., Series A, No. 10
− Factory at Chorzów (Germany v. Poland), Merits, Judgment, PCIJ Publ., Series A, No.
17
− Free Zones of Upper Savoy and the District of Gex (France v. Switzerland), Order, PCIJ
Publ., Series A, No. 22
− Legal Status of Eastern Greenland (Denmark v. Norway), Judgment, PCIJ Publ., Series
A/B, No. 53
− Panevezys-Saldutiskis Railway (Estonia v. Lithuania), Judgment, PCIJ Publ., Series A/B,
No. 76

2. Judgments and orders of the International Court of Justice

− Corfu Channel Case (United Kingdom v. Albania), Merits, Judgment, ICJ Rep. 1949, 4
− Asylum Case (Columbia v. Peru), Judgment, ICJ Rep. 1950, 266
− Fisheries Case (United Kingdom v. Norway), Judgment, ICJ Rep. 1951, 116
− Haya de la Torre Case (Columbia v. Peru), Judgment, ICJ Rep. 1951, 71
− Rights of United States Nationals in Morocco (France v. United States of America),
Judgment, ICJ Rep. 1952, 176
− Nottebohm Case (Liechtenstein v. Guatemala), Preliminary Objection, Judgment, ICJ
Rep. 1953,111
− Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and
United States of America), Preliminary Question, Judgment, ICJ Rep. 1954, 19
− Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, Judgment, ICJ Rep. 1955,
4
− Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections, ICJ
Rep. 1957, 125
− Interhandel Case (Switzerland v. United States of America), Preliminary Objections,
Judgment, ICJ Rep. 1959, 6
− Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v.
Nicaragua), Judgment, Merits, ICJ Rep. 1960, 192
− Right of Passage over Indian Territory (Portugal v. India), Merits, Judgment, ICJ Rep.
1960, 6
− South West Africa (Ethiopia v. South Africa/Liberia v. South Africa), Preliminary
Objections, Judgment, ICJ Rep. 1962, 319

452
− Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, ICJ Rep. 1962, 6
− South West Africa (Ethiopia v. South Africa/Liberia v. South Africa), Second Phase,
Judgment, ICJ Rep. 1966, 6
− North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal
Republic of Germany v. the Netherlands), Judgment, ICJ Rep. 1969, 3
− Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second
Phase, Judgment, ICJ Rep. 1970, 3
− Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction, Judgment, ICJ Rep.
1973, 3
− Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Rep. 1974, 3
− Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, 253
− Nuclear Tests (New Zealand v. France), Judgment, ICJ Rep. 1974, 457
− Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment, ICJ Rep. 1978, 3
− United States Diplomatic and Consular Staff in Tehran (United States of America v.
Iran), Judgment, ICJ Rep. 1980, 3
− Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Application to Intervene,
Judgment, ICJ Rep. 1981, 3
− Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgment, ICJ Rep. 1982, 18
− Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United
States of America), Judgment, ICJ Rep. 1984, 246
− Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, ICJ Rep. 1984, 392
− Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, ICJ Rep. 1985, 13
− Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, ICJ Rep. 1986, 14
− Frontier Dispute (Burkina Faso v. Mali), Judgment, ICJ Rep. 1986, 554
− Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, ICJ Rep. 1988, 69
− Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment, ICJ Rep.
1989, 15
− Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), Application to
Intervene, Judgment, ICJ Rep. 1990, 92
− Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections,
Judgment, ICJ Rep. 1992, 240
− Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8
April 1993, ICJ Rep. 1993, 3
− Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v.
Norway), Judgment, ICJ Rep. 1993, 38
− Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, ICJ Rep. 1994, 6
− East Timor (Portugal v. Australia), Judgment, ICJ Rep. 1995, 90
− Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections,
Judgment, ICJ Rep. 1996, 595
− Oil Platforms (Iran v. United States of America), Preliminary Objection, Judgment¸ ICJ
Rep. 1996, 803
− Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Rep. 1997, 7
− Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, ICJ Rep. 1999, 1045

453
− LaGrand (Federal Republic of Germany v. United States of America), Judgment, ICJ
Rep. 2001, 466
− Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v. Belgium), Judgment,
ICJ Rep. 2002, 3
− Armed Activities on the Territory of the Congo (Democratic Republic of Congo v.
Uganda), Judgment, ICJ Rep. 2005, 168
− Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the
Application, Judgment, ICJ Rep. 2006, 6
− Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ
Rep. 2007, 43
− Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of Congo),
Preliminary Objections, Judgment, ICJ Rep. 2007,

B. Advisory opinions

1. Advisory opinions of the Permanent Court of International Justice

− Nationality Decrees in Tunis and Morocco, Advisory Opinion, PCIJ Publ., Series B, No.
4
− Acquisition of Polish Nationality, Advisory Opinion, PCIJ Publ., Series B, No. 7
− Exchange of Greek and Turkish Populations, Advisory Opinion, PCIJ Publ., Series B,
No. 10
− Article 3, paragraph 2 of the Treaty of Lausanne, Advisory Opinion, PCIJ Publ., Series
B, No. 12

2. Advisory opinions of the International Court of Justice

− Admission of a State to the United Nations (Charter, Article 4), Advisory Opinion, ICJ
Rep. 1948, 57
− Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
ICJ Rep. 1949, 174
− Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase),
Advisory Opinion, ICJ Rep. 1950, 65
− Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, ICJ Rep. 1951, 14
− Effects of Awards of Compensation Made by the United Nations Administrative Tribunal,
Advisory Opinion, ICJ Rep. 1954, 47
− Judgments of the Administrative Tribunal of the I.L.O. upon Complaints Made against
the Unesco, Advisory Opinion, ICJ Rep. 1956, 77
− Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 256 (1970), Advisory
Opinion, ICJ Rep. 1971, 16
− Western Sahara, Advisory Opinion, ICJ Rep. 1975, 12
− Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep. 1996, 226
− Legal Consequences of the Construction of A Wall in the Occupied Palestinian
Territories, Advisory Opinion, ICJ Rep. 2004, 136

454
C. Opinions of judges of the Permanent Court of International Justice and the International
Court of Justice
− Dissenting Opinion Judge ANZILOTTI, Factory at Chorzów (Germany v. Poland),
Interpretation of Judgments Nos. 7 and 8, Judgment, PCIJ Publ., Series A, No. 13, 23
− Dissenting Opinion Judge NEGULESCO, Jurisdiction of the European Commission of the
Danube between Galatz and Braila, Advisory Opinion, PCIJ Publ., Series B, No. 14, 84
− Seperate Opinion Judge SCHÜCKING, The Oscar Chinn Case (United Kingdom v.
Belgium), Judgment, PCIJ Publ., Series A/B, No. 63, 148
− Separate Opinion Judge MCNAIR, International Status of South West Africa, Advisory
Opinion, ICJ Rep. 1950, 146
− Separate Opinion Judge LAUTERPACHT, Certain Norwegian Loans (France v. Norway),
Judgment, ICJ Rep. 1957, 34
− Separate Opinion Judge MORENO-QUINTANA, Application of the Convention of 1902
Governing the Guardianship of Infants (The Netherlands v. Sweden), Judgment, ICJ Rep.
1958, 102
− Separate Opinion Judge SPENDER, Interhandel Case (Switzerland v. United States), ICJ
Rep. 1959, 54
− Dissenting Opinion Judge ad hoc FERNANDES, Right of Passage over Indian Territory
(Portugal v. India), Merits, Judgment, ICJ Rep. 1960, 123
− Separate Opinion Vice-President ALFARO, Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, ICJ Rep. 1962, 38
− Dissenting Opinion Judge WELLINGTON KOO, Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, ICJ Rep. 1962, 75
− Dissenting Opinion Judge SPENDER, Temple of Preah Vihear (Cambodia v. Thailand),
Merits, Judgment, ICJ Rep. 1962, 101
− Dissenting Opinion Judge TANAKA, North Sea Continental Shelf Cases (Federal Republic
Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ
Rep. 1969, 172
− Dissenting Opinion Judge MORELLI, North Sea Continental Shelf Cases (Federal
Republic Germany v. Denmark/Federal Republic of Germany v. the Netherlands),
Judgment, ICJ Rep. 1969, 198
− Dissenting Opinion Judge LACHS, North Sea Continental Shelf Cases (Federal Republic
Germany v. Denmark/Federal Republic of Germany v. the Netherlands), Judgment, ICJ
Rep. 1969, 219
− Dissenting Opinion Judge SØRENSEN, North Sea Continental Shelf Cases (Federal
Republic Germany v. Denmark/Federal Republic of Germany v. the Netherlands),
Judgment, ICJ Rep. 1969, 242
− Separate Opinion Judge AMMOUN, Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain), Second Phase, Judgment, ICJ Rep. 1970, 287
− Separate Opinion Judge DE CASTRO, 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 Rep. 1971, 170
− Separate Opinion Judge GROS, Nuclear Tests (Australia v. France), Judgment, ICJ Rep.
1974, 276
− Separate Opinion Judge PETRÉN, Nuclear Tests (Australia v. France), Judgment, ICJ Rep.
1974, 298
− Joint Dissenting Opinion Judges ONYEAMA, DILLARD, JIMÉNEZ DE ARÉCHAGA, and
WALDOCK, Nuclear Tests (Australia v. France), Judgment, ICJ Rep. 1974, 312

455
− Dissenting Opinion Judge ad hoc BARWICK, Nuclear Tests (Australia v. France),
Judgment, ICJ Rep. 1974, 391
− Dissenting Opinion Judge SCHWEBEL, Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10
May 1984, ICJ Rep. 1984, 190
− Separate Opinion Judge NAGENDRA SINGH, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep.
1986, 151
− Separate Opinion Judge SETTE-CAMARA, Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Rep.
1986, 192
− Separate Opinion Judge ad hoc LAUTERPACHT, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993, ICJ
Rep. 1993, 407
− Separate Opinion Judge RANJEVA, East Timor (Portugal v. Australia), Judgment, ICJ
Rep. 1995, 129
− Dissenting Opinion Judge WEERAMANTRY, East Timor (Portugal v. Australia), Judgment,
ICJ Rep. 1995, 139
− Dissenting Opinion Judge SKUBISZEWSKI, East Timor (Portugal v. Australia), Judgment,
ICJ Rep. 1995, 224
− Dissenting Opinion Judge WEERAMANTRY, Legality of the Use by a State of Nuclear
Weapons in Armed Conflict, Advisory Opinion, ICJ Rep. 1996, 101
− Declaration Judge BEDJAOUI, Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Rep. 1996, 268
− Declaration Judge SHI, Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, ICJ Rep. 1996, 277
− Declaration Judge VERESHCHETIN, Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Rep. 1996, 279
− Separate Opinion Judge GUILLAUME, Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, ICJ Rep. 1996, 287
− Dissenting Opinion Judge WEERAMANTRY, Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, ICJ Rep. 1996, 429
− Declaration Judge ODA, Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and
Montenegro)), Preliminary Objections, Judgment, ICJ Rep. 1996, 625
− Separate Opinion Judge WEERAMANTRY, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia (Serbia and Montenegro)), Preliminary Objections, Judgment, ICJ Rep. 1996,
640
− Separate Opinion Judge WEERAMANTRY, Gabčíkovo-Nagymaros Project (Hungary v.
Slovakia), Judgment, ICJ Rep. 1997, 88
− Dissenting Opinion Judge Al-KHASAWNEH, Aerial Incident of 10 August 1999 (Pakistan
v. India), Jurisdiction of the Court, Judgment, ICJ Rep. 2000, 48
− Separate Opinion Judge KOOIMANS, Oil Platforms (Iran v. United States of America),
Merits, Judgment, ICJ Rep. 2003, 246
− Dissenting Opinion Judge AL KHASAWNEH, Oil Platforms (Iran v. United States of
America), Merits, Judgment, ICJ Rep. 2003, 266

456
− Dissenting Opinion Judge ELARABY, Oil Platforms (Iran v. United States of America),
Merits, Judgment, ICJ Rep. 2003, 290
− Separate Opinion Judge SIMMA, Oil Platforms (Iran v. United States of America), Merits,
Judgment, ICJ Rep. 2003, 324
− Separate Opinion Judge KOOIJMANS, Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 219
− Separate Opinion of Judge HIGGINS, Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 207
− Separate Opinion Judge ELARABY, Legal Consequences of the Construction of A Wall in
the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 246
− Separate Opinion Judge SIMMA, Armed Activities on the Territory of the Congo
(Democratic Republic of Congo v. Uganda), Judgment, ICJ Rep. 2005, 334
− Dissenting Opinion Judge KOROMA, Armed Activities on the Territory of the Congo
(Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
ICJ Rep. 2006, 55
− Joint Dissenting Opinion Judges HIGGINS, KOOIJMANS, ELARABY, OWADA, and SIMMA,
Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic
Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, ICJ Rep. 2006,
65
− Separate Opinion Judge ad hoc DUGARD, Armed Activities on the Territory of the Congo
(Democratic Republic of Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
ICJ Rep. 2006, 86
− Separate Opinion Judge ad hoc KREĆA, Application of the Convention on the Prevention
and the Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Merits, Judgment, ICJ Rep. 2007, 457

D. Pleadings and statements

− Fisheries Case (United Kingdom v. Norway), Reply submitted by the Government of the
United Kingdom, at http://www.icj-cij.org/docket/files/5/11027.pdf
− Fisheries Case (United Kingdom v. Norway), Duplique soumise par le Gouvernement du
Royaume de Norvège, at http://www.icj-cij.org/docket/files/5/11029.pdf
− Nuclear Tests (Australia v. France), Memorial on Jurisdiction and Admissibility
Submitted by the Government of Australia, at http://www.icj-
cij.org/docket/files/58/9443.pdf
− Nuclear Tests (New Zealand v. France), Memorial on Jurisdiction and Admissibility
Submitted by the Government of New Zealand, at http://www.icj-
cij.org/docket/files/59/9451.pdf
− Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Counter Memorial of the United
States, at http://www.icj-cij.org/docket/files/70/9627.pdf
− Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Memorial of Nicaragua, at http://www.icj-
cij.org/docket/files/70/9619.pdf
− East Timor (Portugal v. Australia), Mémoire du gouvernement de la République
portugaise, Volume I, at www.icj-cij.org/docket/files/84/6834.pdf
− East Timor (Portugal v. Australia), Réplique du gouvernement de la République
portugaise, Volume I, at http://www.icj-cij.org/docket/files/84/6838.pdf

457
− East Timor (Portugal v. Australia), Countermemorial of Australia, at http://www.icj-
cij.org/docket/files/84/6837.pdf
− Legality of the Threat or Use of Nuclear Weapons, Written Statement of Nauru (15 June
1995), at http://www.icj-cij.org/docket/files/95/8680.pdf;
− Legality of the Threat or Use of Nuclear Weapons, Written Statement of Malaysia,
(19/06/1995), at http://www.icj-cij.org/docket/files/95/8696.pdf
− Legality of the Threat or Use of Nuclear Weapons, Written Statement of Mexico (19 June
1995), at www.icj-cij.org/docket/files/95/8694.pdf
− Legality of the Threat or Use of Nuclear Weapons, Written Comments of Egypt
(September 1995), at www.icj-cij.org/docket/files/95/8722.pdf
− Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections
of the Federal Republic of Yugoslavia, at www.icj-cij.org/docket/files/91/8618.pdf
− Oil Platforms (Iran v. United States of America), Reply and Defence to Counter-claim
Submitted by the Islamic Republic of Iran, Vol. 1, 10 March 1999, at http://www.icj-
cij.org/docket/files/90/8630.pdf
− Armed Activities on the Territory of the Congo (Democratic Republic of Congo v.
Uganda), Mémoire de la République démocratique du Congo, Vol I, 2000, at
http://www.icj-cij.org/docket/files/116/8321.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of the Kingdom of Saudi Arabia (30 January 2004),
at www.icj-cij.org/docket/files/131/1543.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of Egypt (28 January 2004), at http://www.icj-
cij.org/docket/files/131/1547.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of the League of Arab States (28 January 2004), at
http://www.icj-cij.org/docket/files/131/1545.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of Palestine (30 January 2004), at http://www.icj-
cij.org/docket/files/131/1555.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of Jordan (30 January 2004), at http://www.icj-
cij.org/docket/files/131/1559.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of South Africa (30 January 2004), at
http://www.icj-cij.org/docket/files/131/1597.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of Morocco (30 January 2004), at http://www.icj-
cij.org/docket/files/131/1585.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, Written Statement of France (30 January 2004), §§ 69-71, at
http://www.icj-cij.org/docket/files/131/1591.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Ireland (17
April 2009), at http://www.icj-cij.org/docket/files/141/15662.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Iran (17
April 2009), at http://www.icj-cij.org/docket/files/141/15646.pdf

458
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of The
Netherlands (17 April 2009), at http://www.icj-cij.org/docket/files/141/15632.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Poland (14
April 2009), at http://www.icj-cij.org/docket/files/141/15632.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of the Russian
Federation (16 April 2009), at http://www.icj-cij.org/docket/files/141/15628.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Serbia (17
April 2009), at http://www.icj-cij.org/docket/files/141/15642.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Spain (April
2009), at http://www.icj-cij.org/docket/files/141/15644.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Written Statement of Switzerland
(15 April 2009), at http://www.icj-cij.org/docket/files/141/15614.pdf
− Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic
Republic of Congo v. Rwanda), Demande en indication de mesures conservatoires, at
www.icj-cij.org/docket/files/126/8277.pdf
− Armed Activities on the Territory of the Congo (New Application: 2002)(Democratic
Republic of Congo v. Rwanda), Memorial of Rwanda, at www.icj-
cij.org/docket/files/126/8280.pdf
− Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of Congo v. Rwanda), Requête introductive d’instance à la Cour international
de Justice de la Haye contre République du Rwanda, at http://www.icj-
cij.org/docket/files/126/7070.pdf
− North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark/Federal
Republic of Germany v. the Netherlands), CR 1968, 23 October to 11 November 1968
and on 20 February 1969, at http://www.icj-cij.org/docket/files/52/9359.pdf
− Legality of the Use of Force (Yugoslavia v. Belgium), Request for the Indication of
Provisional Measures, Oral Statement of Belgium, CR 99/15, 10 May 1999, at
http://www.icj-cij.org/docket/files/105/4513.pdf
− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of Egypt, CR 1995/23,
1 November 1995, at www.icj-cij.org/docket/files/95/5927.pdf
− Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Oral Statement of
France, CR 1995/24, 2 November 1995, at www.icj-cij.org/docket/files/95/5929.pdf
− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of Indonesia, CR
1995/25, 3 November 1995, at www.icj-cij.org/docket/files/95/5931.pdf
− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of Iran, CR 1995/26, 6
November 1995, at www.icj-cij.org/docket/files/95/5933.pdf
− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of New Zealand, CR
1995/28, 9 November 1995, at www.icj-cij.org/docket/files/95/5937.pdf
− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of New Zealand, CR
1995/28, 9 November 1995, at www.icj-cij.org/docket/files/95/5937.pdf
− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of the Philippines, CR
1995/28, 9 November 1995, at www.icj-cij.org/docket/files/95/5937.pdf

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− Legality of the Threat or Use of Nuclear Weapons, Oral Statement of the Russian
Federation, CR 1995/29, 10 November 1995, at www.icj-cij.org/docket/files/95/5939.pdf
− Oil Platforms (Iran v. United States), Oral Statement of Iran, CR 2003/8, 19 February
2003, at http://www.icj-cij.org/docket/files/90/5141.pdf
− Oil Platforms (Iran v. United States of America), Oral Statement of Iran, CR 2008/16, 3
March 2003, at http://www.icj-cij.org/docket/files/90/5173.pdf
− Oil Platforms (Iran v. United States of America), Oral Statement of the United States of
America, CR 2003/12, 26 February 2003, 18-19, at http://www.icj-
cij.org/docket/files/90/5157.pdf
− Activities on the Territory of the Congo (New Application: 2002)(Democratic Republic of
the Congo v. Rwanda), Request for the Indication of Provisional Measures, Oral
Statement of the Democratic Republic of the Congo, CR 2002/36, 13 June 2002, at
http://www.icj-cij.org/docket/files/126/4147.pdf
− Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Oral Statement of Algeria, CR 2004/2, 23 February 2003, at www.icj-
cij.org/docket/files/131/1507.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Oral Statement of Vietnam, CR
2009/33, 11 December 2009, at http://www.icj-cij.org/docket/files/141/15736.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Oral Statement of Jordan, CR
2009/31, 9 December 2009, at http://www.icj-cij.org/docket/files/141/15728.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Oral Statement of the United
States of America, CR 2009/30, 8 December 2009, at http://www.icj-
cij.org/docket/files/141/15726.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo,Oral Statement of the Russian
Federation, CR 2009/30, 8 December 2009, at http://www.icj-
cij.org/docket/files/141/15726.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Oral Statement of Azerbaijan,
CR/2009/27, 3 December 2009, at http://www.icj-cij.org/docket/files/141/15716.pdf
− Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo, Oral Statement of Albania, CR
2009/26, 2 December 2009, at http://www.icj-cij.org/docket/files/141/15714.pdf

E. Addresses by the Presidents of the International Court of Justice

− Judge SCHWEBEL, “Address to the Plenary Session of the General Assembly of the
United Nations” (1999), at http://www.icj-
cij.org/court/index.php?pr=87&pt=3&p1=1&p2=3&p3=1
− Judge GUILLAUME, “Address to the United Nations General Assembly” (2000), at
http://www.icj-cij.org/court/index.php?pr=84&pt=3&p1=1&p2=3&p3=1
− Judge GUILLAUME, “The Proliferation of International Judicial Bodies: The Outlook for
the International Legal Order, Speech to the Sixth Committee of the General Assembly of
the United Nations” (2000), at http://www.icj-
cij.org/court/index.php?pr=85&pt=3&p1=1&p2=3&p3=1

460
− Judge GUILLAUME, “Speech to the General Assembly of the United Nations” (2001), at
http://www.icj-cij.org/court/index.php?pr=82&pt=3&p1=1&p2=3&p3=1

III. Case law of human rights courts and committees

A. European Commission on Human Rights and European Court of Human Rights

1. European Commission on Human Rights

− Austria v. Italy, Application No. 788/60, Decision on the Admissibility of Application, 11
January 1961, Yearbook of the European Convention on Human Rights 1961, 116.
− Greek Case, Application Nos. 3321/67, 3322/67, 3323/67, 3324/67, Report of 5
November 1969, Yearbook of the European Convention on Human Rights 1969, 1
− Cyprus v. Turkey, Application 8007/77, Decision on the Admissibility of the Application,
10 July 1978, Decisions and Reports, Vol. 13, 85
− Jespers v. Belgium, Application No. 8403/78, Report of 14 December 1981, Decisions
and Reports, Vol. 27, 61
− Stewart v. United Kingdom, Application No. 10044/82, Decision on the Admissibility of
the Application, 10 July 1984, Decisions and Reports, Vol. 39, 162

2. European Court of Human Rights

− Lawless v. Ireland (No. 3), Application No. 332/57, Merits, Judgment, 1 July 1961,
Series A, No. 3
− Case “relating to certain aspects of the laws on the use of languages in education in
Belgium” v. Belgium, Application Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63,
and 2126/64, Merits, Judgment, 23 July 1968, Series A, No. 6
− De Wilde, Ooms and Versyp v. Belgium, Application Nos. 2832/66, 2835/66 and 2899/66,
Merits, Judgment, 18 June 1971, Series A, No. 12
− Ringeisen v. Austria, Application No. 2614/65, Merits, Judgment, 16 July 1971, Series A,
No. 13
− Golder v. The United Kingdom, Application No. 4451/70, Merits and Just Satisfaction,
Judgment, 21 February 1975, Series A, No. 18
− Ireland v. The United Kingdom, Application No. 5310/77, Merits and Just Satisfaction,
Judgment, 18 January 1979, Series A, No. 25
− Airey v. Ireland, Application No. 6289/73, Merits, Judgment, 9 October 1979, Series A,
No. 32
− Buchholz v. Germany, Application No. 7759/77, Merits, Judgment, 6 May 1981, Series A,
No. 42
− Piersack v. Belgium, Application No. 8692/79, Merits, Judgment, 1 October 1982, Series
A, No. 53
− Campbell and Fell v. The United Kingdom, Application Nos.7819/77 and 7878/77,
Merits and Just Satisfaction, Judgment, 28 May 1984, Series A, No. 80
− Colozza v. Italy, Application No. 9024/80, Merits and Just Satisfaction, Judgment, 12
February 1985, Series A, No. 89
− Bozano v. France, Application No. 9990/82, Merits, Judgment, 18 December 1986,
Series A, No. 111
− Belilos v. Switzerland, Application No. 10328/83, Merits and Just Satisfaction, Judgment,
29 April 1988, Series A, No. 132

461
− Barberà, Messegué and Jabargo v. Spain, Application No. 10590/83, Merits, Judgment,
6 December 1988, Series A, No. 146
− Soering v. The United Kingdom, Application No. 14038/88, Merits and Just Satisfaction,
Judgment, 7 July 1989, Series A, No. 161
− H. v. France, Application No. 10073/82, Merits and Just Satisfaction, Judgment, 24
October 1989, Series A, No. 162-A
− Loizidou v. Turkey, Application No. 15318/89, Preliminary Objections, Judgment, 23
March 1995, Series A, 1995, No. 310
− McCann and Others v. The United Kingdom, Application No. 18984/91, Merits and Just
Satisfaction, Judgment, 27 September 1995, Series A, No. 324
− Saunders v. The United Kingdom, Application No. 19187/91, Merits and Just
Satisfaction, Judgment, 17 December 1996, Reports of Judgments and Decisions 1996-
VI, No. 24, 2017
− Loizidou v. Turkey, Application No. 15318/89, Merits and Just Satisfaction, Judgment,
18 December 1996, Reports of Judgments and Decisions 1996-VI, No. 26, 2216
− Aksoy v. Turkey, Application No. 21987/93, Merits and Just Satisfaction, Judgment, 18
December 1996, Reports of Judgments and Decisions 1996-VI, 2260
− Findlay v. The United Kingdom, Merits and Just Satisfaction, Judgment, 25 February
1997, Reports of Judgments and Decisions 1997-I, No. 30, 263
− Tsirlis and Kouloumpas v. Greece, Application Nos. 19233/91 and 19234/91, Merits and
Just Satisfaction, Judgment, 29 May 1997, Reports of Judgments and Decisions 1997-III,
No. 38, 909
− Aydin v. Turkey, Application No.23178/94, Merits and Just Satisfaction, Judgment, 25
September 1997, Reports of Judgments and Decisions 1997-VI, No. 50, 1866
− Kurt v. Turkey, Application No. 24276/94, Merits and Just Satisfaction, Judgment, 25
May 1998, Reports of Judgments and Decisions 1998-III, No. 74, 1152
− Incal v. Turkey, Application No. 62678/93, Merits and Just Satisfaction, Judgment, 8
June 1998, Reports of Judgments and Decisions 1998-IV, No. 78, 1547
− Ergi v. Turkey, Application No. 23818/94, Merits and Just Satisfaction, Judgment, 28
July 1998, Reports of Judgments and Decisions 1998-IV, No. 81, 1751
− Aerts v. Belgium, Application No. 25357/94, Merits and Just Satisfaction, Judgment, 30
July 1998, Reports of Judgments and Decisions 1998-V, No. 83, 1939
− A v. The United Kingdom, Application No. 25599/94, Merits and Just Satisfaction,
Judgment, 23 September 1998, Reports of Judgments and Decisions 1998-VI, No. 90,
2692
− Osman v. United Kingdom, Application No. 23452, Merits and Just Satisfaction,
Judgment, 28 October 1998, Reports of Judgments and Decisions 1998-VIII, No. 95,
3124
− Waite and Kennedy v. Germany, Application No. 26083/94, Merits, Judgment, 18
February 1999, Reports of Judgments and Decisions 1999-I, 393
− Selmouni v. France, Application No. 25803/94, Merits and Just Satisfaction, Judgment,
28 July 1999, Reports of Judgments and Decisions 1999-V, 149
− T. v. The United Kingdom, Application No. 24724/94, Merits and Just Satisfaction,
Judgment, 16 December 1999, at
http://cmiskp.echr.coe.int/tkp197/search.asp?sessionid=73099937&skin=hudoc-en
− V. v. The United Kingdom, Application No. 24888/94, Merits and Just Satisfaction,
Judgment, 16 December 1999, Reports of Judgments and Decisions 1999-IX, 111
− Witold Litwa v. Poland, Application No. 26629/95, Merits and Just Satisfaction,
Judgment, 4 April 2000, Reports of Judgments and Decisions 2000-III, 289

462
− İlhan v. Turkey, Application No. 22277/93, Merits and Just Satisfaction, Judgment, 27
June 2000, Reports of Judgments and Decisions 2000-VII, 267
− Salman v. Turkey, Application No. 21986/93, Merits and Just Satisfaction, Judgment, 27
June 2000, Reports of Judgments and Decisions 2000-VII, 365
− Jėčius v. Lithuania, Application No. 34578/97, Merits and Just Satisfaction, Judgment,
31 July 2000, Reports of Judgments and Decisions 2000-IX, 235
− Z and Others v. The United Kingdom, Application No. 29392/95, Merits and Just
Satisfaction, Judgment, 10 May 2001, Reports of Judgments and Decisions 2001-V, 1
− Al-Adsani v. The United Kingdom, Application No. 35763/97, Merits, Judgment, 21
November 2001, Reports of Judgments and Decisions 2001-XI, 79
− McElhinney v. Ireland, Application No. 31253/96, Merits, Judgment, 21 November 2001,
Reports of Judgments and Decisions 2001-XI, 761
− Banković et al. v. Belgium et al., Application No. 52207/99, Admissibility, Decision, 12
December 2001, Reports of Judgments and Decisions 2001-XII, 333
− A. v. The United Kingdom, Application No. 35373/97, Merits, Judgment, 17 December
2002, Reports of Judgments and Decisions 2002-X, 119
− M.C. v. Bulgaria, Application No. 39272/98, Merits and Just Satisfaction, Judgment, 4
December 2003, Reports of Judgments and Decisions 2003-XII, 1
− Ilaşcu and Others v. Moldova and the Russian Federation, Application No. 48787/99,
Merits and Just Satisfaction, Judgment, 8 July 2004, Reports of Judgments and Decisions
2004-VII, 179
− Khashiyev and Akayeva v. The Russian Federation, Application Nos. 7942/00 and
57945/00, Merits and Just Satisfaction, Judgment, 24 February 2005, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
− Isayeva, Yusupova and Bazayeva v. The Russian Federation, Application Nos. 57947/00,
57948/00 and 7949/00, Merits and Just Satisfaction, Judgment, 24 February 2005, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
− Isayeva v. The Russia Federation, Application No. 57950/00, Merits and Just
Satisfaction, Judgment, 24 February 2005, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
− Öcalan v. Turkey, Application No. 46221/99, Merits and Just Satisfaction, Judgment, 12
May 2005, Reports of Judgments and Decisions 2005-IV, 131
− Siliadin v. France, Application No. 73316/01, Merits and Just Satisfaction, Judgment, 26
July 2005, Reports of Judgments and Decisions 2005-VII, 333
− Roche v. The United Kingdom, Application No. 32555/96, Merits, Judgment, 19 October
2005, Report of Judgments and Decisions 2005-X, 87
− A and Others v. The United Kingdom, Application No. 3455/05, Merits and Just
Satisfaction, Judgment, 19 February 2009, at
http://cmiskp.echr.coe.int/tkp197/search.asp?sessionid=73099937&skin=hudoc-en
− Taysumov v. The Russian Federation, Application No. 21810/03, Merits and Just
Satisfaction, Judgment, 14 May 2009, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
− Al-Skeini and Others v. The United Kingdom, Application No. 55721/07, Merits and Just
Satisfaction, Judgment, 7 July 2011, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en
− Al-Jedda v. The United Kingdom, Application No. 27021/08, Merits and Just
Satisfaction, Judgment, 7 July 2011, at
http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en

463
3. Opinions of Judges
− Joint Dissenting Opinion Judge ROZAKIS and CAFLISH, Joined by Judges WILDHABER,
COSTA, CABRAL BARRETO and VAJIĆ, Al-Adsani v. The United Kingdom, Application No.
35763/97, Merits, Judgment, 21 November 2001, Reports of Judgments and Decisions
2001-XI, 111

B. Inter-American Commission on Human Rights and Inter-American Court of Human Rights

1. Inter-American Commission on Human Rights

− Fernando and Raquel Mejia v. Peru, Case No. 10.970, Report No. 5/96,
OEA/Ser.L/V/II.91 Doc. 7, (1985)
− Pinkerton and Roach v. United States of America, Resolution 3/87, Case No. 9641,
OEA/Ser.L/V/II.71, Doc. 9 rev.1 (1987)
− Dissenting Opinion MARCO GERARDO MONROY CABRA, Pinkerton and Roach v. United
States of America, Resolution 3/87, Case No. 9641, OEA/Ser.L/V/II.71, Doc. 9 rev.1
(1987)
− Coard et al. v. United States of America, Case 10.951, Report No. 109/99,
OEA/Ser.L/V/II.106 Doc.6 rev. (1999)
− Fernando and Raquel Mejia v. Peru, Case No. 10.970, Report No. 5/96,
OEA/Ser.L/V/II.91 Doc. 7 (1995), 185
− Survivors of the Tugboat ‘13 de Marzo’ v. Cuba, Case 11.436, Report No. 47/96,
OEA/Ser.L/V/II.95 Doc. 7 rev. (1996), 127
− Juan Carlos Abella v. Argentina, Case 11.137, Report No. 55/97, OEA Ser.L/V/II.95
Doc. 7 rev. (1997)
− Michael Domingues v. United States of America, Case 12.285, Report No. 62/02, Doc.5
Rev.1 (2002), 913
− “Report on Terrorism and Human Rights”, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr.
(2002)
− Graham v. The United States, Case 11.193, Report No. 97/03, OEA/Ser./L/V/II.114 Doc.
70 rev. 1 (2003)

2. Inter-American Court of Human Rights

a) Judgments
− Aloeboetoe et al. v. Suriname, Reparation and Costs, Judgment, 10 September 1993,
Series C, No. 15
− Genie-Lacayo v. Nicaragua, Merits, Reparation and Costs, Judgment, 29 January 1997,
Series C, No. 30
− Suárez Rosero v. Ecuador, Merits, Judgment, 12 November 1997, Series C, No. 35
− Castillo-Páez v. Peru, Reparations and Costs, Judgment, 27 November 1998, Series C,
No. 43
− Ivcher Bronstein v. Peru, Competence, Judgment, 24 September 1999, Series C, No. 54
Constitutional Court Case, Competence, Judgment, 24 September 1999, Series C, No. 55
− Cesti Hurtado v. Peru, Merits, Judgment, 29 September 1999, Series C, No. 56
− Juan Humberto Sánchez v. Honduras, Preliminary Objection, Merits, Reparations and
Costs, Judgment, 7 June 2003, Series C, No. 99

464
− Maritza Urrutia v. Guatemala, Merits, Reparation and Costs, Judgment, 27 November
2003, Series C, No. 103
− Hermanos Gómez Paquiyauri v. Peru, Merits, Reparation and Costs, Judgment, 8 July
2004, Series C, No. 110
− Juvenile Reeducation Institute v. Paraguay, Preliminary Objections, Merits, Reparations
and Costs, Judgment, 2 September 2004, Series C, No. 112
− Tibi v. Ecuador, Preliminary Objections, Merits, Reparation and Costs, Judgment, 7
September 2004, Series C, No. 114
− Caesar v. Trinidad & Tobago, Merits, Reparation and Costs, Judgment, 11 March 2005,
Series C, No. 123
− Yakye Axa Indigenous Community v. Paraguay, Merits, Reparation and Costs, Judgment,
17 June 2005, Series C, No. 125
− Fermín Ramírez v. Guatemala, Merits, Reparation and Costs, Judgment, 20 June 2005,
Series C, No. 126
− Yatama v. Nicaragua, Preliminary Objections, Merits, Reparation and Costs, Judgment,
23 June 2005, Series C, No. 127
− Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparation and Costs,
Judgment, 29 March 2006, Series C, No. 146
− Ximines Lopes v. Brasil, Merits, Reparation and Costs, Judgment, 4 July 2006, Series C,
No. 149
− Goiburú et al. v. Paraguay, Merits, Reparations and Costs, Judgment, 22 September
2006, Series C, No. 153
− La Cantuta v. Peru, Merits, Reparations and Costs, Judgment, 29 November 2006, Series
C, No. 162

b) Advisory opinions

− The Effect of Reservations on the Entry Into Force of the American Convention on
Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82, 24 September 1982, Series
A, No. 2
− Habeas Corpus in Emergency Situations (Arts. 27 (2), 25 (1) and 7 (6) American
Convention on Human Rights), Advisory Opinion OC-8/87, 30 January 1987, Series A,
No. 8
− The Right to Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law, Advisory Opinion OC-16/99, 1 October 1999, Series A, No. 16
− Legal Status and Human Rights of the Child, Advisory Opinion OC-17/02, 28 August
2002, Series A, No. 17
− Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-
18/03, 17 September 2003, Series A, No. 18

C. African Commission on Human Rights

− Resolution on the Right to Recourse and Fair Trial, ACHPR/Res4.(XI)92 (1992)
− Dakar Declaration on the Right to a Fair Trial in Africa, Annex to Resolution on the
Right to Fair Trial and Legal Aid in Africa, ACHPR/Res.41(XXVI)99 (1999)
− International Pen and Others (on behalf of Saro-Wiwa) v. Nigeria, Communication Nos.
137/94, 139/94, 154/96 and 161/97, African Human Rights Law Reports 2000, 212
− Constitutional Rights Project and Civil Liberties Organisation v. Nigeria,
Communication Nos. 143/95 and 150/96, African Human Rights Law Reports 2000, 235

465
− Media Rights Agenda v. Nigeria, Communication No. 224/98, African Human Rights
Law Reports 2000, 262
− Amnesty International and Others v. Sudan, Communication Nos. 48/90, 50/91, 52/91
and 89/93, African Human Rights Law Reports 2000, 297
− Lawyers for Human Rights v. Swaziland, Communication No. 251/2002, African Human
Rights Law Reports 2005, 66

IV. Case law of international criminal tribunals

A. Nuremberg
− Judgment of the International Military Tribunal for the Trial of Major War Criminals
(1946), UK Command Paper Cmd. 6964
− Re United States v. Alfred Krupp et al., Trials of War Criminals before the Nuremberg
Military Tribunals under Control Council Law No. 10, Vol. IX, 1950, 1395

B. International Criminal Tribunal for the Former Yugoslavia

All the case law is available at www.icty.org

− Prosecutor v. Tadić, Case No. IT-94-1-AR72, Appeals Chamber, Decision on the
Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995
− Prosecutor v. Tadić, Case No. IT-94-1-T, Trial Chamber, Opinion and Judgment, 7 May
1997
− Prosecutor v. Jelesić, Case No. IT-95-10-T, Trial Chamber, Judgment, 14 December
1999,
− Prosecutor v. Delalić et al., Case No. IT-96-21-T, Trial Chamber, Judgment, 16
November 1998
− Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber, Judgment, 10
December 1998
− Prosecutor v. Tadić, Case No. IT-94-1-A, Appeals Chamber, Judgment, 15 July 1999
− Prosecutor v. Kupreškić et al., Case No. IT-95-16, Trial Chamber, Judgment, 14 January
2000
− Prosecutor v. Blaskič, Case No. IT-95-14-T, Trial Chamber, Judgment, 3 March 2000
− Prosecutor v. Furundžija, Case No. IT-95-17/1-A, Appeals Chamber, Judgment, 21 July
2000
− Prosecutor v. Delalić et al., Case No. IT-96-21-A, Appeals Chamber, Judgment, 20
February 2001
− Prosecutor v. Kunarac et al., Case No. IT-96-23 & IT-96-23/1-T, Trial Chamber,
Judgment, 22 February 2001
− Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-T, Trial Chamber, Judgment, 26
February 2001
− Prosecutor v. Tadić, Case No. IT-94-1-A-R77, Allegations of Contempt against Prior
Counsel Milan Vujin, Appeals Chamber, Judgment, 27 February 2001
− Prosecutor v. Jelesić, Case No. IT-95-10-A, Appeals Chamber, Judgment, 5 July 2001
− Prosecutor v. Krstić, Case No. IT-98-33-T, Trial Chamber, Judgment, 2 August 2001
− Prosecutor v. Kvočka et al., Case No. IT-98-30/1-T, Trial Chamber, Judgment, 2
November 2001
− Prosecutor v. Krnojelac, Case No. IT-97-25-T, Trial Chamber, Judgment, 15 March 2002

466
− Prosecutor v. Kunarac et al., Case No. IT-96-23-A & IT-96-23/1-A, Appeals Chamber,
Judgment, 12 June 2002
− Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-T, Trial Chamber, Judgment,
31 March 2003
− Prosecutor v. Krnojelac, Case No. IT-95-25-A, Appeals Chamber, 17 September 2003
− Prosecutor v. Simić et al., Case No. IT-95-9-T, Trial Chamber, Judgment, 17 October
2003
− Prosecutor v. Vasiljević, IT-98-32-A, Appeals Chamber, Judgment, 25 February 2004
− Prosecutor v. Blaškić, Case No IT-95-14-A, Appeals Chamber, Judgment, 29 July 2004
− Prosecutor v. Galić, Case No. IT-98-29-T, Trial Chamber, Judgment, 5 December 2004
− Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Appeals Chamber, Judgment,
17 December 2004
− Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-T, Trial Chamber, Judgment, 17
January 2005
− Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Appeals Chamber, Judgment, 28
February 2005
− Prosecutor v. Deronjić, Case No. IT-02-62-A, Appeals Chamber, Judgment, 20 July
2005
− Prosecutor v. Stakić, Case No. IT-97-24-A, Appeals Chamber, Judgment, 22 March 2006
− Prosecutor v. Brđanin, Case No. IT-99-36-A, Appeals Chamber, Judgment, 3 April 2007

C. International Criminal Tribunal for Rwanda

All the case law is available at www.ictr.org

− Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber, Judgment, 2 September
1998
− Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Trial Chamber,
Judgment, 21 May 1999
− Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Trial Chamber, Judgment, 6 December
1999
− Prosecutor v. Musema, Case No. ICTR-96-13-T, Trial Chamber, Judgment, 27 January
2000
− Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Trial Chamber, Judgment, 7 June
2001
− Prosecutor v. Semanza, Case No. ICTR-97-20-T, Trial Chamber, Judgment, 15 May
2003
− Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Trial Chamber, Judgment and
Sentence, 3 December 2003
− Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Trial Chamber, Judgment, 22
January 2004

D. Special Court for Sierra Leone

Available at http://www.sc-sl.org
− Prosecutor v. Norman et al., Case No. SCSL 2003-08-PT-108, Decision on the
Application of a Stay of Proceedings and Denial of Right to Appeal, Appeals Chamber, 4
November 2003

467
V. Case law of the European Court of First Instance and European Court of Justice
− NV Algemene Transport- en Expeditieonderneming Van Gend en Loos v. The
Netherlands Inland Revenue Administration, Case No. 26/62, Judgment, 5 February
1963, European Court Reports 1963, 1
− Internationales Handelsgesellschaft mbH v. Einfuhr- und Vorratstelle für Getreide und
Futtermittel, Case 11-70, Judgment, 17 December 1970, European Court Reports 1970,
1125
− J. Nold, Kohlen- und Baustoffgroßhandlung v. Commission of the European
Communities, Case 4-73, Judgment, 14 May 1974, European Court Reports 1974, 491
− Liselotte Hauer v. Land Rheinland-Pfalz, Case 44/79, Judgment, 13 December 1979,
European Court Reports 1979, 3727
− Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, Case 222/84,
Judgment, 15 May 1986, European Court Reports 1986, 1651
− A. Racke GmbH & Co. v. Hauptzollamt Mainz, Case No. C-162/96, Judgment, 16 June
1998, European Court Reports 1998, I-3655
− Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T-
306/01, Judgment, 21 September 2005, European Court Reports 2005, II-3533
− Kadi v. Council and Commission, Case T-315/01, Judgment, 21 September 2005,
European Court Reports 2005, II-3649

VI. Case law of the World Trade Organization

− Dispute Settlement Panel, United States – Restriction on Import of Tuna, 30 International
Legal Materials 1598
− Dispute Settlement Panel, United States – Restriction on Import of Tuna, 33 International
Legal Materials 842
− Dispute Settlement Panel, Korea – Measures Affecting Government Procurement, WTO
Doc. WT/DS163/R (2000)
− Appellate Body, European Communities – Measures concerning Meat and Meat Related
Products (Hormones), WTO Doc. WT/DS26/AB/R (1998)
− Appellate Body, United States – Import Prohibition of Certain Shrimp and Shrimp
Products, WTO Doc. WT/DS58/AB/R (1998)

VII. Central American Court of Justice

− Costa Rica v. Nicaragua, Judgment, 30 September 1916, American Journal of
International Law 1917, 181

VIII. Arbitration
− Russian Indemnity (Russia v. Turkey), Award of 11 November 1912, Reports of
International Arbitral Awards, Vol. XI, 421
− Lena Goldfields Ltd. v. U.S.S.R, Award of 3 September 1930, Cornell Law Quarterly
1950, 42
− Island of Palmas Arbitration (United States of America v. the Netherlands), Award of 4
April 1928, Reports of International Arbitral Awards, Vol. II, 829
− George Pinson (France) v. United Mexican States, Award of 19 October 1928, Reports of
International Arbitral Awards, Vol. V, 327

468
− Pablo Nájera (France) v. United Mexican States, Award of 19 October 1928, Reports of
International Arbitral Awards, Vol. V, 466
− Abu Dhabi Arbitration (1951), International and Comparative Law Quarterly 1952, 247
− Lac Lanoux (Spain v. France), Award of 16 November 1957, Reports of International
Arbitration Awards, Vol. XII, 281
− Détermination de la Frontière Maritime (Guinnée-Bissau v. Sénégal), Sentence arbitrale,
31 July 1989, Revue Générale de Droit International Public, 1990, 204
− Commission d'Arbitrage de la Conférence européenne pour la paix en Yougoslavie, Avis
No. 10, 4 July 1992, Revue Générale de Droit International Public 1993, 594
− The Republica Srpska v. The Federation of Bosnia and Herzegovina, Arbitration for the
Brcko Area, Arbitral Award, 14 February 1997, 36 International Legal Materials 1997,
399
− Eritrea-Ethiopia Claims Commission, Civilians Claim, Eritrea’s Claim 15, 16, 23, 27-32,
Partial Award, 17 December 2004, at www.pca.cpa.org
− Eritrea-Ethiopia Claims Commission, Civilians Claim, Ethiopia’s Claim 5, Partial
Award, 17 December 2004, at www.pca-cpa.org
− ICSID, CMS Gas Transmission Company v. Argentine Republic, Case No. ARB/01/8,
Award of 12 May 2005, at
http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=show
Doc&docId=DC504_En&caseId=C4

IX. National case law

Australia
− High Court, R. v. Tang, [2008] HCA 39

Canada
− Supreme Court, Suresh v. Canada (Minister of Citizenship and Immigration), 2002 1
S.C.R. 3
− Court of Appeal for Ontario, Bouzari v. Islamic Republic of Iran, 30 June 2004, 124
International Law Reports 427

Colombia
− Constitutional Court, Case No. C-225/95, Judgment, 18 May 1995, at
http://www.corteconstitucional.gov.co

France
− Cour de cassation, No. 02-45.961, 16 Decembre 2003, Bucheron c. République Fédérale
d’Allemagne, Bulletin 2003, I, No. 258

Germany
− Bundesgerichtshof, Judgment of 28 November 1990, Neue Juristische Wochenschrift
1991, 913

Greece
− Court of First Instance of Leivadia, Prefecture of Voiotia v. the Federal Republic of
Germany, Case No. 137/1997, 30 October 1997, Revue Hellénique de Droit International
1997, 595

469
− Areios Pagos, The Federal Republic of Germany v. Prefecture of Voiotia, Case No.
11/2000, 4 May 2000, Nomiko Vima 2000, 212
− Anotato Eidiko Dikastirio, Federal Republic of Germany v. Miltiadis Margellos, Case
No. 6/17-9-2002, 17 September 2002, in M. PANEZI, “Sovereign Immunity and Violation
of Ius Cogens Norms, AED 6/2002”, Revue Hellénique de Droit International 2003, 199

Hungary
− Constitutional Court, Decision of the Constitutional Court No. 53/1993, (X.13) AB, 13
October 1993, Magyar Közlöny 1993, No. 147

Israel
− Military Court sitting in Ramallah, Military Prosecutor v. Omar Mahmud Kassen et al.,
13 April 1969, 42 International Law Reports 470
− Supreme Court of Israel sitting as the High Court of Justice, Ajuri v. IDF Commander,
HCJ7015/02 and HCJ 7019/02, 3 September 2002, at www.court.gov.il

Italy
− Corte suprema di Cassazione, Ferrini c. Repubblica federale di Germania, sezione unite
n. 5044/04, depositata l’11.03.2004, Diritto e Giustizia del 16.03.2004, at
http://www.unipg.it/~scipol/tutor/uploads/caso_ferrini-sentenza_corte_di_cassazione-
11_03_05_001.doc

Japan
− District Court of Tokyo, Shimoda et al. v. The State, 17 December 1963, 32 International
Law Reports 626
− District Court of Tokyo, Shuikōsha case, 28 February 1966, Japanese Annual of
International Law 1969, 113

The Netherlands
− Rechtbank 's-Gravenhage, Mothers of Srebrenica, LJN: BD6795, 295247/HA ZA 07-
2973 Vonnis in de incidenten, 10 July 2008, at zoeken.rechtspraak.nl
− Gerechtshof 's-Gravenhage, Mothers of Srebrenica, LJN: BL8979, 200.022.151/01, 30
March 2010, at zoeken.rechtspraak.nl.

New Zealand
− Supreme Court, Attorney General v. Ahmed Zaoui et al., SC Civ 19/2004, [2005] NZSC
38

Poland
− Voivodship Court of Warsaw, In Re Koch, 9 March 1959, 30 International Law Reports
496

Switzerland
− Bundesgericht, Youssef Mustapha Nada v. SECO, Case No. 1A.45/2007, 14 November
2007, at www.bger.ch

United Kingdom
− Holman v. Johnson [1775], 1 Cowp. 341
− Richardson v. Mellish [1824], 130ER 294

470
− Spiers v. Hunt [1908], 1 KB 720
− Wilson v. Carnley [1908], 1 KB 729
− Re Mahmoud and Ispahani [1921], 2 KB 716
− Siveyer v. Allison [1935], 2 KB 403
− St. John Shipping Corporation v. Joseph Rank Ltd. [1957], 1 QB 267
− Archbolds (Freightage) Ltd v. S. Spanglett Ltd. [1961], 1 QB 374
− Coral Leisure Group Ltd. v. Barnett [1981] ICR 503
− House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and
Others - Ex Parte Pinochet [1999], 38 International Legal Materials 581
− High Court of Justice (Family Division), Emin v. Yeldag (Attorney-General and Secretary
of State for Foreign and Commonwealth Affairs Intervening), 5 October 2001, [2002] 1
FLR 956
− Court of Appeal, Ron Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya AS Saudiya
(the Kingdom of Saudi Arabia), 2004 EWCA Civ 1394
− House of Lords, A (FC) and Others (FC) v. Secretary of State for the Home Department,
[2005] UKHL 71
− Court of Appeal, R (on the application of Al-Jedda) v. Secretary of State for Defence,
[2006] EWCA Civ 327
− House of Lords, R. v. Jones et al., [2006] UKHL 16
− House of Lords, Ron Jones v. Ministry of Interior of the Kingdom of Saudi Arabia,
Judgment of 14 June 2006, [2006] UKHL 26

United States of America

− McCoy v. Flynn, 151 N.W. 465 (Iowa 1915)
− Loucks v. Standard Oil Co., 224 N.Y. 99 (1918)
− Ewing v. Halsey, 272 P. 187 (Kan. 1928)
− Jones v. Sovereign Camp, Woodmen of the World et al., 35 F.2d 345 (5th Cir. 1929).
− Fitzsimmons v. Eagle Brewing Co., 107 F.2d 712 (3rd Cir. 1939)
− Muschany et al. v. United States, 324 U.S. 49 (1944)
− Motley v. Motley, 120 S.E.2d 420 (N.C. 1961)
− Interinsurance Exch. v. Ohio Cas. Ins. Co., 373 P.2d 640 (Cal. 1962)
− International Hotels (Puerto Rico Corp.) v. Jack Golden, 15 N.Y. 2d 5 (1964)
− Sauls v. Stone, 241 So.2d 836 (Ala. 1970)
− Posner v. Posner, 257 So.2d 530 (Fla. 1972)
− Department of Human Resources v. Williams, 202 S.E.2d 504 (Ga. App. 1973)
− In Re Marriage of Dawley, 551 P.2d 323 (Cal. 1976)
− Marvin v. Marvin, 557 P.2d 106 (Cal. 1976)
− Reynolds v. Estate of Reynolds, 230 S.E.2d 842 (Ga. 1976)
− Tomlinson v. Tomlinson, 352 N.E.2d 785 (Ind. App. 1976)
− Cord v. Neuhoff, 573 P.2d 1170 (Nev. 1978)
− Hewitt et al. v. Hewitt, 394 N.E.2d 1204 (Ill. 1979)
− In Re Marriage of Winegard, 278 N.W.2d 505 (Iowa 1979)
− W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757 (1983)
− Wong v. Tenneco Inc., 702 P.2d 570 (Cal. 1985)
− United Paperworkers International Union v. Misco Inc., 484 U.S. 29 (1987)
− Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C.
Cir. 1988)
− Siderman de Blake et al. v. Republic of Argentina, 965 F.2d 699 (9th Cir. 1992)

471
− Saudi Arabia v. Nelson, 507 US 349 (1993)
− Princz v. Federal Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994)
− Fresh Cut v. Fazli, 650 N.E.2d 1126 (Ind. 1995)
− United States v. Matta-Ballesteros, 71 F.3d 754 (9th Cir.1995)
− Xuncax v. Gramajo, 886 F.Supp 162 (D. Mass. 1995)
− Hwang Geum Joo et al. v. Japan, 172 F.Supp. 2d 52 (D.C. Cir. 2001)
− Daynard v. Ness, Motley, Loadholt, Richardson & Poole, 188 F.Supp.2d 115 (D. Mass.
2002)
− Doe I v. Unocal Corp. , 395 F.3d 932 (9th Cir. 2002)
− Certain Underwriters at Lloyds London et al. v. Great Socialist People’s Libyan Arab
Jamahiriya et al., 2007 U.S. Dist. LEXIS 49032 (D.C. Cir. 2007)
− Hana Hilsenrath and al. v. The Swiss Confederation et al., 2007 U.S. Dist. LEXIS 81118
(N.D. Cal. 2007)
− Sarei et al. v. Rio Tinto PLC and Rio Tinto Limited, 221 F. Supp. 2d 1116 (9th Cir. 2007)

472
 NATIONAL LEGISLATION

Australia
− Foreign States Immunity Act (1985), at
http://www.comlaw.gov.au/Details/C2010C00145

Canada
− State Immunity Act (1982), R.S.C. 1985, c. S-18

Cambodia
− Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the
Prosecution of Crimes Committed During the Period of Democratic Kampuchea, as
Amended (2004), at http://www.eccc.gov.kh/sites/default/files/legal-
documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf

France
− Code Civil (1804), at
http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070721

Germany
− Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes
Against Peace and Against Humanity (1945), 3 Official Gazette Control Council for
Germany 1946, 50
− Strafprozeßordnung (1877), at http://www.gesetze-im-internet.de/stpo

Switzerland
− Bundesverfassung der Schweizerischen Eidgenossenschaft (1999), at
http://www.admin.ch/ch/d/sr/101/index.html
− Conseil fédéral, Message relative au Statut de Court pénale internationale, à la loi
fédérale sur la coopération avec la Cour pénale internationale ainsi qu’à une révision du
droit pénal, 15 November 2000, at http://www.admin.ch/ch/f/ff/2001/359.pdf

United Kingdom
− Sovereign Immunities Act (1978), at
http://www.legislation.gov.uk/ukpga/1978/33/enacted

United States of America

− Foreign Sovereign Immunities Act (1976), 28 U.S.C. § 1605

473
 BIBLIOGRAPHY

I. Books
− ALEXY, R., A Theory of Constitutional Rights, Oxford, Oxford University Press, 2010,
liii+462p
− ALLOT, P., Eunomia, New Order for a New World, Oxford, Oxford University Press,
1990, lvi+427p
− ANNACKER, C., Die Durchsetzung von erga omnes Verpflichtungen vor dem
Internationalen Gerichtshof, Hamburg, Verlag Dr. Kovac, 1994, 146p
− ANZILOTTI, D., Cours de droit international, Vol. I, Paris, Sirey, 1929, xii+534p
− BADESCU, C.G., Humanitarian Intervention and the Responsibility to Protect, Security
and Human Rights, New York, Routledge, 2011, xi+212p
− BEALE, H., HARTKAMP, A., KÖTZ, H. and TALLON, D., Cases, Materials and Text on
Contract Law, Oxford, Hart, 2002, xciv+993p
− BEATSON, J., Anson’s Law of Contract, Oxford, Oxford University Press, 2002, xcv+
739p
− BODIN, J., Les Six Livres de la République, Aalen, Scientia, 1961, 1060, 44, 44p
− BORK, R., Allgemeiner Teil des Bürgerlichen Gesetsbuch, Tübingen, Mohr Siebeck,
2006, xxxi+748p
− BOSSUYT, M.J. and HUMPHREY, J.P., Guide to the “Travaux Préparatoires” of the
International Covenant on Civil and Political Rights, Dordrecht, Nijhoff, 1987,
xxvi+851p
− BOTHE, M., PARSCH, K.J., SOLF, W.A. (eds.), New Rules for Victims of Armed Conflicts,
The Hague, Nijhoff, 1982, xxi+746p
− BROWN, G.W., Grounding Cosmopolitanism, Edinburgh, Edinburgh University Press,
2009, xiii+234p
− BROWNLIE, I., International Law and the Use of Force by States, Oxford, Clarendon,
1963, xxviii+532p
− BROWNLIE, I., Principles of Public International Law, Oxford, Oxford University Press,
2003, xlii+742p
− BULL, H., The Anarchical Society: A Study of Order in World Politics, London,
Macmillan, 1977, xv+335p
− BYERS, M., Custom, Power, and the Power of Rules, Cambridge, Cambridge University
Press, 1999, xxii+250p
− BYRON, C. War Crimes and Crimes against Humanity in the Rome Statute of the
International Criminal Court, Manchester, Manchester University Press, 2009, xvi+285p
− CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE (EUROPEAN CENTRE), The Concept
of Jus Cogens in International Law, Papers and Proceedings Conference on
International Law, Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for
International Peace, 1967, 140p
− CASSESE, A., International Law in a Divided World, Oxford, Clarendon, 1986, xv+429p
− CASSESE, A. and WEILER, J.H.H. (eds.), Change and Stability in International Law-
Making, Berlin, de Gruyter, 1988, x+214p
− CASSESE, A., Self-Determination of Peoples, A Legal Reappraisal, Cambridge,
Cambridge University Press, 1995, xviii+375p
− CASSESE, A., International Law, Oxford, Oxford University Press, 2001, xvii+469p
− CASSESE, A., International Law, Oxford, Oxford University Press, 2005, liii+558p
− CASSESE, A., International Criminal Law, Oxford, Oxford University Press, 2008,
li+455p

474
− COMBACAU, J. and SUR, S., Droit international public, Montchrestien, LGDJ, 2004,
xxvi+809p
− COVELL, C., The Law of Nations in Political Thought, A Critical Survey from Vitoria to
Hegel, Basingstoke, Palgrave MacMillan, vii+231p
− D’AMATO, A., The Concept of Custom in International Law, Ithaca, Cornell University
Press, 1971, xvi+286p
− DAHM, G., Völkerrecht, Stuttgart, Kohlhammer, 1958, 3 Vol.
− DAILLIER, P. and PELLET, A., Droit International Public, Paris, LGDJ, 2002, 1510p
− DANILENKO, G.M., Law-Making in the International Community, Dordrecht, Nijhoff,
1993, xvi+343p
− DAVID, E., Principes de droit des conflits armés, Brussels, Bruylant, 2008, 1117p.
− DE HOOGH, A.J.J., Obligations Erga Omnes and International Crimes: A Theoretical
Inquiry into the Implementation and Enforcement of the International Responsibility of
States, Nijmegen, s.n., 1995, xv+396p
− DE PREUX, J., Geneva Convention relative to the Treatment of Prisoners of War,
Commentary, Geneva, ICRC, 1960, xxxii+764p
− DE VATTEL, E., Le droit des gens ou principes de la loi à naturelle appliqués à la
conduite et aux affaires des nations et des souverains, Washington, Carnegie Institution,
1916, Vol. I, lix+541p
− E. DE VATTEL, The Law of Nations or the Principles of Natural Law Applied to the
Conduct and Affairs of Nations and Sovereigns, Washington, Carnegie Institution of
Washington, 1916, Vol. III, lix+398p
− DE VISSCHER, C., Théories et réalités en droit international public, Paris, Pedone, 1970,
450p
− DIACONU, I., Contribution à une étude sur les normes impératives en droit international,
Geneva, University of Geneva, 1971, 185p
− DUGARD, J., Recognition and the United Nations, Cambridge, Grotius, 1987, xiv+192p
− DUGUIT, L., Traité de droit constitutionnel, Vol. 1, Paris, de Boccard, 1921, xi+594p
− DUPUY, P.-M., Droit international public, Paris, Dalloz, 2006, xxvii+849p
− DUPUY, R.-J., La Communauté internationale entre mythe et histoire, Paris, Economica,
1986, 182p
− DUPUY, R.-J., L’humanité dans l’imaginaire des nations, Conférences et essais du
Collège de France, Paris, Julliard, 1991, 283p
− DUPUY, R.-J., Dialectiques du droit international, Souverainité des États, communauté
internationale et droits de l’humanité, Paris, Pedone, 1999, 371p
− DWORKIN, R., Taking Rights Seriously, Cambridge, Mass., Harvard University Press,
1978, xv+371p
− DWORKIN, R., Law’s Empire, London, Fontana, 1986, xiii+470p
− ELIAS, T.O., The Modern Law of Treaties, Dobbs Ferry, N.Y., Oceana, 1974, 272p
− EVANS, G., Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All,
Washington D.C., Brookings Institute, 2008, xvi+349p
− FARNSWORTH, E.A., Farnsworth on Contracts, Volume II, New York, Aspen Publishers,
2004, xxv+ 681p
− FLUME, W., Allgemeiner Teil des Bürgerliches Rechts, Springer, Berlin, 1992, x+987p
− FOX, H., The Law of State Immunity, Oxford, Oxford University Press, 2004, lxiv+572p
− FRANCK, T.M., The Power of Legitimacy among Nations, Oxford, Oxford University
Press, 1990, viii+303p

475
− FRANCK, T.M., Fairness in International Law and Institutions, Oxford, Clarendon, 1995,
xxxvi+500p
− FRIEDMANN, W., The Changing Structure of International Law, London, Steven & Sons,
1964, xvi+410p
− GREEN, L.C., The Contemporary Law of Armed Conflict, Manchester, Manchester
University Press, 2000, xx+393p
− GREWE, W.G., The Epochs of International Law, Berlin, De Gruyter, 2000, xxii+780p
− GROTIUS, H., De iure belli ac pacis libri tres, Aalen, Scientia, 1993, xvi+1074p
− GUGGENHEIM, P., Traité de droit international public, Vol. 1, Geneva, Librairie de
l’Université, 1967, xxxi+352p
− GÜNTHER, C.A., Die Klagebefugnis der Staaten in internationalen
Streitbeilegungsverfahren, Berlin, C.F. Heymanns, 1999, xiii+306p
− HABERMAS, J., The Inclusion of the Other, Studies in Political Theory, Cambridge, Mass.,
MIT Press, 1998, 334p
− HANNIKAINEN, L., Peremptory Norms (Jus Cogens) in International Law: Historical
Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus, 1988,
xxxii+781p
− HARASZTI, G., Some Fundamental Problems of the Law of Treaties, Budapest,
Akademiai Kiado, 1973, 438p
− HART, H.L.A., The Concept of Law, Oxford, Oxford University Press, 1997, xii+315p
− HENCKAERTS, J.-M. and DOSWALD-BECK, L., Customary International Humanitarian
Law, Volume I: Rules, Cambridge, Cambridge University Press, 2005, liii+621p
− L. HENKIN, International Law: Politics and Values, Dordrecht, Nijhoff, 1995, xiii+376p
− HOBBES, T., Leviathan, London, Penguin Classics, 1985, 729p
− JACQUE, J.-P., Éléments pour une théorie de l’acte juridique en droit international public,
Paris, LGDJ, 1972, iv+513p
− JENKS, C.W., The Prospects of International Adjudication, London, Stevens & Sons,
1964, xl+805p
− JENNINGS, R., and WATTS, A., Oppenheim’s International Law, Volume I, Peace,
Introduction and Part 1, London, Longman, 1992, lxxxvi+554p
− KADELBACH, S., Zwingendes Völkerrecht, Berlin, Duncker und Humblot, 1992, 383p
− KALSHOVEN, F. and ZEGVELD, L., Constraints on the Waging of War: An Introduction to
International Humanitarian Law, Geneva, ICRC, 2001, 223p
− KELSEN, H., General Theory of Law and State, Cambridge, Mass., Harvard University
Press, 1945, xxxiii+516p
− KELSEN, H., Principles of International Law, London, Holt, Rinehart and Winston, 1967,
xvii+602p
− KELSEN, H., Pure Theory of Law, Union, New Jersey, The Lawbook Exchange, 2002,
x+356p
− KOLB, R., Théorie du ius cogens international, Essai de relecture du concept, Paris,
Presses universitaires de France, 2001, 401p
− KOOIJMANS, P.H., The Doctrine of the Legal Equality of States, An Inquiry into the
Foundations of International Law, Leiden, Sythoff, 1964, viii+260p
− LAUTERPACHT, H., Private Law Sources and Analogies of International Law, with
Special Reference to International Arbitration, London, Longmans, 1927, xxiv+326p
− LAUTERPACHT, H., The Development of International Law by the International Court,
London, Stevens, 1958, xix+408p
− LEVIE, H.S., Prisoners of War in International Armed Conflict, Newport, U.S. Naval War
College, 1977, lxix+529p

476
− MACKIE, J.L., Inventing Right and Wrong, Harmondsworth, Penguin Books, 1977, 249p
− MALANCZUK, P., Akehurst’s Modern Introduction to International Law, London,
Routhledge, 1997, xxii+449p
− MCNAIR, A.D., The Law of Treaties, Oxford, Clarendon, 1961, xxii+789p
− MERON, T., Human Rights Law-making in the United Nations, Oxford, Clarendon, 1986,
xii+351p
− MERON, T., Human Rights in Internal Strife, Their International Protection, Cambridge,
Grotius Publications, 1987, xiii+172p
− MERTENS, T. and VAN ELDEN, E., Immanuel Kant, Naar de eeuwige vrede, een filosofisch
ontwerp, Amsterdam, Boom, 2004, 126p
− MORRIS, I., Why the West Rules – For Now, London, Profile Books, 2011, xiii+750p
− MOSLER, H., The International Society as a Legal Community, Alphen aan den Rijn,
Sijthoff, 1980, xix+329p
− NICOLOUDIS, E.P., La nullité de jus cogens et le développement contemporain du droit
international public, Athens, Papazissis, 1974, 253p
− NOWAK, M., UN Covenant on Civil and Political Rights: CCPR Commentary, Kehl am
Rein, Engel, 1993, xxviii+947p
− ORAKHELASHVILI, A., Peremptory Norms in International Law, Oxford, Oxford
University Press, 2006, xxxv+622p
− ORFORD, A, International Authority and the Responsibility to Protect, Cambridge,
Cambridge University Press, 2011, ix+235p
− PAL, D., State Sovereignty at the Cross Roads, Calcutta, S.C. Sarkar & Sons, 1962,
vii+234p
− PARRY, C., The Sources and Evidences of International Law, Manchester, Manchester
University Press, 1965, vii+122p
− PATON, H.J., The Moral Law, London, Hutchinson, 1948, 151p
− PAULUS, A., Die internationale Gemeinschaft im Völkerrecht, Munich, Beck, 2001,
xxii+495p
− PICTET, J.S., Geneva Convention for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, Commentary, Geneva, ICRC, 1952, xvi+466p
− PICTET, J.S., Geneva Convention for the Amelioration of the Condition of the Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea, Commentary, Geneva, ICRC,
1959, xi+320p
− PUFENDORF, S., De jure naturae et gentium libri octo¸ Volume I, Photographical
Reproduction, Oxford, Clarendon, 1934, lxvi+1002p
− RAGAZZI, M., The Concept of International Obligations Erga Omnes, Oxford, Clarendon,
1997, xl+264p
− RAWLS, J., The Law of Peoples, Cambridge, Mass., Harvard University Press, 2002, 199p
− RAZ, J., The Concept of a Legal System, Oxford, Clarendon, 1980, ix+245p
− REIMANN, H.B., Ius cogens im Völkerrecht, Zurich, Schulthess, 1971, x+136p
− REISS, H.S., Kant’s Political Writings, Cambridge, Cambridge University Press, 1991,
xv+309p
− REUTER, P., Introduction au droit des traités, Paris, Presses universitaires de France,
1995, xii+251p
− RIPERT, G., La règle morale dans les obligations civiles, Paris, LGDJ, 1949, vii+421p
− ROZAKIS, C.L., The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North-
Holland, 1976, xiv+206p

477
− ROUSSEAU, C., Droit international public, Tome I, Introduction et sources, Paris, Sirey,
1970, iv+464p
− SANDOZ, Y., SWINARSKI, C., and ZIMMERMAN, B. (eds.), Commentaire des Protocoles
additionnels du 8 juin 1977 aux Conventions de Genève du 12 août 1949, Geneva,
Nijhoff, 1986, xxxv+1647p
− SCELLE, G., Le Pacte des Nations et sa liaison avec la traité de paix, Paris, s.n., 1919,
x+459p
− SCELLE, G., Précis de droit des gens, Part I, Paris, Sirey, 1932, xvi+312p
− SCELLE, G., Droit international public, Paris, Éditions Domat-Montchrestien, 1944, 764p
− SCHABAS, W.A., Genocide in International Law, The Crime of Crimes, Cambridge,
Cambridge University Press, 2009, xviii+741p
− SCHACHTER, O., International Law in Theory and Practice, Dordrecht, Nijhoff, 1991,
viii+431p
− SEIDERMAN, I.D., Hierarchy in International Law, The Human Rights Dimension,
Antwerp, Intersentia, 2001, xiii+335p
− SHAHABUDDEEN, M., Precedent in the World Court, Cambridge, Cambridge University
Press, 1996, xx+245p
− SHAW, M.N., International Law, Cambridge, Cambridge University Press, 2003,
cxlv+1288p
− SINCLAIR, I.M., The Vienna Convention on the Law of Treaties, Manchester, Manchester
University Press, 1973, vii+150p
− SINCLAIR, I.M., The Vienna Convention on the Law of Treaties, Manchester, Manchester
University Press, 1984, x+270p
− SUAREZ, F., De legibus, II, Madrid, Consejo Superior de Investigaciones Cientificas,
Instituto Francisco de Vitoria, 1972, xiv+366p
− SUY, E., Les actes juridiques unilatéraux, Paris, LGDJ, 1962, xii+290p
− SCHWARZENBERGER, G., The Inductive Approach to International Law, London, Stevens
& Sons, 1965, xvi+209p
− SCHWARZENBERGER, G., International Law and Order, London, Stevens & Sons, 1971,
xxiii+298p
− SZTUCKI, J., Jus Cogens and the Vienna Convention on the Law of Treaties, A Critical
Appraisal, Vienna, Springer, 1974, xii+204p
− TAMMES, J., Internationaal Publiekrecht, Amsterdam, Bohn, 1973, vii+1474p
− TAMS, C.J., Enforcing Obligations Erga Omnes in International Law, Cambridge,
Cambridge University Press, 2006, xxxi+359p
− TERRE, F., SIMLER, P., and LEQUETTE, Y., Droit civil, Les obligations, Paris, Dalloz,
2005, vii+1474p
− TESÓN, F.R., A Philosophy of International Law, Boulder, Co., Westview Press, 1998,
viii+196p
− THIRLWAY, H.W.A., International Customary Law and Codification: An Examination of
the Continuing Role of Custom in the Present Period of Codification of International
Law, Leiden, Sijthoff, 1972, xii+158p
− TÖNNIES, F., Gemeinschaft und Gesellschaft, Darmstadt, wissenschaftliche
Buchgesellschaft, 1979, xlvii+224p
− TORRIONE, H., L’influence des conventions de codification sur la coutume en droit
international public, Fribourg, Éditions universitaires, 1989, xxiii+404p
− TRIEPEL, H., Völkerrecht und Landesrecht, Leipzig, Hirschfeld, 1899, xii+452p
− TUNKIN, G.I., Theory of International Law, London, George Allen & Unwin, 1974,
xxv+497p

478
− UHLER, O. and COURSIER, H., Geneva Convention relative to the Protection of Civilian
Persons in Time of War, Commentary, Geneva, ICRC, 1958, xviii+660p
− VAN HOOF, G.J.H., Rethinking the Sources of International Law, Deventer, Kluwer Law
and Taxation, 1983, xiv+322p
− VERDROSS, A., Die Verfassung der Völkerrechtsgemeinschaft, Berlin, Springer, 1926,
x+228p
− VERDROSS, A., Die Quellen des universellen Völkerrechts, Eine Einführung, Freiburg,
Rombach, 1973, 148p
− VERHOEVEN, J., Droit international public, Brussels, Larcier, 2000, 856p
− VERZIJL, J.H.W., International Law in a Historical Perspective, Part I: General Subjects,
Leiden, Sijthoff, 1968, xii+575p
− VILLIGER, M.E., Customary International Law and Treaties, Dordrecht, Nijhoff, 1985,
xxxii+432p
− VILLIGER, M.E., Commentary on the 1969 Vienna Convention on the Law of Treaties,
Leiden, Nijhoff, 2009, xxxiv+1057p
− VON DER HEYDTE, F.A., Völkerrecht, Vol. I, Cologne, Verlag für Politik und Wirtschaft,
1958, 369p
− VON LISZT, F.,and FLEISCHMANN, M., Das Völkerrecht systematisch dargestellt, Berlin,
Springer, 1925, xviii+764p
− WOLFF, C., Jus gentium methodo scientifica pertractum, Volume II, Translation, Oxford,
Clarendon, 1934, lii+565p
− WEISSBRODT, D., and ANTI-SLAVERY INTERNATIONAL, Abolishing Slavery and Its
Contemporary Forms, New York, Office of the United Nations High Commissioner on
Human Rights, 2002, iv+55p
− WOLFKE, K., Custom in Present International Law, Dordrecht, Nijhoff, 1993, xxi+192p
− ZWEIGERT, K. and KÖTZ, H., An Introduction to Comparative Law, Oxford, Oxford
University Press, 1998, xxvi+714p

II. Articles and contributions

− ABI-SAAB, G., “The Development of International Law by the United Nations”, Revue
Égyptienne de Droit International 1968, 94
− ABI-SAAB, G., “Cours général de droit international public”, Recueil des Cours 1987-VII,
9
− ABI-SAAB, G., “‘Humanité’ et ‘Communauté internationale’ dans l’évolution de la
doctrine et de la pratique du droit international”, in AGO, R. et al. (eds.), Humanité et
droit international, Mélanges René-Jean Dupuy, Paris, Éditions Pedone, 1991, 1
− ABI SAAB, G., “Whither the International Community”, European Journal of
International Law 1998, 248-265
− ABI-SAAB, G., “Fragmentation or Unification. Some Concluding Remarks”, New York
University Journal of International Law and Politics 1998-1999, 919
− AGO, R., “Positive Law and International Law”, American Journal of International Law
1957, 691
− AGO, R., “Droit des traités et Convention de Vienne”, Recueil des Cours 1971-III, 297
− AGO, R., “Communauté internationale et organisation internationale”, in DUPUY, R.-J.
(ed.), A Handbook on International Organizations, Dordrecht, Nijhoff, 1988, 3
− AGO, R., “Obligations Erga Omnes and the International Community”, in WEILER,
J.H.H., CASSESE, A. and SPINEDI, M. (eds.), International Crimes of States, A Critical

479
 Analysis of the ILC’s Draft Article 19 of State Responsibility, Berlin, de Gruyter, 1989,
237
− AKEHURST, M., “Custom as a Source of International Law”, British Yearbook of
International Law 1974-1975, 1
− AKEHURST, M., “The Hierarchy of Sources of International Law”, British Yearbook of
International Law 1974-1975, 273
− ALEXIDZE, L.A., “Legal Nature of Jus Cogens in Contemporary International Law”,
Receuil des Cours 1981-III, 219
− ALLAIN, J., “The Jus Cogens Nature of Non-refoulement”, International Journal of
Refugee Law 2001, 533
− ALLAIN, J., “R v Tang, Clarifying the Definition of ‘Slavery’ in International Law”,
Melbourne Journal of International Law 2009, 246
− ALLAND, D., “Countermeasures of General Interest”, European Journal of International
Law 2002, 1221
− ALLOT, P., “The Concept of International Law”, European Journal of International Law
1999, 31
− ALSTON, P. and SIMMA, B., “The Sources of Human Rights Law: Custom, Jus Cogens,
General Principles”, Australian Yearbook of International Law 1992, 82
− ALVAREZ, J.E., “Do Liberal States Behave Better? A Critique of Slaughter’s Liberal
Theory”, European Journal of International Law 2001, 183
− ANAND, R.P., “Sovereign Equality of States in International Law”, Recueil des Cours
1986-II, 9
− ANNACKER, C., “The Legal Régime of Erga Omnes Obligations under International
Law”, Austrian Journal of Public International Law 1994, 131
− ARAI-TAKAHASHI, Y., “Fair Trial Guarantees in Occupied Territory – The Interplay
between International Humanitarian Law and Human Rights Law”, in R. ARNOLD and N.
QUÉNIVET (eds.), International Humanitarian Law and Human Rights Law, Towards a
New Merger in International Law, Leiden, Nijhoff, 2008, 449
− ARANGIO-RUIZ, G., “The Normative Role of the General Assembly of the United Nations
and the Declaration of Principles of Friendly Relations”, Recueil des Cours 1972-III, 417
− AUST, H.P. and NASKE, N., “Rechtsschutz gegen den UN-Sicherheitsrat durch
europäische Gerichte? Die Rechtsprechung des EuG zur Umsetzung ‘gezielter
Sanktionen’ aus dem Blickwinkel des Völkerrechts”, Zeitschrift für öffentliches Recht
2006, 587
− BAKER, P.J., “The Doctrine of Legal Equality of States”, British Yearbook of
International Law 1923-1924, 1
− BANTEKAS, I., “Prefecture of Voiotia v. the Federal Republic of Germany, Case No.
137/1997, Court of First Instance of Leivadia, October 30, 1997”, American Journal of
International Law 1998, 765
− BARBERIS, J.A., “La liberté de traiter des Etats et le jus cogens”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1970, 19
− BARBERIS, J.A., “Réflexions sur la coutume internationale”, Annuaire Français de Droit
International 1990, 9
− BARILE, G., “La structure de l’ordre juridique international: règles générales et règles
conventionnelles” Recueil des Cours 1978-III, 9
− BARILE, G., “The Protection of Human Rights in Article 60, Paragraph 5 of the Vienna
Convention on the Law of Treaties”, in ZANARDI, P.I. et al. (eds.)., International Law at
the Time of Its Codification, Essays in Honour of Roberto Ago, Vol. II, Milan, Giuffrè,
1987, 3

480
− BARTOS, M., “Transformation des principes généraux en règles positives du droit
international”, in IBLER, V. (ed.), Mélanges offerts à Jury Andrassy, The Hague, Nijhoff,
1968, 1
− BASDEVANT, J., “Règles générales de droit de la paix”, Recueil des Cours 1936-IV, 471
− BAXTER, R.R., “Treaties and Custom”, Recueil des Cours 1970-I, 27
− BEAUD, O., “Constitution et constitutionalisme”, in RAYNAUD, P. and RIALS, S., (eds.),
Dictionnaire de philosophie politique, Paris, Presses universitaires de France, 2003, 133
− BECKETT, J.A., “Behind Relative Normativity: Rules and Processes as Prerequisites of
Law”, European Journal of International Law 2001, 627
− BECKETT, W.E., “Les questions d’intérêt general au point de vue de juridique dans la
jurisprudence de la Cour permanente de Justice internationale”, Recueil des Cours 1932-
I, 131
− BEDJAOUI, M. and LEIDGENS, T., “Article 44 – Convention de 1969”, in CORTEN, O. and
KLEIN, P. (eds.), Les conventions de Vienne sur le droit des traités, Commentaire article
par article, Brussels, Bruylant, 2006, 1641
− BEHNKE, A., “‘Eternal Peace’ as the Graveyard of the Political: A Critique of Kant’s Zum
Ewigen Frieden”, Millennium – Journal of International Studies 2008, 513
− BELSKY, A.C., MERVA, M. and ROTH-ARRIANZA, N., “Implied Waiver under the FSIA: A
Proposed Exception to Immunity for Violations of Peremptory Norms of International
Law”, California Law Review 1989, 365
− BIANCHI, A., “Ferrini v. Federal Republic of Germany”, American Journal of
International Law 2005, 242
− BIANCHI, A., “Human Rights and the Magic of Jus Cogens”, European Journal of
International Law 2008, 491
− BIANCHI, A., “International Law, Counterterrorism and the Quest for Checks and
Balances: Why the Calling Sirens of Constitutionalism Should Be Resisted”, in BIANCHI,
A. and KELLER, A. (eds.), Counterterrorism: Democracy’s Challenge, Oxford, Hart,
2008, 395
− BINDSCHEDLER, R.L., “Betrachtungen über die Souveränität”, in INSTITUT UNIVERSITAIRE
DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en
hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 167
− BIRD, A., “Third State Responsibility for Human Rights Violations”, European Journal
of International Law 2010, 883
− BLIX, H., “Contemporary Aspects of Recognition”, Recueil des Cours 1970-II, 586
− BLONDEL, A., “Les principes généraux de droit devant la Cour permanente de Justice
internationale et la Cour internationale de Justice”, in INSTITUT UNIVERSITAIRE DE
HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit international en
hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 201
− BODANSKY, D., “Customary (and not so Customary) International Law”, Indiana Journal
of Global Legal Studies 1995-1996, 105
− BODANSKY, D., “Is There an International Environmental Constitution?”, Indiana
Journal of Global Legal Studies 2009, 565
− BOISSON DE CHAZOURNES, L. and CONDORELLI, L., “De la ‘responsabilité de protéger’ ou
d’une nouvelle parure pour une notion déjà bien établie”, Revue Générale de Droit
International Public 2006, 11
− BORE EVENO, V., “Le contrôle juridictionnel des résolutions du Conseil de Sécurité”,
Revue Générale de Droit International Public 2006, 827
− BOS, M., “The Recognized Manifestations of International Law”, German Yearbook of
International Law 1977, 9

481
− BOS, M., “The Identification of Custom in International Law”, German Yearbook of
International Law 1982, 9
− BOURQUIN, M., “Règles générales du droit de la paix”, Recueil des Cours 1931-I, 1
− BRADLEY, C.A. and GOLDSMITH, J.L., “Customary International Law As Federal
Common Law: A Critique of the Modern Position”, Harvard law Review 1997, 815
− BRADLEY, C.A. and GOLDSMITH, J.L., “The Current Illegitimacy of International Human
Rights Litigation”, Fordham Law Review 1997, 319
− BRIGGS, H.W., “Procedure for Establishing the Invalidity or Termination of Treaties
under the International Law Commission’s 1966 Draft Articles on the Law of Treaties”,
American Journal of International Law 1967, 976
− BROWNLIE, I., “Problems concerning the Unity of International Law”, in P.I. ZANARDI et
al. (eds.), Le droit international à l’heure de sa codification, Études en l’honneur de
Roberto Ago, Vol. I, Milan, Giuffrè, 1987, 153
− BROWNLIE, I., “The Rights of Peoples in Modern International Law”, in J. CRAWFORD
(ed.), The Rights of Peoples, Oxford, Clarendon, 1988, 1
− BRUNNÉE, J., “‘Common Interest’ – Echoes from an Empty Shell? Some Thoughts on
Common Interest and International Environmental Law”, Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht 1989, 791
− BRUNNÉE, J. and TOOPE, S., “Norms, Institutions and UN Reform: the Responsibility to
Protect”, Journal of International Law and International Relations 2005-2006, 121
− BRYDE, B.-O., “Verpflichtungen Erga Omnes aus Menschenrechten”, Berichte der
Deutschen Gesellschaft für Völkerrecht 1994, 165
− BRYDE, B.-O., “International Democratic Constitutionalism”, in MACDONALD, R.St.J.
and JOHNSON, D.M. (eds.), Towards World Constitutionalism, Issues in the Legal
Ordering of the World Community, Leiden, Nijhoff, 2005, 103
− BULL, H., “Hobbes and the International Anarchy”, Social Research 1981, 717
− BURCHILL, R., “The ICJ Decision in the Case concerning East Timor: The Illegal Use of
Force Validated?”, Journal of Armed Conflict Law 1997, 1
− BURKE-WHITE, W.W., “International Legal Pluralism”, Michigan Journal of
International Law 2003-2004, 965
− BUZZINI, G.P., “La ‘généralité’ du droit international public”, Revue Générale de Droit
International Public 2004, 281
− BYERS, M., “Custom, Power and the Power of Rules”, Michigan Journal of International
Law 1995-1996, 109
− BYERS, M., “Conceptualizing the Relationship between Jus Cogens and Erga Omnes
Rules”, Nordic Journal of International Law 1997, 211
− BYERS, M., “Introduction: Power, Obligation, and Customary International Law”, Duke
Journal of Comparative and International Law 2001, 81
− CAHIER, P., “Changement et continuité du droit international, Cours général de droit
international public”, Recueil des Cours 1985-VI, 9
− CANNIZZARO, E., “A Higher Law of Treaties?”, in CANNIZZARO, E. (ed.), The Law of
Treaties beyond the Vienna Convention, Oxford, Oxford University Press, 2011, 425
− CAPLAN, L.M., “State Immunity, Human Rights, and Jus Cogens: A Critique of the
Normative Hierarchy Theory”, American Journal of International Law 2003, 741
− CAPOTORTI, F., “L’extinction et la suspension des traits”, Recueil des Cours 1971-III, 417
− CAPPS, P., “The Kantian Project in Modern International Legal Theory”, European
Journal of International Law 2001, 1003
− CARILLO-SALCEDO, J.-A., “Droit international et souveraineté des états: Cours général de
droit international public”, 257 Recueil des Cours 1996, 35

482
− CARRILLO SALCEDO, J.A., “Reflections on the Hierarchy of Norms in International Law”,
European Journal of International Law 1997, 583
− CASS, D.Z., “The ‘Constitutionalization’ of International Trade Law: Judicial Norm-
Generation as the Engine of Constitutional Development in International Trade”,
European Journal of International Law 2001, 39
− CASSESE, A., “Weapons causing Unnecessary Suffering: Are They Prohibited?”, Rivista
di Diritto Internazionale 1975, 12
− CASSESE, A., “Ex iniuria ius oritur: Are We Moving towards Legitimation of Forcible
Humanitarian Countermeasures in the World Community?”, European Journal of
International Law 1999, 23
− CASTBERG, F., “La Méthodologie du droit international public”, Recueil des Cours 1933-
I, 309
− CAVAGLIERI, A., “Règles générales du droit de la paix”, Recueil des Cours 1929-I, 311
− CAVALLAR, G., “Kantian Perspectives on Democratic Peace: Alternatives to Doyle”,
Review of International Studies 2001, 229
− CHARLESWORTH, H. and CHINKIN, C., “The Gender of Jus Cogens”, Human Rights
Quarterly 1993, 63
− CHARNEY, J.I., “The Persistent Objector Rule”, British Yearbook of International Law
1985, 1
− CHARNEY, J.I., “Universal International Law”, American Journal of International Law
1993, 529
− CHARNEY, J.I., “Is International Law Threatened by Multiple International Tribunals”,
271 Recueil des Cours 1998, 101
− CHARNEY, J.I., “The Impact on the International Legal System of the Growth of
International Courts and Tribunals”, New York University Journal of International law
and Politics 1998-1999, 697
− CHARPENTIER, J., “Cour Internationale de Justice: Affaire de la Barcelona Traction, Arrêt
du 5 février 1970”, Annuaire Français de Droit International 1970, 256
− CHENG, B., “The Meaning and Scope of Article 38 (1) (c) of the Statute of the
International Court of Justice”, Transactions of the Grotius Society 1952, 125
− CHENG, B., “United Nations Resolutions on Outer Space: Instant International Customary
Law?”, Indian Journal of International Law 1965, 23
− CHENG, B., “Custom: The Future of General State Practice in a Divided World”, in
MACDONALD, R.ST.J. and JOHNSTON, D.M. (eds.), The Structure and Process of
International Law, Dordrecht, Nijhoff, 1986, 512
− CHENWI, L., “Fair Trial Rights and Their Relation to the Death Penalty in Africa”,
International & Comparative Law Quarterly 2006, 609
− CHERIF BASSIOUNI, M., “A Functional Approach to ‘General Principles of International
Law’”, Michigan Journal of International Law 1989-1990, 768
− CHERIF BASSIOUNI, M., “Enslavement as an International Crime”, New York University
Journal of International Law and Policy 1990-1991, 445
− CHERIF BASSIOUNI, M., “International Crimes: Jus Cogens and Obligatio Erga Omnes”,
Law and Contemporary Problems 1996, 63
− CHEVALIER-WATTS, J., “Has Human Rights Law Become Lex Specialis for the European
Court on Human Rights in Right to Life Cases arising From Internal Armed Conflicts?”,
International Journal of Human Rights 2010, 584
− CHINEN, M.A., “Game Theory and Customary International Law: A Response to
Professors Goldsmith and Posner”, Michigan Journal of International Law 2001-2002,
143

483
− CHINKIN, C.M., “East Timor Moves Before the World Court”, European Journal of
International Law 1993, 206
− CHINKIN, C., “The East Timor Case (Portugal v. Australia)”, International and
Comparative Law Quarterly 1996, 712
− CHLOPAK, E., “Dealing with the Detainees at Guantanamo Bay: Humanitarian and
Human Rights Obligations under the Geneva Conventions”, Human Rights Brief 2002, 6
− CHRISTENSON, G., “Jus Cogens: Guarding Interests Fundamental to the International
Society”, Virginia Journal of International Law 1987-1988, 585
− CHRISTIE, G.C., “The Model of Principles”, Duke Law Journal 1968, 649
− CIAMPI, A., “Invalidity and Termination of Treaties and Rules of Procedure”, in
CANNIZZARO, E. (ed.), The Law of Treaties beyond the Vienna Convention, Oxford,
Oxford University Press, 2011, 360
− COFFMAN, P.D., “Obligations Erga Omnes and the Absent Third State”, German
Yearbook of International Law 1996, 285
− COLARD, D., “Premières réflexions sur le ‘Traité des Traités’: La Convention de Vienne
du 23 mai 1969”, Journal de Droit International 1970, 264
− COLEMAN, J.L., “Negative and Positive Positivism”, Journal of Legal Studies 1982, 139
− COLEMAN, J.L., “Authority and Reason”, in GEORGE, R.P. (ed.), The Authority of Law:
Essays on Legal Positivism, Oxford, Clarendon, 1996, 287
− COLLINS, R., “Constitutionalism as Liberal-Juridical Consciousness: Echoes from
International Law’s Past”, Leiden Journal of International Law 2009, 251
− COLSON, D.A., “How Persistent must the Persistent Objector be? “, Washington Law
Review 1986, 957
− CONFORTI, B., “Cours général de droit international public”, Recueil des Cours 1988-V, 9
− CONFORTI, B., “Unité et fragmentation du droit international: ‘Glissez, mortels,
n’appuyez pas!’”, Revue Générale de Droit International Public 2007, 5
− COSNARD, M., “Sovereign Equality – The Wimbledon sails on”, in BYERS, M. and
NOLTE, G. (eds.), United States Hegemony and the Foundations of International Law,
Cambridge, Cambridge University Press, 2003, 117
− COSNARD, M., “Article 65 – Convention de 1969”, in CORTEN, O. and KLEIN, P. (eds.),
Les conventions de Vienne sur le droit des traités, Commentaire article par article,
Brussels, Bruylant, 2006, 2347
− COTTIER, T. and HERTIG, M., “The Prospects of 21st Century Constitutionalism”, Max
Planck Yearbook of United Nations Law 2003, 261
− CRAVEN, M., “Legal Differentiation and the Concept of the Human Rights Treaty in
International Law”, European Journal of International Law 2000, 489
− CRAVEN, M., “Unity, Diversity and the Fragmentation of International Law”, Finnish
Yearbook of International Law 2003, 3
− CRAWFORD, J., “The Criteria for Statehood in International Law”, British Yearbook of
International Law 1976-1977, 93
− CRAWFORD, J.R., “The Standing of States: A Critique of Art. 40 of the ILC’s Draft
Articles on State Responsibility”, in ADENAS, M. and FAIRGRIEVE, D. (eds.), Judicial
Review in International Perspective, Liber Amicorum in Honour of Lord Slynn of Hadley,
Vol. II, The Hague, Kluwer Law International, 2000, 23
− CRAWFORD, J., PEEL, J. and OLLESON, S., “The ILC’s Articles on Responsibility of States
for Internationally Wrongful Acts: Completion of the Second Reading”, European
Journal of International Law 2001, 963

484
− CRAWFORD, J., “International Crimes of States”, in CRAWFORD, J., PELLET, A. and
OLLESON, S. (eds.), The Law of International Responsibility, Oxford, Oxford University
Press, 2010, 405
− CRAWSHAW, R., “International Standards on the Right to Life and the Use of Force by
Police”, International Journal of Human Rights 1999, 67
− CREPEAU, F. and COTE, R., “Article 71 – Convention de 1969”, in CORTEN, O. and
KLEIN, P. (eds.), Les conventions de Vienne sur le droit des traités, Commentaire article
par article, Brussels, Bruylant, 2006, 2545
− CHRISTAKIS, T., “L’obligation de non-reconnaissance des situations créées par le recours
illicite à la force ou d’autres actes enfreignant des règles fondamentales”, in TOMUSCHAT,
C. and THOUVENIN, J.-M. (eds.), The Fundamental Rules of the International Legal
Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 127
− CZAPLIŃSKI, W., “Ius Cogens and the Law of Treaties”, in TOMUSCHAT, C. and
THOUVENIN, J.-M. (eds.), The Fundamental Rules of the International Legal Order, Jus
Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 83
− CZAPLIŃSKI, W. and DANILENKO, G.M., “Conflicts of Norms in International Law”,
Netherlands Yearbook of International Law 1990, 3
− D’AMATO, A., “It’s a Bird, It’s a Plane, It’s Jus Cogens!”, Connecticut Journal of
International Law 1990-1991, 1
− D’ARGENT, P., “Des règlement collectifs au règlement individuels (collectivisés)”,
International Law FORUM du Droit International 2003, 10
− DANILENKO, G.M., “The Theory of Customary International Law”, German Yearbook of
International Law 1988, 9
− DANILENKO, G.M., “The Changing Structure of the International Community”, Harvard
International Law Journal 1991, 353
− DANILENKO, G.M., “International Jus Cogens: Issues of Law-Making”, European
Journal of International Law 1991, 42
− DAWIDOWICZ, M., “Non-recognition of an Unlawful Situation”, in CRAWFORD, J.,
PELLET, A. and OLLESON, S. (eds.), The Law of International Responsibility, Oxford,
Oxford University Press, 2010, 677
− DE HOOGH, A.J.J., “The Relationship between Jus Cogens, Obligations Erga Omnes and
International Crimes”, Austrian Journal of Public and International Law 1991, 183
− DE LONDRAS, F., “The Religiosity of Jus Cogens: A Moral Case for Compliance?”, in
REHMAN, J. and BREAU, S.C. (eds.), Religion, Human Rights and International Law: A
Critical Examination of Islamic State Practices, Leiden, Nijhoff, 2007, 247
− DEMLEITER, N.V., “Forced Prostitution: Naming an International Offense”, Fordham
International Law Journal 1994-1995, 163
− DENNIS, M.J., “Application of Human Rights Treaties Extraterritorially in Times of
Armed Conflict and Military Occupation”, American Journal of International Law 2005,
119
− DE VISSCHER, C., “Cours général de principes de droit international public”, Recueil des
Cours 1954-II, 445
− DE VISSCHER, C., “Positivisme et ‘jus cogens’”, Revue Général de Droit International
Public 1971, 5
− DE VISSCHER, P., “Cours general de droit international public”, Recueil des Cours 1972-
II, 1
− DE WET, E., “The Prohibition of Torture as an International Norm of Jus Cogens and Its
Implications for National and Customary Law”, European Journal of International Law
2004, 97

485
− DE WET, E., “The International Constitutional Order”, International and Comparative
Law Quarterly 2006, 51
− DE WET, E., “The Emergence of International and Regional Value Systems as a
Manifestation of the Emerging International Constitutional Order”, Leiden Journal of
International Law 2006, 611
− DEWEY, J., “Logical Method and Law”, Cornell Law Quarterly 1924, 17
− DE WITTE, B., “Rules of Change in International Law: How Special is the European
Community?”, Netherlands Yearbook of International Law 1994, 299
− DISTEFANO, G., “Article 51 – Convention de 1969”, in CORTEN, O. and KLEIN, P. (eds.),
Les conventions de Vienne sur le droit des traités, Commentaire article par article,
Brussels, Bruylant, 2006, 1835
− DOMINICE, C., “The International Responsibility of States for Breach of Multilateral
Obligations”, European Journal of International Law 1999, 353
− DUBOIS, D., “The Authority of Peremptory Norms in International Law: State Consent or
Natural Law”, Nordic Journal of International Law 2009, 133
− DUPUY, P.-M., “Observations sur la pratique récente des sanctions de l’illicite”, Revue
Générale de Droit Interntional Public 1983, 505
− DUPUY, P.-M., “Humanité, communauté et efficacité de droit”, in AGO, R. et al. (eds.),
Humanité et droit international, Mélanges René-Jean Dupuy, Paris, Pedone, 1991, 133
− DUPUY, P.-M., “The Constitutional Dimension of the Charter of the United Nations
Revisited”, Max Planck Yearbook of United Nations Law 1997, 1
− DUPUY, P.-M., “The Danger of Fragmentation or Unification of the International Legal
System and the International Court of Justice”, New York University Journal of
International Law and Policy 1998-1999, 791
− DUPUY, P.-M., “A General Stocktaking of the Connections between the Multilateral
Dimension of Obligations and Codification of the Law of State Responsibility”,
European Journal of International Law 2002, 1053
− DUPUY, P.-M.; “L’unité de l’ordre juridique international”, 297 Recueil des Cours 2002,
9
− DUPUY, R.-J., “Codification et règlement des différends. Les débats de Vienne sur les
procédures de règlement”, Annuaire Français de Droit International 1969, 70
− DUPUY, R.-J., “Coutume sage et coutume sauvage”, in BASTID, S. (ed.), Mélanges offerts
à Charles Rousseau: la communauté internationale, Paris, Pedone, 1974, 75
− DUPUY, R.-J., “Communauté internationale et disparités de développement”, Recueil des
Cours 1979-IV, 9
− DUPUY, R.-J., “Les ambiguités de l’universalisme”, in X (ed.), Le droit international au
service de la paix, de la justice et du développement, Mélanges Michel Virally, Paris,
Pedone, 1991, 273
− EATON, J., “An Emerging Norm? Determining the Meaning and Legal Status of the
Responsibility to Protect”, Michigan Journal of International Law 2010-2011, 765
− ELIAS, O., “The Nature of the Subjective Element in Customary International Law”,
International and Comparative Law Quarterly 1995, 501
− ELIAS, O. and LIM, C., “‘General Principles of Law’, ‘Soft Law and the identification of
International Law’”, Netherlands Yearbook of International Law 1997, 3
− ELIAS, T.O., “Problems concerning the Validity of Treaties”, Recueil des Cours 1971-III,
333
− EVANS, G., “From Humanitarian Intervention to the Responsibility to Protect”, Wisconsin
International Law Journal 2006-2007, 703

486
− FALK, R.A., “To What Extent are International Law and International Lawyers
Ideologically Neutral?”, in CASSESE, A. and WEILER, J.H.H. (eds.), Change and Stability
in International Law-Making, Berlin, de Gruyter, 1988, 137
− FASSBENDER, B., “The United Nations Charter as Constitution of the International
Community”, Columbia Journal of Transnational Law 1998, 529
− FASSBENDER, B. and BLECKMANN, A., “Article 2(1)”, in SIMMA, B., MOSLER, H. and
PAULUS, A.L. (eds.), The Charter of the United Nations: A Commentary, Vol. I, Oxford,
Oxford University Press, 2002, 68
− FASSBENDER, B., “Sovereignty and Constitutionalism in International Law”, in WALKER,
N. (ed.), Sovereignty in Transition, Oxford, Hart, 2003, 115
− FASSBENDER, B., “The Meaning of International Constitutional Law”, in MACDONALD,
R.St.J. and JOHNSON, D.M. (eds.), Towards World Constitutionalism, Issues in the Legal
Ordering of the World Community, Leiden, Nijhoff, 2005, 837
− FASTENRATH, U., “Relative Normativity in International Law”, European Journal of
International Law 1993, 305
− FAVRE, A., “Les principes généraux de droit, fond commun du droit des gens”, in
INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études
de droit international en hommage à Paul Guggenheim, Geneva, Imprimerie de la
Tribune, 1968, 366
− FERRARI BRAVO, L., “Méthodes de recherche de la coutume internationale dans la
pratique des Etats”, Recueil des Cours 1985-III, 233
− FIDLER, D., “Challenging the Classical Concept of Custom”, German Yearbook of
International Law 1996, 198
− FISCH, J., “When Will Kant’s Perpetual Peace be Definitive?”, Journal of the History of
International Law 2000, 125
− FISCHER-LESCANO, A., “Globalverfassung, Verfassung der Weltgesellschaft”, Archiv für
Rechts- und Socialphilosophie 2002, 349
− FISCHER-LESCANO, A., “Die Emergenz der Globalverfassung”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 2003, 717
− FISCHER-LESCANO, A. and TEUBNER, G., “Regime Collisions: The Vain Search for Legal
Unity in the Fragmentation of Global Law”, Michigan Journal of International Law
2003-2004, 999
− FISS, O.M., “The Variety of Positivism”, Yale Law Journal 1980-1981, 1007
− FITZMAURICE, G.G., “Reservations to Multilateral Conventions”, International and
Comparative Law Quarterly 1953, 1
− FITZMAURICE, G.G., “The General Principles of International Law Considered from the
Standpoint of the Rule of Law”, Recueil des Cours 1957-II, 1
− FITZMAURICE, G.G., “The Formal Sources of International Law”, in BARON VAN ASBECK,
F.M., DONNER, J., et al. (eds.), Symbolae Verzijl, The Hague, Nijhoff, 1958, 153
− FOCARELLI, C., “Promotional Jus Cogens: A Critical Appraisal of Jus Cogens’ Legal
Effects”, Nordic Journal of International Law 2008, 429
− C. FOCARELLI, “The Responsibility to Protect Doctrine and Humanitarian Intervention:
Too Many Ambiguities for a Working Doctrine”, Journal of Conflict and Security Law
2008, 191
− FOCARELLI, C., “Immunité des Etats 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
jurisdictionelle des Etats étrangers”, Revue Générale de Droit International Public 2008,
761

487
− FOCARELLI, C., “Federal Republic of Germany v. Giovanni Mantelli and Others: Italian
Court of Cassation Opinion on Foreign Sovereign Immunity in Cases of Civil Liability
for International Crimes”, American Journal of International Law 2009, 122
− FOIS, P., “La funzione degli accordi de codificazione”, in ZANARDI, P.I. et al. (eds.), Le
droit international à l’heure de sa codification, Études en l’honneur de Roberto Ago, Vol.
I, Milan, Giuffrè, 1987, 287
− FORD, C.A., “Adjudicating Jus Cogens”, Wisconsin International Law Journal 1994-
1995, 145
− FORLATI, S., “Coercion as a Ground Affecting the Validity of Peace Treaties”, in
CANNIZZARO, E. (ed.), The Law of Treaties beyond the Vienna Convention, Oxford,
Oxford University Press, 2011, 320
− FORREST MARTIN, F., “Delineating a Hierarchical Outline of International Law Sources
and Norms”, Saskatchewan Law Review 2002, 333
− FOX, H., “State Immunity and the International Crime of Torture”, European Human
Rights Law Review 2006, 142
− FRANCESCHET, A., “Sovereignty and Freedom: Immanuel Kant’s Liberal International
‘Legacy’”, Review of International Studies 2001, 209
− FRANCESCHET, A., “ ‘One Powerful and Enlightened Nation’: Kant and the Quest for a
Global Rule of Law”, in JAHN, B. (ed.), Classical Theory in International Relations,
Cambridge, Cambridge University Press, 2006, 74
− FRANCK, T.M., “Legitimacy in the International System”, American Journal of
International Law 1988, 705
− FRANCK, T.M., “The Emerging Right of Democratic Governance”, American Journal of
International Law 1992, 46
− FROWEIN, J.A., “Collective Enforcement of International Obligations”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1987, 67
− FROWEIN, J.A., “Reactions by Not Directly Affected States to Breaches of Public
International Law”, Recueil des Cours 1994-IV, 345
− GAETA, P., “On What Conditions Can a State Be Held Responsible for Genocide”,
European Journal of International Law 2007, 631
− GAJA, G., “Jus Cogens beyond the Vienna Convention”, Recueil des Cours 1981-III, 271
− GAJA, G., “Obligations Erga Omnes, International Crimes and Jus Cogens, A Tentative
Analysis of Three Related Concepts”, in WEILER, J.H.H., CASSESE, A. and SPINEDI, M.
(eds.), International Crimes of States, A Critical Analysis of the ILC’s Draft Article 19 of
State Responsibility, Berlin, De Gruyter, 1989, 151
− GAJA, G., “States Having an Interest in Compliance”, in CRAWFORD, J., PELLET, A. and
OLLESON, S. (eds.), The Law of International Responsibility, Oxford, Oxford University
Press, 2010, 957
− GARDBAUM, S., “Human Rights as International Constitutional Rights”, European
Journal of International Law 2008, 749
− GARDBAUM, S., “Human Rights and International Constitutionalism”, 2009, at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088039
− GARDNER, J., “Legal Positivism: 5 ½ Myths”, American Journal of Jurisprudence 2001,
199
− GATTINI, A., “A Return Ticket to ‘Communitarisme’, Please”, European Journal of
International Law 2002, 1181
− GATTINI, A., “To What Extent are State Immunity and Non-Justiciability Major Hurdles
to Individuals’ Claims for War Damages”, Journal of International Criminal Justice
2003, 348

488
− GATTINI, A., “War Crimes and State Immunity in the Ferrini Decision”, Journal of
International Criminal Justice 2005, 224
− GAVOUNELI, M. and BANTEKAS, I., “Prefecture of Voiotia v. the Federal Republic of
Germany, Case No. 11/2000, Areios Pagos, May 4, 2000”, American Journal of
International Law 2001, 198
− GAZZINI, T., “NATO Coercive Military Activities in the Yugoslav Crisis (1992-1999)”,
European Journal of International Law 2001, 391
− GERGEN, J.A., “Human Rights and the Foreign Sovereign Immunities Act”, Virginia
Journal of International Law 1995-1996, 765
− GIANELLI, A., “Absolute Invalidity of Treaties and Their Non-Recognition by Third
States”, in CANNIZZARO, E. (ed.), The Law of Treaties beyond the Vienna Convention,
Oxford, Oxford University Press, 2011, 333
− GIEGERICH, T., “The Is and the Ought of International Constitutionalism: How Far Have
We Come on Habermas’s Road to a ‘Well-Considered Constitutionalization of
International Law’?”, German Law Journal 2009, 31
− GLENNON, M.J., “De l’absurdité du droit impératif (jus cogens)”, Revue Générale de
Droit International Public 2006, 529
− GOLDSMITH, J.L. and POSNER, E.A., “A Theory of Customary International Law”,
University of Chicago Law Review 1999, 1113
− GOLDSMITH, J.L. and POSNER, E.A., “Understanding the Resemblance between Modern
and Traditional Customary International Law”, Virginia Journal of International Law
2000, 639
− GOLDSMITH, J.L. and POSNER, E.A., “Further Thoughts on Customary International
Law”, Michigan Journal of International Law 2001-2002, 191
− GOMEZ ROBLEDO, A., “Le jus cogens international: Sa genèse, sa nature, ses fonctions”,
Recueil des Cours 1981-III, 9
− GRAY, C., “Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Admissibility and
Jurisdiction”, International and Comparative Law Quarterly 2005, 688
− GREEN, J.A., “Questioning the Peremptory Status of the Prohibition of the Use of Force”,
Michigan Journal of International Law 2010-2011, 215
− GREIG, D.W., “Reciprocity, Proportionality and the Law of Treaties”, Virginia Journal of
International Law 1994, 295
− GROSSE, L., “Racines historiques et fondements contemporains des normes impératives
(Jus cogens) dans la théorie et la pratique du droit international”, Revue de Droit
International, de Sciences Diplomatiques et Politiques 1995, 225
− GROVER, R.A., “Hobbes and the Concept of International Law”, in AIRAKSINEN, T. and
BERTMAN, M.A. (eds.), Hobbes War among Nations, Gower, Aldershot, 1989, 79
− GUGGENHEIM, P., “Les deux elements de la coutume en droit internationale”, in BASTID,
S. (ed.), La technique et les principes du droit public: Études en l’honneur de George
Scelle, Vol. 1, Paris, LGDJ, 1950, 275
− GUGGENHEIM, P., “Les principes de droit international public”, Recueil des Cours 1952-I,
1
− GUGGENHEIM, P., “Contribution à l’histoire des sources du droit des gens”, Recueil des
Cours 1958-II, 1
− GUTTIEREZ POSSE, H., “La maxime ut res magis valeat quam pereat (interpretation en
function de ‘l’effet utile’)”, österreichisches Zeitschrift für öffentliches Recht 1972,
− HAGGENMACHER, P., “La doctrine des deux éléments du droit coutumier dans la pratique
de la Cour internationale”, Revue Générale de Droit International Public 1986, 5

489
− HAFNER, G., “The Pros and Cons Ensuing from Fragmentation of International Law”,
Michigan Journal of International Law 2003-2004, 849
− HAIMBAUGH, Jr., G.D., “Jus Cogens: Root & Branch (An Inventory)”, Touro Law Review
1986-1987, 203
− HALTERN, U., “Internationales Verfassungsrecht? Anmerkungen zu einer
kopernikanischen Wende”, Archiv des öffentliches Recht 2003, 511
− HANCHER, L., “Constitutionalism, the Community Court and International Law”,
Netherlands yearbook of International Law 1994, 259
− HÄRLE, E., “Les principes généraux de droit et le droit des gens”, Revue de Droit
International et de Législation Comparée 1935, 663
− HART, H.L.A., “Positivism and the Separation of Law and Morals”, Harvard Law Review
1957-1958, 593
− HARTMAN, J.F., “Derogation from Human Rights Treaties in Public Emergencies”,
Harvard International Law Journal 1981, 1
− HILLGRUBER, C., “The Right of Third States to Take Countermeasures”, in TOMUSCHAT,
C. and THOUVENIN, J.-M. (eds.), The Fundamental Rules of the International Legal
Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff, 2006, 265
− HILPOLD, P., “Humanitarian Intervention: is There a Need for a Legal Reappraisal?”;
European Journal of International Law 2001, 437
− HUMPHREY, J.P., “The International Bill of Human Rights: Scope and Implementation”,
William & Mary Law Review 1975-1976, 527
− HURRELL, A., “Kant and the Kantian Paradigm in International Relations”, Review of
International Studies 1990, 183
− INSTITUT DE DROIT INTERNATIONAL, “Resolution on Obligations and Rights Erga Omnes
in International Law” (2005), at http://www.idi-
iil.org/idiE/resolutionsE/2005_kra_01_en.pdf
− INTERNATIONAL LAW ASSOCIATION, COMMITTEE ON THE FORMATION OF CUSTOMARY
(GENERAL) LAW, “Final Report of the Committee: Statement of Principles Applicable to
the Formation of General Customary International Law”, ILA Rep. 2000, 712
− JAHN, B., “Classical Smoke, Classical Mirror: Kant and Mill in Liberal International
Relations Theory”, in JAHN, B. (ed.), Classical Theory in International Relations,
Cambridge, Cambridge University Press, 2006, 178
− JAMNEJAD, M. and WOOD, M., “The Principle of Non-intervention”, Leiden Journal of
International Law 2009, 345
− JANIS, M.W., “The Nature of Jus Cogens”, Connecticut Journal of International Law
1987-1988, 359
− JENNINGS, R.Y., “The Progressive Development of International Law and Its
Codification”, British Yearbook of International Law 1947, 301
− JENNINGS, R.Y., “General Course on Principles of International Law”, Recueil des Cours
1967-II, 323
− JENNINGS, R.Y., “The Identification of International Law”, in CHENG, B. (ed.),
International Law Teaching and Practice, London, Stevens, 1982, 3
− JIMENEZ DE ARECHAGA, E., “General Course of International Law”, Recueil des Cours
1978-I, 1
− JIMÉNEZ DE ARECHAGA, E., “The Classical Sources of International Law Revisited:
Discussion”, in CASSESE, A. and WEILER, J.H.H. (eds.), Change and Stability in
International Law-Making, Berlin, de Gruyter, 1988, 8

490
− JOHNSON, D.M., “World Constitutionalism in the Theory of International Law”, in
MACDONALD, R.St.J. and JOHNSON, D.M. (eds.), Towards World Constitutionalism,
Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 3
− JØRGENSEN, N.H.B., “The Obligation of Non-assistance to the Responsible State”, in
CRAWFORD, J., PELLET A. and OLLESON, S. (eds.), The Law of International
Responsibility, Oxford, Oxford University Press, 2010, 687
− JØRGENSEN, N.H.B., “The Obligation of Cooperation”, in CRAWFORD, J., PELLET, A. and
OLLESON, S. (eds.), The Law of International Responsibility, Oxford, Oxford University
Press, 2010, 695
− JOUANNET, E., “Le principe de l’Or monétaire à propos de l’arrêt de la Cour du 30 juin
1995 dans l’affaire du Timor Oriental”, Revue Générale de Droit International Public
1996, 673
− JOYNER, C.C., “‘The Responsibility to Protect’: Humanitarian Concern and the
Lawfulness of Armed Intervention”, Virginia Journal of International Law 2006-2007,
693
− JOYNER, D.H., “The Kosovo Intervention: Legal Analysis and a More Persuasive
Paradigm”, European Journal of International Law 2002, 597
− JUDD, S., “The Unruly Horse Put out to Pasture: The Doctrine of Public Policy in the
Modern Law of Contract”, Auckland University Law Review 1996-1999, 686
− KADELBACH, S. and KLEINLEIN, T., “International Law – A Constitution for Mankind?
An Attempt at a Re-appraisal with an Analysis of Constitutional Principles”, German
Yearbook of International Law 2007, 303
− KALADHARAN NAYAR, M.G., “Introduction: Human Rights: The United Nations and the
United States Foreign Policy”, Harvard International Law Journal 1978, 813
− KANT, I., “Ideas for a Universal History with a Cosmopolitan Purpose”, in REISS, H.S.,
Kant’s Political Writings, Cambridge, Cambridge University Press, 1991, 41
− I. KANT, “On the Common Saying: ‘This may be True in Theory, but It does not Apply in
Practice’”, in H.S. REISS, Kant’s Political Writings, Cambridge, Cambridge University
Press, 1991, 61
− KANT, I., “Perpetual Peace: A Philosophical Sketch”, in REISS, H.S., Kant’s Political
Writings, Cambridge, Cambridge University Press, 1991, 93
− KANT, I., “The Metaphysics of Morals”, in REISS, H.S., Kant’s Political Writings,
Cambridge, Cambridge University Press, 1991, 131
− KARAGIANNAKIS, M., “State Immunity and Fundamental Human Rights”, Leiden Journal
of International Law 1998, 9
− KAVANAGH, R., “Oil in Troubled Waters: The International Court of Justice and East
Timor: Case concerning East Timor (Australia v Portugal)”, Sydney Law Review 1996,
87
− KAWASAKI, K., “A Brief Note on the Legal Effects of Jus Cogens in International Law”,
Hitotsubashi Journal of Law and Politics 2006, 27
− KELLY, J. PATRICK, “The Twilight of Customary International Law”, Virginia Journal of
International Law 1999-2000, 449
− KELSEN, H., “Théorie du droit international coutumier”, Revue International de la
Théorie de Droit, Nouvelle Série 1939, 253
− KELSEN, H., “The Principle of Sovereign Equality of States as a Basis for International
Organization”, Yale Law Journal 1944, 207
− KELSEN, H., “Théorie de droit international public”, Recueil des Cours 1953-III, 1
− KINGSBURY, B., “Sovereignty and Inequality”, European Journal of International Law
1998, 599

491
− KIRBY, M.B., “Peoples’ Rights and Self-Determination”, Bulletin of the Australian
Society of Legal Philosophy 1993, 25
− KIRCHNER, S., “Relative Normativity and the Constitutional Dimension of International
Law: A Place for Values in the International Legal System?”, German Law Journal 2004,
47
− KIRGIS, JR., F.L., “Custom on a Sliding Scale”, American Journal of International Law
1987, 146
− KLEFFNER, J.K., “Protection of the Wounded, Sick and Shipwrecked”, in FLECK, D. (ed.)
Handbook of International Humanitarian Law, Oxford, Oxford University Press, 2008,
325
− KLEIN, N.S., “Multilateral Disputes and the Doctrine of Necessary Parties in the East
Timor Case”, Yale Journal of International Law 1996, 305
− KLEIN, P., “Les problèmes soulevés par la référence à la ‘communauté internationale’
comme facteur de legitimité”, in CORTEN, O. (ed.), Droit, legitimité et politique
extérieure, Brussels, Bruylant, 2001, 261
− KLEIN, P., “Responsibility for Serious Breaches of Obligations Deriving from
Peremptory Norms of International Law and United Nations Law”, European Journal of
International Law 2002, 1241
− KNAUFF, M., “Konstitutionalisierung im inner- und überstaatlichen Recht – Konvergenz
oder Divergenz?”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2008,
453
− KNOTT, L., “Unocal Revisited: On the Differences between Slavery and Forced Labor in
International Law”, Wisconsin International Law Journal 2010, 201
− KOLB, R., “The Formal Source of Ius Cogens in Public International Law”, Zeitschrift für
öffentliches Recht 1998, 69
− KOLB, R., “Selected Problems in the Theory of Customary International Law”,
Netherlands International Law Review 2003, 119
− KOLB, R., “Théorie du ius cogens international”, Revue Belge de Droit International
2003, 5
− KOLB, R., “Jus cogens, intangibilité, intransgressibilité, derogation ‘positive’ et
‘négative’”, Revue Générale de Droit International Public 2005, 305
− KOLB, R., “Principles as Sources of International Law (with Special Reference to Good
Faith)”, Netherlands International Law Review 2006, 1
− KOLB, R., “Conflict entre normes de jus cogens”, in X, Droit du pouvoir, pouvoir du
droit: Mélanges offerts à Jean Salmon, Brussels, Bruylant, 2007, 481
− KOLB, R., “Observation sur l’évolution du concept de jus cogens” Revue Générale de
Droit Internationale Public 2009, 837-850
− KOPELMANAS, L., “Quelques réflexions au sujet de l’article 38, 3°, du Statut de la Cour
permanente de Justice internationale”, Revue Générale de Droit International Public
1936, 285
− KOPELMANAS, L., “Custom as a Means of the Creation of International Law”, British
Yearbook of International Law 1937, 127
− KORNICKER UHLMANN, E.M., “State Community Interest, Jus Cogens and Protection of
the Global Environment: Developing Criteria for Peremptory Norms”, Georgetown
International Environmental Law Review 1998, 101
− KOHEN, M.G., “Article 45 – Convention de 1969” in CORTEN, O. and KLEIN, P. (eds.),
Les conventions de Vienne sur le droit des traités, Commentaire article par article,
Brussels, Bruylant, 2006, 1667

492
− KOKOTT, J., “Souveräne Gleichheit und Demokratie im Völkerrecht”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 2004, 517
− KOLODKIN, R.A., “Fragmentation of International Law? A View from Russia”, in
MACDONALD, R.St.J. and JOHNSTON, D.M. (eds.), Towards World Constitutionalism,
Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 223
− KOSKENNIEMI, M., “The Politics of International Law”, European Journal of
International Law 1990, 4
− KOSKENNIEMI, M., “Hierarchy in International Law: A Sketch”, European Journal of
International Law 1997, 566
− KOSKENNIEMI, M. and LEINO, P., “Fragmentation of International Law? Postmodern
Anxieties”, Leiden Journal of International Law 2002, 553
− KOSKENNIEMI, M., “What is International Law for?”, in EVANS, M.D. (ed.), International
Law, Oxford, Oxford University Press, 2003, 89
− KOSKENNIEMI, M., “International Law in Europe: Between Tradition and Renewal”,
European Journal of International Law 2005, 113
− KOSKENNIEMI, M., “The Fate of Public International Law: Between Technique and
Politics”, Modern Law Review 2007, 1
− KOSKENNIEMI, M., “Constitutionalism as a Mindset: Reflections on Kantian Themes
about International Law and Globalization”, Theoretical Inquiries in Law 2007, 9
− KREĆA, M., “Some General Reflections on Main Features of Ius Cogens as Notion of
International Public Law”, in GUTTIÉRREZ GIRARDOT, G. et al. (eds.), New Directions in
International Law, Essays in Honour of Wolfgang Abendroth, Frankfurt, Campus Verlag,
1982, 27
− KREß, C., “The International Court of Justice and the Crime of Genocide”, European
Journal of International Law 2007, 619
− KRITSIOTIS, D., “Reappraising Policy Objections to Humanitarian Intervention”,
Michigan Journal of International Law 1997-1998, 1005
− KUNZ, J., “The Nature of Customary International Law”, American Journal of
International Law 1953, 662
− KWAKWA, E., “The International Community, International Law, and the United States :
Three in One, Two against One, or One and the Same?”, in BYERS, M. and NOLLTE, G.
(eds.), United States Hegemony and the Foundations of International Law, Cambridge,
Cambridge University Press, 2003, 25
− LACHS, M., “The Development and General Trends of International Law in Our Time”,
Recueil des Cours 1980-IV, 9
− LACHS, M., “Quelques réflexions sur la communauté internationale”, in VIRALLY, M.
(ed.), Le droit international au service de la paix, de la justice et du développement:
Mélanges Michel Virally, Paris, Pedone, 1991, 349
− LACHS, M., “Legal Framework of an International Community”, Emory International
Law Review 1992, 329
− A. LAGERWALL, “Article 64 – Convention de 1969”, in CORTEN, O. and KLEIN, P. (eds.),
Les conventions de Vienne sur le droit des traités, Commentaire article par article,
Brussels, Bruylant, 2006, 2299
− LAMMERS, J.G., “General principles of Law Recognized by Civilized Nations”, in
KALSHOVEN, F., KUYPER, P.J. and LAMMERS, J.G. (eds.), Essays on the Development of
the International Legal Order in Memory of Haro F. Van Panhuys, Alphen aan den Rijn,
Sijthoff & Noordhoff, 1980, 53
− LAPAŠ, D., “Some Remarks on Fragmentation of International Law: Disintegration or
Transformation?”, Comparative and International Law Journal of South Africa 2007, 1

493
− LAUTERPACHT, H., “Règles générales du droit de la paix”, Recueil des Cours 1937-IV, 95
− LEATHLEY, C., “An Institutional Hierarchy to Combat the Fragmentation of International
Law: Has the ILC Missed an Opportunity?”, New York University Journal of
International Law and Policy 2007-2008, 259
− LEFKOWITZ, D., “(Dis)solving the Chronological Paradox in Customary International
Law: A Hartian Approach”, Canadian Journal of Law & Jurisprudence 2008, 129
− LEHR-LEHNARDT, R., “One Small Step for Women: Female-Friendly Provisions in the
Rome Statute of the International Criminal Court”, BYU Journal of Public Law 2001-
2002, 317
− LEONETTI, A.-J., “Interprétation des traités et règles imperatives du droit international
general (jus cogens)”, österreichisches Zeitschrift fur öffentliches Recht 1973, 91
− LEVI, W., “The International Ordre Public”, Revue de Droit International, de Sciences
Diplomatiques et Politiques 1994, 55
− LEVY, J.A., “As between Princz and King: Reassessing the Law of Foreign Sovereign
Immunity as Applied to Jus Cogens Violators”, Georgetown Law Journal 1997-1998,
2703
− LEVY, J.S., “Domestic Politics and War”, Journal of Interdisciplinary History 1988, 653
− LILLICH, R.B., “Invoking International Human Rights Law in Domestic Courts”,
University of Cincinnati Law Review 1985, 367
− LINDERFALK, U., “Normative Conflict and the Fuzziness of the International Ius Cogens
Regime”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2009, 961
− LINDERFALK, U., “The Creation of Jus Cogens – Making Sense of Article 53 of the
Vienna Convention”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
2011, 359
− LOBO DE SOUZA, I., “The Role of State Consent in the Customary Process”, International
and Comparative Law Quarterly 1995, 521
− LOPEZ PEGNA, O., “Counter-Claims and Obligations Erga Omnes before the International
Court of Justice”, European Journal of International Law 1998, 724
− LUBAN, D., “Liberalism, Torture and the Ticking Bomb”, Virginia Law Review
Association 2005, 1425
− LYMAN BRUUN, L., “Beyond the 1948 Convention – Emerging Principles of Genocide in
Customary International Law”, Maryland Journal of International Law and Trade 1993,
193
− MACDONALD, R.St.J., “Fundamental Norms in Contemporary International Law”,
Canadian Journal of International Law 1987, 113
− MACDONALD, R.St.J., “The International Community as a Legal Community”, in
MACDONALD, R.St.J. and JOHNSON, D.M. (eds.), Towards World Constitutionalism,
Issues in the Legal Ordering of the World Community, Leiden, Nijhoff, 2005, 853
− MACGIBBON, I., “The Scope of Acquiescence in International Law”, British Yearbook of
International Law 1954, 143
− MACMILLAN, J., “A Kantian Protest against the Peculiar Discourse of Inter-Liberal State
Peace”, Millennium – Journal of International Studies 1995, 549
− MACMILLAN, J., “Immanuel Kant and the Democratic Peace”, in JAHN, B. (ed.),
Classical Theory in International Relations, Cambridge, Cambridge University Press,
2006, 52
− MALANCZUK, P., “Countermeasures and Self-Defence as Circumstances Precluding
Wrongfulness in the International Law Commission’s Draft Articles on State
Responsibility”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1983,
705

494
− MANN, F.A., “The Doctrine of Jus Cogens in International Law” in EHMKE, H. et al.
(eds.), Festschrift für Ulrich Scheuner zum 70 Geburtstag, Berlin, Duncker und Humblot,
1973, 399
− MAREK, K., “Contribution à l’étude du jus cogens en droit international”, in INSTITUT
UNIVERSITAIRE DE HAUTES ÉTUDES INTERNATIONALES (ed.), Recueil d’études de droit
international en hommage à Paul Guggenheim, Geneva, Imprimerie de la Tribune, 1968,
426
− MAREK, K., “Le problème des sources du droit international dans l’Arrêt sur le Plateau
Continental de la Mer du Nord”, Revue Belge de Droit International 1970, 44
− MAREK, K., “Thoughts on Codification”, Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht 1971, 489
− MARSCHIK, A., “Legislative Powers of the Security Council”, in MACDONALD, R.St.J.
and JOHNSTON, D.M. (eds.), Towards World Constitutionalism, Issues in the Legal
Ordering of the World Community, Leiden, Nijhoff, 2005, 457µ
− MATTHEWS, M.W., “Tracking the Emergence of a New International Norm: The
Responsibility to Protect and the Crisis in Darfur”, Boston College International and
Comparative Law Review 2008, 137
− MCCAFFREY, S., “Lex Lata or the Continuum of State Responsibility”, in WEILER,
J.H.H., CASSESE, A. and SPINEDI, M. (eds.), International Crimes of States. A Critical
Analysis of the ILC’s Draft Articicle 19 of State Responsibility, Berlin, de Gruyter, 1989,
242
− MCCLANE, J. BROCK, “How Late in the Emergence of a Norm of Customary Law may a
Persistent Objector object?”, ILSA Journal of International and Comparative Law 1989,
1
− MCCONNEL, M.W., “A Moral Realist Defense of Constitutional Democracy”, Chicago-
Kent Law Review 1988, 89
− MCCORQUODALE, R., “Self-determination: A Human Rights Approach”, International
and Comparative Law Quarterly 1994, 857
− MCGREGOR, L., “State Immunity and Jus Cogens”, International and Comparative Law
Quarterly 2006, 437
− MCLACHLAN, C., “The Principle of Systemic Integration and Article 31(3)(c) of the
Vienna Convention”, International and Comparative Law Quarterly 2005, 279
− MCNAIR, A.D., “The Functions and Different Legal Character of Treaties”, British
Yearbook of International Law 1930, 100
− MENDELSOHN, M.H., “Reservations to the Constitutions of International Organizations”,
British Yearbook of International Law 1971, 137
− MENDELSON, M.H., “The Subjective Element in Customary International Law”, British
Yearbook of International Law 1995, 177
− MENDELSON, M.H., “The Formation of Customary International Law”, Recueil des Cours
1998-II, 155
− MERON, T., “On a Hierarchy of International Human Rights”, American Journal of
International Law 1986, 1
− MERON, T., “The Humanization of Humanitarian Law”, American Journal of
International Law 2000, 239
− MEYROWITZ, H., “Problèmes juridiques relatifs à l’arme à neutrons”, Annuaire Français
de Droit International 1981, 87
− MIAJA DE LA MUELA, A., “Ius cogens y ius dispositivum”, in X., Estudios juridico-
sociales: Homenaje al Luiz Lagaz y Lacambra, Saragossa, Universidad de Santiago de
Compostella, 1960, 1121

495
− MILANO, E., “Diplomatic Protection and Human Rights before the International Court of
Justice: Re-Fashioning Tradition”, Netherlands Yearbook of International Law 2004, 85
− MILANOVIĆ, M., “State Responsibility for Genocide”, European Journal of International
Law 2006, 553
− MILEWICZ, K., “Emerging Patterns of Global Constitutionalization: Towards a
Conceptual Framework”, Indiana Journal of Global Legal Studies 2009, 413
− MOFIDI, M., “Prudential Timourness in the Case concerning East Timor (Portugal v.
Australia)”, Journal of International Law & Practice 1998, 35
− MOLIER, G., “Humanitarian Intervention and the Responsibility to Protect after 9/11”,
Netherlands International Law Review 2006, 37
− MONACO, R., “Cours général de droit international public”, Recueil des Cours 1968-III,
93
− MONACO, R., “Observations sur la hierarchie des sources du droit international”, in
BERNHARDT, R. et al. (eds.), Völkerrecht als Rechtsordnung, Menschenrechte,
Internationale Gerichtsbarkeit, Festschrift für Herrmann Mosler, Berlin, Springer, 1983,
599
− MONTEALEGRE, H., “The Compatibility of a State Party’s Derogation under Human
Rights Conventions with its Obligations under Protocol II and Common Article 3”,
American University Law Review 1983-1984, 41
− MORELLI, G., “Cours général de droit international public”, Recueil des Cours 1956-I,
437
− MORELLI, G., “A proposito di norme internazionale cogenti”, Rivista di Diritto
Internazionale 1968, 108
− MOSLER, H., “Jus Cogens im Völkerrecht”, Annuaire Suisse de Droit International 1968,
1
− MOSLER, H., “The International Society as a Legal Community”, Recueil des Cours
1974-IV, 1
− MOSLER, H., “Völkerrecht als Rechtsordnung”, Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht 1976, 6
− MOSLER, H., “International Legal Community”, in BERNHARDT, R. et al. (eds.),
Encyclopedia of Public International Law, Vol. II, Amsterdam North-Holland, 1995,
1251
− MOUTTAKI, S.K., “La coutume internationale: sujets de droit, consentement et formation
de la norme coutumière”, Ottowa Law Review 2003-2004, 255
− MYLES, E., “L’ ‘Humanité, la ‘Civilization’ et la ‘Communauté internationale’ dans la
perspective de la fin du régime impérial russe: Trois concepts ‘si pertinent de nos jours’”,
Annuaire Français de Droit International 2004, 24
− NAHLIK, S.E., “La conférence de Vienne sur le droit des traités. Une vue d’ensemble”,
Annuaire Français de Droit International 1969, 24
− NAHLIK, S.E., “The Grounds of Invalidity and Termination of Treaties”, American
Journal of International Law 1971, 736
− NANDA, V.P., “The Protection of Human Rights under International Law: Will the U.N.
Human Rights Council and the Emerging New Norm of ‘Responsibility to Protect’ Make
a Difference?”, Denver Journal of International Law and Policy 2006-2007, 353
− NERSESSIAN, D.L., “The Razor’s Edge: Defining and Protecting Human Groups under the
Genocide Convention”, Cornell International Law Journal 2003, 293
− NEUHOLD, H., “Die Plicht zur Zusammenarbeit zwischen den Staaten: Moralistisches
Postulat oder Völkerrechtliche Norm?”, in MIESHLER, H., MOCK, E., SIMMA, B. and

496
 TAMMELO, I. (eds.), Ius Humanitatis, Festschrift zum 90. Geburtstag von Alfred
Verdross, Berlin, Duncker & Humblot, 1980, 575
− NICHOLSON, A., “Reflexions on Siliadin v. France: Slavery and Legal Definition”,
International Journal of Human Rights 2010, 705
− NISOT, J., “Le concept de jus cogens envisage par rapport au droit international”, Revue
Belge de Droit International 1968, 1
− NOLLKAEMPER, A., “Constitutionalization and the Unity of the Law of International
Responsibility”, Indiana Journal of Global Legal Studies 2009, 535
− O’FLAHERTY, M. and FISCHER, J., “Sexual Orientation, Gender Identity and Human
Rights Law: Contextualizing the Yogyakarta Principles”, Human Rights Law Review
2008, 207
− ODA, S., “Dispute Settlement Prospects in the Law of the Sea”, International and
Comparative Law Quarterly 1995, 863
− OLIVIER, C., “Revisiting General Comment No. 29 of the United Nations Human Rights
Committee: About Fair Trial Rights and Derogations in Times of Public Emergency”,
Leiden Journal of International Law 2004, 405
− ONUF, N., “The Constitution of International Society”, European Journal of International
Law 1994, 1
− ONUF, N.G. and BIRNEY, R.K., “Peremptory Norms of International Law: Their Source,
Function and Future”, Denver Journal of International Law and Policy 1974, 187
− OOSTERVELD, V., “Sexual Slavery and the International Criminal Court: Advancing
International Law”, Michigan Journal of International Law 2003-2004, 605
− OOSTERVELD, V., “The Definition of ‘Gender’ in the Rome Statute of the International
Criminal Court: A Step Forward or Back for International Criminal Justice”, Harvard
Human Rights Journal 2005, 55
− OOSTERVELD, V., “Gender, Persecution and the International Criminal Court: Refugee
Law’s Relevance to the Crime against Humanity of Persecution”, Duke Journal of
Comparative and International Law 2006-2007, 49
− ORAISON, A., “La Cour Internationale de Justice, l’article 38 de son Statut et la coutume
internationale”, Revue de Droit International, de Sciences Diplomatiques et Politiques
2002, 103
− ORAKHELASHVILI, A., “The Impact of Peremptory Norms on the Interpretation and
Application of United Nations Security Council Resolutions”, European Journal of
International Law 2005, 59
− ORAKHELASHVILI, A., “International Public Order and the International Court’s Advisory
Opinion on Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory”, Archiv des Völkerrecht 2005, 240
− ORAKHELASHVILI, A., “State Immunity and International Public Order Revisited”,
German Yearbook of International Law 2006, 327
− ORAKHELASHVILI, A., “State Immunity and Hierarchy of Norms: Why the House of
Lords Got It Wrong”, European Journal of International Law 2007, 955
− OREND, B., “Kant on International Law and Armed Conflict”, Canadian Journal of Law
and Jurisprudence 1998, 329
− ORFORD, A., “Jurisdiction without Territory: From the Holy Roman Empire to the
Responsibility to Protect”, Michigan Journal of International Law 2008-2009, 981
− PALMISANO, G., “Les causes d’aggravation de la responsabilité des Etats et la distinction
entre ‘crimes’ et ‘délits’, Revue Générale des Droit International Public 1994, 629
− PARKER, K. and NEYLON, L.B., “Jus Cogens: Compelling the Law of Human Rigths”,
Hastings International and Comparative Law Review 1988-1989, 411

497
− PAUL, V., “The Legal Consequences of Conflict between a Treaty and an Imperative
Norm of General International Law (Jus Cogens)”, Österreichische Zeitschrift für
öffentliches Recht 1971, 19
− PAULUS, A.L., “The Influence of the United States on the Concept of the ‘International
Community’”, in BYERS, M. and NOLLTE, G. (eds.), United States Hegemony and the
Foundations of International Law, Cambridge, Cambridge University Press, 2003, 57
− PAULUS, A.L., “Jus Cogens in a Time of Hegemony and Fragmentation, An Attempt at a
Re-appraisal”, Nordic Journal of International Law 2005, 297
− PAUWELYN, J., “Bridging Fragmentation and Unity: International Law as a Universe of
Inter-connected Islands”, Michigan Journal of International Law 2003-2004, 903
− PAYANDEH, M., “Rechtscontrolle des UN-Sicherheitsrates durch staatliche und
überstaatliche Gerichte”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
2006, 41
− PAYANDEH, M., “With Great Power Comes Great Responsibility? The Concept of the
Responsibility to Protect Within the Process of International Lawmaking”, Yale Journal
of International Law 2010, 469
− PAYANDEH, M., “The Concept of International Law in the Jurisprudence of Hart”,
European Journal of International Law 2011, 967
− PELLET, A., “The Normative Dilemma: Will and Consent in International Law-Making”,
Australian Yearbook of International Law 1988-1989, 22
− PELLET, A., “Can a State Commit a Crime? Definitely, Yes!”, European Journal of
International Law 1999, 425
− PETERS, A., “Global Constitutionalism Revisited”, International Legal Theory 2005, 39
− PETERS, A., “Compensatory Constitutionalism: The Function and Potential of
Fundamental International Norms and Structures”, Leiden Journal of International Law
2006, 579
− PETERS, A., “Humanity as the A and Ω of Sovereignty”, European Journal of
International Law 2009, 513
− PETERS, A. and ARMINGEON, K., “Introduction – Global Constitutionalism from an
Interdisciplinary Perspective”, Indiana Journal of Global Legal Studies 2009, 385
− PETERS, A., “The Merits of Global Constitutionalism”, Indiana Journal of Global Legal
Studies 2009, 397
− PETERSMANN, E.-U., “How to Reform the UN-System? Constitutionalism, International
Law, and International Organizations”, Leiden Journal of International Law 1997, 421
− PETERSMANN, E.-U., “How to Constitutionalize International Law and Foreign Policy for
the Benefit of International Civil Society”, Michigan Journal of International Law 1998-
1999, 1
− PETERSMANN, E.-U., “Constitutionalism and International Adjudication: How to
Constitutionalize the U.N. Dispute Settlement System”, New York University Journal of
International Law and Politics 1998-1999, 753
− PETERSMANN, E.-U., “Constitutionalism, International Law and We the Peoples of the
United Nations” in CREMER, H.-J. et al. (eds.), Tradition und Weltoffenheit des Rechts:
Festschrift für Helmut Steinberger, Berlin, Springer, 2002, 291
− PICONE, P., “La distinzione tra norme internazionali di jus cogens e norme che producono
obblighi erga omnes”, Rivista di Diritto Internazionale 2008, 5
− POTESTÀ, M., “State Immunity and Jus Cogens Violations: The Alien Tort Statute against
the Backdrop of the Latest Developments in the ‘Law of Nations’”, Berkeley Journal of
International Law 2010, 571

498
− PRAKASH SINHA, S., “Is Self-Determination passé”, Columbia Journal of Transnational
Law 1973, 260
− PRENTICE, D.D., “Illegality and Public Policy”, in BEALE, H.G. et al. (eds.), Chitty on
Contracts, Volume I, General Principles, London, Sweet & Maxwell, 2004, 937
− PROST, M., “Discours sur le fondement, l’unité et la fragmentation du droit international :
À propos d’une utopie paresseuse”, Revue Belge de Droit International 2006, 621
− PROVOST, R., “Reciprocity in Human Rights and Humanitarian Law”, British Yearbook
of International Law 1994, 383
− QUADRI, R., “Cours général de droit international public”, Recueil des Cours 1964-III,
237
− QUAYLE, P., “The Legislative Limitations of the Genocide Convention”, International
Criminal Law Review 2005, 363
− QUIGLEY, J., “The Relation between Human Rights Law and the Law of Belligerent
Occupation: Does an Occupied Population have a Right to Freedom of Assembly and
Expression?”, Boston College International and Comparative Law Review 1989, 1
− QUIGLEY, J., “The Israel-PLO Agreements versus the Geneva Civilians Convention”,
Palestine Yearbook of International Law 1992-1994, 45
− RAMA RAO, T.S., “International Custom”, Indian Journal of International Law 1979, 515
− RANDELZHOFER, A., “General introduction to Article 2”, in SIMMA, B., MOSLER, H. and
PAULUS, A.L. (eds.), The Charter of the United Nations: A Commentary, Vol. I, Oxford,
Oxford University Press, 2002, 65
− RAO, P.S., “Multiple International Judicial Forums: A Reflection on the Growing
Strength of International Law or Its Fragmentation?”, Michigan Journal of International
Law 2003-2004, 929
− RAZ, J., “The Identity of Legal Systems”, California Law Review 1971, 795
− RAZ, J., “Legal Principles and the Limits of Law”, Yale Law Journal 1971-1972, 823
− RAZ, J., “About Morality and the Nature of Law”, American Journal of Jurisprudence
2003, 1
− REECE THOMAS, K. and SMALL, J., “Human Rights and State Immunity: Is there
Immunity from Civil Liability for Torture”, Netherlands International Law Review 2003,
1
− REIMANN, M., “A Human Right Exception to Sovereign Immunity Some Thoughts on
Princz v. Federal Republic of Germany”, Michigan Journal of International Law 1994-
1995, 403
− RIESENFELD, S.A., “Jus Dispositivum and Jus Cogens in the Light of a Recent Decision
of the German Supreme Constitutional Court”, American Journal of International Law
1966, 511
− REISMAN, W. MICHAEL, “Sovereignty and Human Rights in Contemporary International
Law”, American Journal of International Law 1990, 866
− REUTER, P., “Principes de droit international public”, Recueil des Cours 1961-II, 425
− ROBERTS, A.E., “Traditional and Modern Approaches to Customary International Law: A
Reconciliation”, American Journal of International Law 2001, 757
− ROGERS, A.P.V, “Humanitarian Intervention and International Law”, Harvard Journal of
Law and Public Policy 2003-2004, 725
− ROLIN, H., “Vers un ordre public réellement international”, in X., Hommage d’une
generation de juristes au Président Basdevant, Paris, Pedone, 1960, 441
− ROSENNE S., “The Settlement of Treaty Disputes under the Vienna Convention of 1969”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1971, 1

499
− ROSENNE, S., “Some Reflections, Erga Omnes”, in ANGHIE, A. and STURGESS, G. (eds.),
Legal Visions of the 21st Century, Essays in Honour of Judge Christopher Weeramantry,
The Hague, Kluwer Law International, 1998, 509
− ROUGET, D., “Article 68 – Convention de 1969”, in CORTEN, O. and KLEIN, P. (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels,
Bruylant, 2006, 2469
− ROZAKIS, C.L., “The Law on Invalidity of Treaties”, Archiv für Völkerrecht 1974, 150
− RUFFERT, M., “Special Jurisdiction of the ICJ in the Case of Infringement of
Fundamental Rules of the International Legal Order”, in TOMUSCHAT, C.and THOUVENIN,
J.-M. (eds.), The Fundamental Rules of the International Legal Order, Jus Cogens and
Obligations Erga Omnes, Leiden, Nijhoff, 2006, 295
− RUIZ FABRI, H., “Article 66 – Convention de 1969”, in CORTEN, O. and KLEIN, P. (eds.),
Les conventions de Vienne sur le droit des traités, Commentaire Article par Article,
Brussels, Bruylant, 2006, 2391
− RUYS, T. and VERHOEVEN, S., “DRC v. Uganda: The Applicability of International
Humanitarian Law and Human Rights Law in Occupied Territories”, in ARNOLD, R. and
QUÉNIVET, N. (eds.), International Humanitarian Law and Human Rights Law, Towards
a New Merger in International Law, Leiden, Nijhoff, 2008, 155
− SACHARIEW, K., “State Responsibility for Multilateral Treaty Violations: Identifying the
Injured State and Its Legal Status”, Netherlands International Law Review 1988, 273
− SASSÒLI, M., “The Status of Persons Held in Guantánamo under International
Humanitarian Law”, Journal of International Criminal Justice 2004, 96
− SASSÒLI, M., “Use and Abuse of the Laws of War in the ‘War on Terrorism’”, Law and
Inequality 2004, 195
− SCHABAS, W.A., “Groups Protected by the Genocide Convention: Conflicting
Interpretations from the International Criminal Tribunal for Rwanda”, ILSA Journal of
International and Comparative Law 1999-2000, 375
− SCHACHTER, O., “International Law in Theory and Practice: General Course in Public
International Law”, Recueil des Cours 1982-V, 1
− SCHACHTER, O., “The Decline of the Nation-State and Its Implications for International
Law”, Columbia Journal of Transnational Law 1997, 7
− SCHAUER, F., “Constitutional Positivism”, Connecticut Law Review 1992-1993, 797
− SCHAUER, F., “The Limited Domain of the Law”, Virginia Law Review 2004, 1909
− SCHERMERS, H.G., “The Suitability of Reservations to Multilateral Treaties”, Netherlands
International Law Review 1959, 350
− SCHEUNER, U., “Conflict of Treaty Provisions with A Peremptory Norm of General
International Law and Its Consequences, Comments on Arts. 50, 61 and 67 of the ILC’s
Draft Articles on the Law of Treaties”, Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht 1967, 520
− SCHEUNER, U., “Conflict of Teaty Provisions with a Peremptory Norms of General
International Law”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
1969, 28
− SCHOLTEN, P., “Rechtsbeginselen”, in X., Mededeelingen der Koninklijke Akademie van
Wetenschappen, Afdeeling Letterkunde, Deel 80, Serie B, Amsterdam, Noord-
Hollandsche Uitgevers-Maatschappij, 1935, 259
− SCHWARZ, W., “Kant’s Philosophy of Law and International Peace”, Philosophy and
Phenomenological Research 1962, 71
− SCHWARZENBERGER, G., “International Jus Cogens?”, Texas Law Review 1964-1965, 455

500
− SCHWARZENBERGER, G., “The Problem of International Public Policy”, Current Legal
Problems 1965, 191
− SCHWELB, E., “Some Aspects of International Jus Cogens as Formulated by the
International Law Commission, American Journal of International Law 1967, 946
− SCHWÖBEL, C.E.J., “Organic Global Constitutionalism”, Leiden Journal of International
Law 2010, 529
− SCOBBIE, I.G.M. and DREW, C.J., “Self-Determination Undermined: The Case of East
Timor”, Leiden Journal of International Law 1996, 185
− SCOBBIE, I., “The Invocation of Responsibility for the Breach of ‘Obligations under
Peremptory Norms of General International Law’”, European Journal of International
Law 2002, 1201
− SEBOK, A., “Finding Wittgenstein at the Core of the Rule of Recognition”, Southern
Methodist University Law Review 1999, 75
− SEFERIADES, S., “Aperçus sur la coutume juridique internationale et notamment son
fondement”, Revue Général de Droit International Public 1936, 129
− SHAND, J., “Unblinkering the Unruly Horse: Public Policy in the Law of Contract”,
Cambridge Law Journal 1972, 144
− SHELL, G.R., “Contracts in the Modern Supreme Court, California Law Review 1993,
431
− SHELL, S.M., “Kant on Just War and ‘Unjust Enemies’: Reflections on a Pleonasm”,
Kantian Review 2005, 82
− SHELTON, D., “International Law and ‘Relative Normativity’”, in M.D. EVANS (ed.),
International Law, Oxford, Oxford University Press, 2003, 145
− SHELTON, D., “Normative Hierarchy in International Law”, American Journal of
International Law 2006, 291
− SHEN, J., “The Non-intervention Principle and Humanitarian Intervention in International
Law, International Legal Theory 2001, 48
− SICILIANOS, L.-A., “The Classification of Obligations and the Multilateral Dimension of
the Relations of International Responsibility”, European Journal of International Law
2002, 1127
− SICILIANOS, L.-A., Countermeasures in Response to Grave Violations”, in CRAWFORD, J.,
PELLET, A. and OLLESON, S. (eds.), The Law of International Responsibility, Oxford,
Oxford University Press, 2010, 1137
− SIMMA, B., “Self-contained Regimes”, Netherlands Yearbook of International Law 1985,
112
− SIMMA, B., “Bilateralism and Community Interests in the Law of State Responsibility”,
in DINSTEIN, Y. and TABORY, M. (eds.), International Law at a Time of Perplexity,
Essays in Honour of Shabtai Rosenne, Dordrecht, Nijhoff, 1989, 821
− SIMMA, B., “From Bilateralism to Community Interest”, Recueil des Cours 1994-IV, 217
− SIMMA, B., “The Contribution of Alfred Verdross to the Theory of International Law”,
European Journal of International Law 1995, 33
− SIMMA, B., “NATO, the UN and the Use of Force: Legal Aspects”, European Journal of
International Law 1999, 1
− SIMMA, B., “Fragmentation in a Positive Light”, Michigan Journal of International Law
2003-2004, 845
− SIMMA, B. and PAULUS, A.L., “The ‘International Community’: Facing the Challenge of
Globalization”, European Journal of International Law 1998, 266
− SIMPSON, G., “The Great Powers, Sovereign Equality and the Making of the United
Nations Charter”, Australian Yearbook of International Law 2000, 133

501
− SIMPSON, G., “Two Liberalisms”, European Journal of International Law 2001, 537
− SINCLAIR, I.M., “Vienna Conference on the Law of Treaties”, International and
Comparative Law Quarterly 1970, 47
− SIVAKUMARAN, S., “Torture in International Human Rights and International
Humanitarian Law: The Actor and the Ad Hoc Tribunals”, Leiden Journal of
International Law 2005, 541
− SKUBISZEWSKI, K., “Elements of Custom and The Hague Court”, Zeitschrift für
ausländisches öffentliches Recht und Völkerrecht 1971, 810
− SKUBISZEWSKI, K., “International Legislation”, in BERNHARDT, R. et al. (eds.),
Encyclopedia of Public International Law, Vol. II, Amsterdam, Elsevier, 1995, 1255-
1262
− SLAUGHTER, A.-M., “International Law in a World of Liberal States”, European Journal
of International Law 1994, 503
− SLAUGHTER, A-M., “Security, Solidarity, and Sovereignty: The Grand Themes of UN
Reform”, American Journal of International Law 2005, 619
− SLOAN, B., “General Assembly Resolutions Revisited (Forty Years Later)”, British
Yearbook of International Law 1988, 39
− SOHN, L.B., “‘Generally Accepted’ International Rules”, Washington Law Review 1986,
1073
− SOHN, L.B., “Sources of International Law”, Georgia Journal of International and
Comparative Law 1995-1996, 399
− SØRENSON, G., “Kant and Processes of Democratization: Consequences for Neorealist
Thought”, Journal of Peace Research 1992, 397
− SØRENSEN, M., “Principes de Droit International Public”, Recueil des Cours 1960-III, 1
− SPINEDI, M., “From One Codification to Another: Bilateralism and Multilateralism in the
Genesis of the Codification on the Law of Treaties and the Law of State Responsibility”,
European Journal of International Law 2002, 1099
− STAHN, C., “Responsibility to Protect: Political Rhetoric or Emerging Norm?”, American
Journal of International Law 2007, 99
− STEIN, T.L., “The Approach of a Different Drummer”, Harvard International Law
Journal 1985, 457
− STERN, B., “Custom at the Heart of International Law”, Duke Journal of Comparative &
International Law 2001, 89
− STEVE, S., “The Contemporary Legality of Unilateral Humanitarian Intervention”,
California Western International Law Journal 1993-1994, 117
− STONE SWEET, A., “Constitutionalism, Legal Pluralism, and International Regimes,”
Indiana Journal of Global Legal Studies 2009, 621
− STREBEL, K., “Quellen des Völkerrechts als Rechtsordnung”, Zeitschrift für
äuslandisches öffentliches Recht und Völkerrecht 1976, 301
− STRUPP, K., “Le droit de juge international de statuer selon l’équité”, Recueil des Cours
1930-III, 351
− STRUPP, K., “Les règles générales du droit de la paix”, Recueil des Cours 1934-I, 259
− STRYDOM, E., “Ius Cogens: Peremptory Norm or Totalitarian Instrument”, South Africa
Yearbook of International Law 1988-1989, 42
− SUY, E., “The Concept of Jus Cogens in Public International Law”, in CARNEGIE
ENDOWMENT FOR INTERNATIONAL PEACE (EUROPEAN CENTRE), The Concept of Jus
Cogens in International Law, Papers and Proceedings Conference on International Law,
Lagonissi, Greece, April 3-8, 1966, Geneva, Carnegie Endowment for International
Peace, 1967, 2

502
− SUY, E., “New Normativity in the International Community? Discussion”, in CASSESE, A.
and WEILER, J.H.H. (eds.), Change and Stability in International Law-Making, Berlin, de
Gruyter, 1988, 97
− SUY, E., “Article 53 – Convention de 1969”, in CORTEN, O. and KLEIN, P. (eds.), Les
conventions de Vienne sur le droit des traités, Commentaire article par article, Brussels,
Bruylant, 2006, 1905
− TALMON, S., “The Cyprus Question before the European Court of Justice”, European
Journal of International Law 2001, 727
− TALMON, S., “The Constitutive versus the Declaratory Theory of Recognition, Tertium
non datur?”, British Yearbook of International Law 2004, 101
− TALMON, S., “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal
Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation
without Real Substance?” in TOMUSCHAT, C., and THOUVENIN, J.-M. (eds.), The
Fundamental Rules of the International Legal Order, Leiden, Nijhoff, 2006, 101
− TAMS, C.J., “Do Serious Breaches Give Rise to Any Specific Obligations of the
Responsible State?”, European Journal of International Law 2002, 1161
− TASIOULAS, J., “In Defence of Relative Normativity: Communitarian Values and the
Nicaragua Case”, Oxford Journal of Legal Studies 1996, 85
− TERAYA, K., “Emerging Hierarchy in International Human Rights and Beyond: From the
Perspective of Non-derogable Rights”, European Journal of International Law 2001, 917
− TESÓN, F.R., “The Kantian Theory of International Law”, Columbia Law Review 1992,
53
− TESÓN, F.R., “Collective Humanitarian Intervention”, Michigan Journal of International
Law 1995-1996, 323
− TESÓN, F.R., “Defending International Law”, International Legal Theory 2005, 87
− THIERRY, H., “L’évolution du droit international public, Cours general de droit
international public”, Recueil des Cours 1990-III, 9
− THIRLWAY, H.W.A., “The Law and Procedure of the International Court of Justice 1960-
1989, Part One”, British Yearbook of International Law 1989, 1
− THIRLWAY, H.W.A., “The Law and Procedure of the International Court of Justice 1960-
1989, Part Two”, British Yearbook of International Law 1990, 1
− THIRLWAY, H.W.A., “The Law and Procedure of the International Court of Justice 1960-
1989, Part Three” British Yearbook of International Law 1991, 1
− THIRLWAY, H.W.A., “The Law and Procedure of the International Court of Justice 1960-
1989 – Part Eight”, British Yearbook of International Law 1996, 1
− THIRLWAY, H., “The Sources of International Law”, in M.D. EVANS (ed.), International
Law, Oxford, Oxford University Press, 2006, 115
− THIRLWAY, H.W.A., “Injured and Non-Injured States before the ICJ”, in RAGAZZI, M.
(ed), International Responsibility Today: Essays in Memory of Oscar Schachter,
Dordrecht, Nijhoff, 2005, 311
− THORNBERRY, P., “Confronting Racial Discrimination: A CERD Perspective”, Human
Rights Law Review 2005, 229
− THOUVENIN, J.-M., “La seizine de la CIJ en cas de violation des règles fondamentales”, in
TOMUSCHAT, C. and THOUVENIN, J.-M. (eds.), The Fundamental Rules of the
International Legal Order, Jus Cogens and Obligations Erga Omnes, Leiden, Nijhoff,
2006, 311
− THOUVENIN, J.-M., “Circumstances Precluding Wrongfulness in the ILC Articles on State
Responsibility: Self-defence”, in CRAWFORD, J., PELLET A. and OLLESON, S. (eds.), The
Law of International Responsibility, Oxford, Oxford University Press, 2010, 455

503
− TOMUSCHAT, C., “Obligations arising for States without or against Their Will”, Recueil
des Cours 1993-IV, 195
− TOMUSCHAT, C., “Die internationale Gemeinschaft”, Archiv für Völkerrecht 1995, 1
− TOMUSCHAT, C., “International Law: Ensuring the Survival of Mankind on the Eve of a
New Century”, 281 Recueil des Cours 1999, 9
− TOMUSCHAT, C., “L’immunité des Etats en cas de violations graves des droits de
l’homme”, Revue Générale de Droit International Public 2005, 51
− TRACHTMAN, J.P., “The Constitutions of the WTO”, European Journal of International
Law 2006, 623
− TUNKIN, G.I., “Co-existence and International Law”, Recueil des Cours 1958-III, 1
− TUNKIN, G.I., “Remarks on the Juridical Nature of Customary Norms of International
Law”, California Law Review 1961, 419
− TUNKIN, G.I., “Jus Cogens in Contemporary International Law”, University of Toledo
Law Review 1971, 107
− TUNKIN, G.I., “International Law in the International System”, Recueil des Cours 1975-
IV, 1
− TUNKIN, G.I., “Is General International Law Customary Law Only?”, European Journal
of International Law 1993, 534
− TURPEL, M.E. and SANDS, P., “Peremptory International Law and Sovereignty: Some
Questions”, Connecticut Journal of International Law 1987-1988, 364
− VAN AAKEN, A., “Defragmentation of Public International Law Through Interpretation:
A Methodological Proposal”, Indiana Journal Of Global Legal Studies 2009, 483
− VAN BOVEN, T.C., “Distinguishing Criteria of Human Rights”, in K. VASAK, and P.
ALSTON (eds); The International Dimensions of Human Rights, Westport (Conn.),
Greenwood, 1982, 43
− VAN SCHAACK, B., “The Crime of Political Genocide: Repairing the Genocide
Convention’s Blind Spot”, Yale Law Journal 1996-1997, 2259
− VERDROSS, A., “Le fondement du droit international”, Recueil des Cours 1927-I, 247
− (VON) VERDROSS, A., “Les principes généraux du droit dans la jurisprudence
internationale”, Recueil des Cours 1935-II, 191
− VERDROSS, A., “Forbidden Treaties in International Law”, American Journal of
International Law 1937, 571
− (VON) VERDROSS, A., “Les principes généraux du droit applicables aux rapports
internationaux”, Revue Générale de Droit International Public 1938, 44
− VERDROSS A., “Zum Problem der völkerrechtlichen Grundnorm”, in SCHÄTZEL, W. und
SCHLOCHAUER, H.-J. (eds.), Rechtsfragen der internationalen Organisation, Festschrift
für Hans Wehberg, Frankfurt, Klostermann, 1956, 385
− VERDROSS, A., “Jus Dispositivum and Jus Cogens in International Law”, American
Journal of International Law 1966, 511
− (VON) VERDROSS, A., “Les principes généraux de droit dans le système des sources du
droit international public”, in INSTITUT UNIVERSITAIRE DE HAUTES ÉTUDES
INTERNATIONALES (ed.), Recueil d’études de droit international en hommage à Paul
Guggenheim, Geneva, Imprimerie de la Tribune, 1968, 521
− VERHOEVEN, J., “Jus Cogens and Reservations or ‘Counterreservations’ to the
Jurisdiction of the International Court of Justice”, in WELLENS, K. (ed.), International
Law: Theory and Practice, Essays in Honour of Eric Suy, Den Haag, Nijhoff, 1998, 195
− VERHOEVEN, J., “Invalidity of Treaties: Anything New under the Vienna Conventions?”,
in CANNIZZARO, E. (ed.), The Law of Treaties beyond the Vienna Convention, Oxford,
Oxford University Press, 2011, 297

504
− VERMEER-KÜNZLI, A., “A Matter of Interest: Diplomatic Protection and State
Responsibility Erga Omnes”, International & Comparative Law Quarterly 2007, 553
− VIRALLY, M., “Réflexions sur le ‘Jus Cogens’”, Annuaire Français de Droit
International 1966, 5
− VIRALLY, M., “The Sources of International Law”, in M. SØRENSEN (ed.), Manual of
Public International Law, London, McMillan, 1968, 116
− VISEUR SELLERS, P., “Sexual Violence and Peremptory Norms: The Legal Value of
Rape”, Case Western Reserve Journal of International Law 2002, 287
− VITANYI, B., “Les positions doctrinales concernant le sens de la notion de ‘principes
généraux de droit reconnus par les nations civilisées’”, Revue Générale de Droit
International Public 1982, 48
− GRAF VITZTHUM, W., “Article 2(6)”, in B. SIMMA et al. (eds.), The Charter of the United
Nations, A Commentary, Vol. I, Oxford, Oxford University Press, 2002, 140
− VON BOGDANDY, A., “Constitutionalism in International Law: Comment on a Proposal
from Germany”, Harvard International Law Journal 2006, 223
− VOURNAS, E., “Prefecture of Voiotia v. the Federal Republic of Germany: Sovereign
Immunity and the Exception for Jus Cogens Violations”, New York Law School Journal
of International and Comparative Law 2001-2002, 629
− WALDEN, R.M., “The Subjective Element in the Formation of Customary International
Law”, Israel Law Review 1977, 344
− WALDEN, R.M., “Customary International Law: A Jurisprudential Analysis”, Israel Law
Review 1978, 86
− WALDOCK, H., “General Course of International Law”, Recueil des Cours 1962-II, 1
− WALDRON, J., “Review Essay, On the Objectivity of Morals: Thoughts on Gilbert’s
Democratic Individuality”, California Law Review 1992, 1361
− WALDRON, J., “Kant’s Legal Positivism”, Harvard Law Review 1995-1996, 1535
− WALDRON, J., “Moral Truth and Judicial Review”, American Journal of Jurisprudence
1998, 75
− WALDRON, J., “All We Like Sheep”, Canadian Journal of Law and Jurisprudence 1999,
169
− WALDRON, J., “Does Law Promise Justice?”, Georgia State University Law Review 2000-
2001, 47
− WALDRON, J., “Torture and Positive Law: Jurisprudence for the White House”, Columbia
Law Journal 2005, 1681
− WALDRON, J., “Cosmopolitan Norms”, in POST, R. (ed.), Another Cosmopolitanism,
Oxford, Oxford University Press, 2006, 83
− WALDRON, J., “Kant’s Theory of the State”, in KLEINGELD, P. (ed.), Toward Perpetual
Peace and Other Writings on Politics, Peace and History, New Haven, Yale University
Press, 2006, 179
− WALDRON, J., “Hart and the Principles of Legality”, in M.H. KRAMER et al. (eds.), The
Legacy of H.L.A. Hart, Oxford, Oxford University Press, 2008, 67
− C. WALTER, “Constitutionalising (Inter)national Governance – Possibilities for and
Limits to the Development of an International Constitutional Law”, German Yearbook of
International Law 2001, 170
− WALUCHOW, W.J., “Herculean Positivism”, Oxford Journal of Legal Studies 1985, 187
− WEIL, P., “Towards Relative Normativity?”, American Journal of International Law
1983, 413
− WEIL, P., “Le droit international en quête de son identité: Cours général de droit
international public”, Recueil des Cours 1992-VI, 9

505
− WEIL, P., “The Court cannot conclude Definitely…. Non Liquet Revisited”, Columbia
Journal of Transnational Law 1998, 109
− WEILER, J.H.H., “The Transformation of Europe”, Yale Law Journal 1990-1991, 2403
− WEILER, J.H.H., “The Reformation of European Constitutionalism”, Journal of Common
Market Studies 1997, 97
− WEISBURD, A.M., “Customary International Law: The Problem of Treaties”, Vanderbilt
Journal of Transnational Law 1988, 1
− WEISBURD, A.M., “The Emptiness of the Concept of Jus Cogens, as Illustrated by the
War in Bosnia-Herzegovina”, Michigan Journal of International Law 1995-1996, 24
− WEISS, T.G., “R2P after 9/11 and the World Summit”, Wisconsin International Law
Journal 2006-2007, 741
− WHEELER, N.J., “A Victory for Common Humanity? The Responsibility to Protect after
the 2005 World Summit”, Journal of International Law and International Relations
2005-2006, 95
− WINFIELD, P.H., “Public Policy in the English Common Law”, Harvard Law Review
1928-1929, 76
− WITTICH: S., “Punitive Damages”, in J. CRAWFORD, A . PELLET and S. OLLESON (eds.),
The Law of International Responsibility, Oxford, Oxford University Press, 2010, 667
− WOLFKE, K., “Jus Cogens in International Law”, Polish Yearbook of International Law
1974, 145
− WORTHLEY, B.A., “The Interaction of Public and Private International Law Today”,
Recueil des Cours 1954-I, 239
− WOUTERS, J. and VERHOEVEN, S., “The Prohibition of Genocide as a Norm of Ius Cogens
and Its Implications for the Enforcement of the Law of Genocide”, International
Criminal Law Review 2005, 401
− WOUTERS, J. and VERHOEVEN, S., “Prescription” in R. WOLFRUM, Max Planck
Encyclopedia of Public International Law, Heidelberg, Max Planck Institute for
Comparative Public Law and International Law, 2010, at www.mpepil.com.
− WRIGHT, Q., “The Interpretation of Multilateral Treaties”, American Journal of
International Law 1929, 94
− WYLER, E., “From ‘State Crime’ to Responsibility for ‘Serious Breaches of Obligations
under Peremptory Norms of General International Law’”, European Journal of
International Law 2002, 1147
− YANG, X., “Jus Cogens and State Immunity”, New Zealand Yearbook of International
Law 2006, 131
− YASMINE RASSAM, A., “Contemporary Forms of Slavery and the Evolution of the
Prohibition of Slavery under Customary International Law”, Virginia Journal of
International Law 1999, 303
− YASMINE RASSAM, A., “International Law and Contemporary Forms of Slavery: An
Economic and Social Rights-Based Approach”, Penn State International Law Review
2004-2005, 809
− YEE, S., “The News that Opinio Juris ‘Is Not a Necessary Element of Customary Law’ is
Greatly Exaggerated”, German Yearbook of International Law 2001, 227
− ZEMANEK, K., “The Legal Foundations of the International System: General Course on
Public International Law”, 266 Recueil des Cours 1997, 9
− ZEMANEK, K., “New Trends in the Enforcement of Erga Omnes Obligations”, Max
Planck Yearbook of United Nations Law 2000, 1

506
− ZEMANEK, K., “Basic Principles of UN Charter Law”, in MACDONALD, R.St.J. and
JOHNSON, D.M. (eds.), Towards World Constitutionalism, Issues in the Legal Ordering of
the World Community, Leiden, Nijhoff, 2005, 401
− ZEMANEK, K., “How to Identify Peremptory Norms of International Law”, in DUPUY, P.-
M. et al. (eds), Völkerrecht as Wertordnung, Festschrift für Christian Tomuschat, Kehl,
Engel, 2006, 1103
− ZEMANEK, K., “The Metamorphosis of Jus Cogens: From an Institution of Treaty Law to
the Bedrock of the International Legal Order?”, in CANNIZZARO, E. (ed.), The Law of
Treaties beyond the Vienna Convention, Oxford, Oxford University Press, 2011, 381
− ZIMMERMAN, A., “Sovereign Immunity and Violations of International Jus Cogens –
Some Critical Remarks”, Michigan Journal of International Law 1994-1995, 433

507