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 The Concept of
Jus Cogens
in the Law of Treaties
 The Concept of
FUS COGENS
in the Law of Treaties

Christos L. Rozakis
LL.B. (Athens), LL.M. (London & Illinois)
J.S.D. (Illinois)
Lecturer in Law,
Panteios School of Political Science,
Athens

te
1976

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 To my wife Glory
Oh peri
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“s: me
24
Ree

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 TABLE OF CONTENTS

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EIST:ORABBREVIA TIONS. & cisjels acisseisieleusuene seasons eai/eBonst acct) honenepere eR ae no ata XIII
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CHAPTER I

THE FUNCTION OF THE JUS COGENS NORMS 1]

1. The Function of the Jus Cogens Norms and its Effects upon the
IntermatiomarOrder cn rs ee oc Pe eae ee ee tn,caen cee eee ee 1]
2. Ene temporal Scope of thet] ws*Co-pe ns Punctione 9... 1240 30
A. The Non-Retroactivity of the Jus Cogens Norms and the Com-
plementing Article 64 of the Vienna Convention ................ 32
B. The Non-Retroactivity of the Vienna Convention .,...2......... 38

CHAPTER II

THE IDENTIFICATION OF THE JUS COGENS NORMS 44

ioe tive Final Vext anc ane |

reparatory Wolk 4. ey cn ee oe ae eee 44
ae INCRE CSU-OEMCEMtMICALION. ntteas ee + a's pete es ce keene he ae Coen eee SV
A. The Meaning of the Phrase (A Norm of General International Law). . aS
areoeneral Customary Laws. ote arc) nace pyts seats Cee ne ener 58
b.oGeneral. Conventional’ Law... 2.42 sic.- ciricieearte
sor eles a eee 66
B. The Meaning of the Phrase (A Norm Accepted and Recognized by the
International Community of States asa Whole) 7. ...-....=. «ane 73

CHAPTER III

THE MODIFICATION OF THE JUS COGENS NORMS 85

CHAPTER IV

THE SANCTIONING POWER OF THE JUS COGENS NORMS OS

L. The Invalidity of Treaties in Accordance with the Provisions of the Vienna

GONVENLION war pend. Sakata ee ac Sela ee ee ts islSatin atte? 97
AMAtticlenSiasa Groundiof Invalidity, see meeeiaiene rhe oiieter- teats 97
Viii Table of Contents

B. The Type of Invalidity under Article 53 at its Consequences .......

a. The Establishment ofthe Invalidity of an Illegal Treaty.........
b. The Limitations Ratione’ Personnae of the Invocation
Ok Invalidity’. .::. 5.62 skh, srgeie sale ye ee ele eee ae aes aang
c. The Non-Separability of the Provisions of an Illegal Treaty ......
d. The Irreversible Character of the Invalidity under Article 53.....
e. The Retroactive Invalidation of an Illegal Treaty ..............
2. The Termination of Treaties in Accordance with the Provisions of the
Vienna Conventione csi t oe one ea eee ener
A. Articlée4 as a ‘Ground of lerminationivss 2. 2s ts al ates ee eres
B. The Type of Termination under Article 64 and its Consequences... .
a. The Establishment of the Termination of an illegal Treaty.......
b. The Invocation Ratione Personnae of the Illegal Cha-
FaCter OT ar TRCACY o18 fee ie dsc ods see, aheed oeeuah Cattle, a tereniaele seemtan ee
6.1 he Separability of Treaty, Provisions. :< <3 24; sa eben a eee
d. The Irreversible Character of the Termination under Article 64...
e. The Ex Nunc Termination of a Treaty under Article 64.....

CHAPTER V

THE SETTLEMENT OF DISPUTES

1. The Provision on the Settlement of Disputes under Article 65 ........

A; ThecGeneral Rule Ss.2.0 . 02s aelenelene aos « nile 2 ae ee ee
B. The Provisions of Article'6S, Paragraph 4s. 2.’ sees crs ater
2. The Compulsory Means of Settlement of Disputes under Article 66 ....
A. The Compulsory Settlement of Disputes under Alinea (a) .........
B. The Compulsory Reference of Disputes to a Non-Compulsory Means of
Settlenien tt:undergAlinea (D)i irra m.ly «<a cea oheieeastckc eee een 178
CONLUSIONS oes \e: 0) 6) 6 eal ele @ fe! «ot 6 0) 109.6 (6 19) 0, oem ana @ 16 (o) eerie eifal e) © pelts: ols! olteice 16) ah wtaw

©) 0 10) OF aL", w. (enone: #1lel(@)nelm ce 18sJe (6p 61 OF (G)10) Oita! eeu wHeneuiet el bel Saal ellen eu culelieits
 PREFACE

The introduction of the concept of jus cogens inthe domain of

international legal relations - through the manifestation of the States’ will
at the Vienna Conference on the Law of Treaties - has occured at a time
of drastic transformations in the international community’s image. The world
community which in the still not very remote past consisted of the rather
small number of States of the Old World and the Americas, has been
dynamically enlarged by the entrance into the scene of a quite important
number of new States originating, by and large, from the decolonized areas
of Africa and Asia. This fact has deeply and permanently shaken the
sociopolitical roots of the community. For as it is the case with all human
societies, the new members entering into an already formed body seek the
reformulation of its traditional structures and rules of conduct so as to
better cope with new realities and interests emerging from their active
presence in the life of that social body.
The transformations in the social and legal infrastructure of the world
community are the dominant factors in both the concept’s birth and
survival. For, indeed, the concept of jus cogens came into life as
a result of a need felt by the States (old and new) which realized that in
such a vast, diversified, sometimes chaotic society as ours is, certain strict
rules of law should exist to check individual interests and short-run ends;
and to, thereby, build a coherent basis of peaceful relations and cooperation
which alone can assure the furtherance of all other specific trends and goals.
The concept of jus cogens_ has been conceived as a minimum legal
standard of world order which may give an air of social consideration to
the otherwise unstable and extremely individualistic family of Nations.
The importance of the coricept of jus cogens_ for the establish-
ment of a functioning legal order in the circumstances of an enlarged and
at the same time highly decentralized international community cannot be
overestimated. However, it should not be forgotten that this invaluable
legal device carries with it a power (that of prohibiting all agreements
contrary to the content of rules havinga jus cogens character and
of invalidating those that violate the prohibition) which, in these particular
circumstances, may be easily used in a distorting fashion. In a society in
which two basic forces (the old States of the Western World, on the one
3 Preface

side, and the new States and their allies on the other) are engaged in that
perennial conflict between continuity and change, the concept of jus
cogens may become, if skilfully manipulated, a tool of vindication
in the hands of either camp: it may~be used to preserve unaltered the
legal positions of the conservative elemerits, namely of those States whose
interests are opposed to any drastic effort of change in the kernel of the
international system. Conservative States may indeed try to protect the
rules which are dilapidated by the frequent attacks of a great number of
other members of the international community, by contending that they
areofa jus cogens character, and thus, inalienable. On the other
hand, the concept of jus cogens may become a tool of arrogance
in the hands of the majority of the members of the community - which
today is composed of the new States - upon the minority. For, if the
machinery of law-creation is basically functioning upon the premise of
the majority rule (which alone can determine which are the rules of law
for the totality of States and, consequently, which are the rules of jus
cogens aswell), then that majority may impose its opinions to the
extent of virtually paralyzing any legal initiatives of the minority. Such
an eventuality would openly contravene, however, the fundamental
nature of international law, that.is, its strictly consensual character.
For the above reasons, as well as for others which will be dealt with in
detail in the following pages, the concept of jus cogens_ should be
carefully delimited and circumscribed. The rules having the character of
jus cogens must be the result of the legislative will of all States; not
of some States having the political power to impose them or of a majority
which exploiting its numerical advantage ends up in the same result. And,
moreover, the concept should be accompanied by effective machineries
which may prevent the arbitrary use of the device and protect both the
individual State and the community at large from the possible deterioration
of its power.
The question which, therefore, arises - and which has constituted the
basic motive that led the author to the study of the contours of the con-
cept - is whether the Vienna Convention on the Law of Treaties which
provides the definition of the respective rules and a machinery for the
settlement of disputes between States concerning the rules having the
character of jus cogens, establishes a solid image of the concept
having really the power to serve the totality of the community, its con-
cerns and its goals. The answer to that question is seeked by the present
work, which, following the clear and undisputed path of the exploration
of a legal text reflecting the legal conviction of the great majority of States,
attempts to ascertain the role that the jus cogens concept may play
in the sphere of international relations in the years to come.
Preface xi

The present work is a fully revised version of the author’s doctoral

thesis submitted to the College of Law of the University of Illinois and
originally entitled Zhe Peremptory Norms of General International Law
(Jus Cogens) under the Vienna Convention on the Law of Treaties.
As it is usually the case with the newcomers in the scholarly fields, the
first version of the author’s work was much more ambiguous, much more
expanded and, for that reason, less thorough than the revised one. How-
ever, both in the first version and the final one, the author’s approach
remains the same and the general conclusions drawn from the study of the
concept of jus cogens._ in international law are tuned in the same
wavelength.
That means that the dues owed to those who contributed with their
help to the first version are still owed intact with respect to the present
final text. For that reason, I would like to thank, once again, the untiring
and patient director of this thesis, Professor John Joseph Costonis and to
acknowledge his invaluable insights and his repeated, fruitful interventions
in the various drafts. | would also like to sincerely thank Professors Peter
Hay, Harry Dieter Krause, Peter Maggs and Ralph Reisner who contributed
with their assiduous comments to the improvement of the thesis’ final
draft. The role of my wife, Glory, in the betterment of the substance and
form of both versions is such that only a dedication of the present book
to her may, I hope, pay off the immense debt.

Christos L. Rozakis
Athens, 1976
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 LIST OF ABBREVIATIONS

Commentary Draft Articles on the Law of Treaties with Commen-

taries Adopted by the International Law Commission
at its 80th Session in UNCLT Documents (or in the
ILC Yearbook 1966 II. The reference to pages made
in the footnotes of the present study correspond to
those of the UNCLT Documents)
1(a0f International Court of Justice

ICJ Reports Reports of Judgments, Advisory Opinions and Orders

(1947-)
ILC cr Commission International Law Commission

ILC Yearbook Yearbook of the International Law Commission

PCIT Permanent Court of International Justice

PCTJ Series A Collection of Judgments (1922-1930)

PCIJ Series A/B Collection of Judgments, Orders and Advisory

Opinions (1931-1940)

UN United Nations Organization

UNCLT or Conference United Nations Conference on the Law of Treaties

(Vienna, 1968/69)

UNCLT Official Records Official Records. Summary Records of the Plenary

meetings and of the meetings of the Committee of
the Whole. First Session, March 26 to May 24, 1968,
in A/CONF. 39/11 (1969)-Second Session, April 9
to May 22, 1969, in A/CONF. 39/11/Add. 1 (1970)

UNCLT Documents Official Records, Documents of the Conference.

First and Second Sessions, in A/CONF. 39/11/Add.
2 (1971)

UNGA United Nations General Assembly

 List of Abbreviations
xiv

UNGA Official Records Official Records. 18th Session, in A/C. 6/SR, 778-
836. 21rst Session, in A/C. 6/SR, 899-955

Vienna Convention Vienna Convention on the Law of Treaties in A/CONF.

or Convention 39/27 or Cmnd No 4140 (Her Majesty’s Stationary)
 INTRODUCTION

International law is a legal system which in many respects differs

substantially from its national counterparts. Yet, it must be admitted
that the fundamental difference existing between the international or-
der and the internal orders and which lies with the decentralized cha-
racter of the former is slowly but steadily fading out. The organization
of States into large or small groups pursuing common goals and gover-
ned, for that purpose, by clear rules of law usually accompanied by
relatively rigid procedural machineries is transforming international
law into a comprehensive, coherent and effective legal order.
An instance of significant change in the traditionally decentrali-
zed and individualistic patterns of international law is the introduction
in the domain of the law of treaties of the concept of jus cogens
as a legal institution intended to limit the hitherto unrestricted contra-
ctual freedom of States. Indeed, one of the basic peculiarities of inter-
national law was until quite recently the dispositive character of all
its rules unexceptionally. States were absolutely free to contract out
of general rules of law through the means of particular arrangements
valid and binding inter se. There was no other condition for the
validity of an international agreement than the existence of a duly in-
duced consent.
In all major legal systems subjects are free, it is true, to contract
out of rules of law in their inter se _ relations; that freedom, ho-
wever, is conditional. There are general rules of law which exclude the
conclusion of particular contractual arrangements conflicting with
them by actually prohibiting derogation from their content and by
threatening with invalidity any attempt of violation of that prohibition.
These rules are usually called jus cogens.!

1. The concept of jus cogens, as a legal institution, differs from one dome-
stic legal system to another, both from a terminological point of view (cf. «ordre
public», «public policy») and from the point of view of the scope with respect to the
1
2 The Concept of Jus Cogens

In principle, the ratio legis of the jus cogens rules

is to protect some common concerns of the subjects of law. A contra-
ctual arrangement, despite its bemg inter partes, may never-
theless affect such general values and interests as are considered indi-
spensable by a society at a given time.” In an organised legal order,
therefore, the function of the jus cogens_ norms is to protect
the society and its institutions from harmful consequence s of indivi-
‘dual agreements.
In the sphere of international law, the jus cogens concept,
as a notion limiting the autonomy of the will of States to contract out
of certain rules of law, remained for a long time a vision and a wish
in the writings of publicists. Indeed, the existing evidence of State pra-
ctice with respect to norms having the character of Jus cogens
cannot be considered either consistent or extensive so as to justify a
claim that there was ever any legal device accepted by States as
limiting their contractual freedom.? The orthodox approach towards

freedom allowed to the individual subjects. Concerning the latter, it may be observed
that the sociopolitical systems based upon the freedom of private transactions and
freedom of economy ailow a greater degree of autonomy of the will of individuals
than the systems based on State interventionism and contro]. For an illustration of
the attitude of the socialist States towards contractual freedom see a passage
translated from pclish in Marek’s «Contribution al’étude du jus cogensen
Droit international», 427.
2. To take an example, many legalsystems, particularly of the Christian world,
consider marriage as a social institution lying on the basis of the complex of social re-
lationships. For that reason, they prohibit the conclusion of a marriage through a pri-
vate agreement between the spouses; they consider such an agreement as invalid
or non - existent and they provide for a specific legal process to be followed for the
marriage to be deemed valid. For a brief discussion of the notion of jus cogens-
public policy in municipal law see Suy, «The Concept of Jus Cogens in Public
International Law», 20 ff.
3. The practice of States presents but afew instances where the concept of jus
cogens was mentioned. See, e.g, the ex post facto declaration of illegality
of the Munich Agreement, made jointly by the USA, USSR and Great Britain at the
expense of the defeated Germany(Tammes, International Publikrecht,
27); also, the claim of invalidity of a provision of the Treaty of Guarantee between
Cyprus, Greece, Turkey and the United Kingdom before the Security Council of the
United Nations (Jacovides, Treaties ConflictingwithPeremptory
Norms of International Law and the Zurich—London Agree-
ments; Schwelb, «Some Aspects of International Jus Cogens as Formulated by the
International Law Commission», 953). For a full appraisal of the State practice in
matters of jus cogens and the position of the judiciary see, interali ae
Schwelb, op. cit., mainly 949-960; Suy, «The Concept of Jus Co gens
in Public International Law», 60 - 69.
Introduction 3

the questions of contractual autonomy was that States were uncondi-

tionally free to conclude agreements of whatever content, even if con-
trary to already general rules of law. From a legal standpoint, no li-
mitation existed for and no particular sanction followed the conclusion
of agreements which derogated from prior rules of law however fun-
damental these rules seemed to be for the function of the international
system.

The only area where a certain reference to the concept of jus

cogens was made was, therefore, the work of the publicists. Indeed the
sensitivity of theory felt quite early —as early as the last decades of
the past century —that the incurring gradual sociopolitical changes
would bring about considerable transformations in the structure of
the international legal order. A number of writers foresaw the need of
introducing some limitations to the unrestrained contractual activity
of States. In more recent times, and more particularly after the end
of the first great war, a part of the theory felt that jus cogens
norms already existed in positive international law. They brought as
examples a number of rules which States accepted as generally binding
upon them ‘and regarding which no violations through inter se
agreements were usually manifested. The alleged compliance of States
with these norms and their fundamental character constituted for these
writers enough evidence of their Jus cogens_ status.4
However, the mere fact that the international community was
perhaps becoming increasingly mature so as to accept the imposition
of a checking mechanism upon the autonomy of State will on account
of some social considerations, does not suffice, as such, in the absence
of a more cogent evidence, to sustain the proposition that the concept
of jus cogens had actually been transformed into concrete norms
of law. Leaving aside the frequent violations of the alleged jus co-
gens norms by inter se agreements which went unprotested, it
should be stressed that despite the existence of recurrent opportunities
to state their legal conviction as to the special nature of certain rules,
the States of the international community never did so; conversely, they

4. Among the first proponents of the concept of jus cogens as part of inter-
national law one can find distinguished publicists such as von der Heydte, Verd-
ross, Dahm, Brierly, Lauterpacht, e t. al. For an extensive reference to the writings
of publicists on that matter see Paul, «The Legal Consequences of Conflict Bet-
ween a Treaty and an Imperative Norm of General International Law», 20 - 25;
Suy, «The Concept of Jus Cogens in Public International Law», 26 - 493.
4 The Concept of Jus Cogens

often expressed, jointly or individually, their approval as to the pro-

hibitive character of these rules. A clear and unequivocal expression
of the opinio juris of States as tothe jus cogens function
of certain rules of law is to be found only after the Internationa l Law
Commission assumed the task of the drafting of the articles which even-
ntually became the Vienna Convention on the Law of Treaties.°
The actual, in concreto limitation of the unrestrained li-
berty of States to contract out of established rules of law was achieved
only through the manifest expression of their acceptance of a legal
device to that effect. Such manifest expression constitutes the recent

5. The Vienna Convention on the Law of Treaties (A/CONF. 39/27) was adopted
on May 22, 1969 by the United Nations Conference on the Law of Treaties. It was the
outcome of almost twenty years of drafting and deliberations. A series of draft articles
was originally prepared by the International Law Commission with the collaboration
of the 6th Committee of the United Nations General Assembly to which the draft
articles prepared by the former were regularly submitted for consideration. The ILC
reached its final draft in its eighteenth session and, subsequently, submitted it to the
consideration of the UN General Assembly. The General Assembly decided, by its
resolution 2166 (XXI) of December 5, 1966 to convene «an international conference
of plenipotentiaries to consider the law of treaties and to embody the results of its
work in an international convention and such other instruments as it might deem
appropriate.» (Par. 1, A/CONF. 39/ 26). Indeed, the Conference was convened in
Vienna in two successive sessions: the first was from March 26 to May 24, 1968
where one hundred and three States were represented; the second took place from
April 9 to May 22, 1969 where one hundred and ten States were represented. The
Conference was divided into groups which assumed parts of the drafting and admini-
strative work of the Conference. These were the General Committee, the
Committee of the Whole, the Drafting Committee and the Credentials Committee.
«The Conference assigned to the Committee of the Whole the consideration of the
final draft articles on the law of treaties adopted by the International Law Commis-
sion and the preparation of the final provisions and of any other instruments
it might consider necessary. The Drafting Committee, in addition to its respon-
sibilities for drafting and reviewing all the texts adopted, was entrusted by the
Conference with preparation of the preamble and the Final Act.» (Paragraph 12,
A/CONF. 39/26). The final text adopted as the Vienna Convention on the Law of
Treaties is aimed at becoming a multilateral convention governing the conclusion
and operation of future international agreements in written form (article 1 and 2 of
the Vienna Convention). It has not come into force as yet. It is to come into force
«on the thiertieth day following the date of the deposit of the thirty fifth instrument
of ratification or accesion» (article 84 of the Convention). At the time that this study
is being published (May 1975) the participating States have reached the number
of twenty. For a comprehensive reference concerning the drafting history of each
article as well asa general introduction to the background of the Convention see
Rosenne, The Law of Treaties. Also UNCLT Documents.
Introduction <u

adoption of the Vienna Convention on the Law of Treaties. That Con-

vention contains a number of articles introducing in positive interna-
tional law, and more specifically in the law of treaties, the concept of
jus cogens. The basic substantive provisions of the Convention,
which delimit the function of jus cogens and its characteristics
for the purposes of the Convention are articles 53 and 64. Article 53
reads:

Treaties Conflicting with a PeremptoryNorm

of General International Law (Jus Cogens).
A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purpo-
ses of the present Convention, a peremptory norm of general in-
ternational law is a norm accepted and recognized by the interna-
tional community of States as a whole as a norm from which no
derogation is permitted and which can be modified only by a subse-
quent norm of general international law having the same character.

Article 64 reads:

Emergence of a New Peremptory Norm of Ge-

neral International Law (Jus Cogens).

If a new peremptory norm of general international law emerges,

any existing treaty which is in conflict with that norm becomes
void and terminates.

These two articles represent a progressive development of law,

as that term is accepted by international law.6 Their adoption marks

6. Article 15 of the ILC Statute enunciates the meaning of «progressive deve-

lopment of law» as well as that of «codification of international law». It reads : «In
the following articles the expression ‘progressive development of law’ is used for con-
venience as meaning the preparation of draft conventions onsubjects which have not
yet been regulated by international law or in regard to which the law has not yet been
sufficienty developed in the practice of States. Similarly, the expression ‘codifica-
tion of international law’ is used for convenience as meaning the more precise formu-
lation and systematization of rules of international law in fields where already there
has been extensive practice, precedent and doctrine.» (G A Resolution 174 (IT)
Novy. 24, 1947). Article 1 of the Statute of the ILC with which article 15 is connected
further reads : «1. The International Law Commission shall have for its object the
promotion of the progressive development of international law and its codification.
2....». In view of the lack of past consistent practice with regard to the concept of
6 The Concept of Jus Cogens

the culmination of a slow but consistent process towards the realization

by the international community of States of the undisputed existence
of some common social aims. They actually express in legal terms what
for a number of years was solely expressed in sociopolitical terms
through the reinforcement of the international organization, the posi-
tive attitude of States in confronting questions involving common in-
terests and goals and their habitual abstention from flagrant violations
of rules of law generally considered as the cornerstone of international
peaceful relations.
However, although the very introduction of the concept of jus
c¢ogens in the international legal system may be heralded as a ma-
jor breakthrough in the institutionalization of the international com-
munity, it remains to be seen whether the States which introduced it
have endowed it with a useful weaponry, at the detriment of their per-
sistent individualism, to accomplish its social task. For indeed, unlike
other concepts which were transferred from domestic legal systems, the
concept of jus cugens, being in the kernel of legal centralization,
is the less adjustable to the peculiarities of a decentralized legal system,
and more particularly to the absence of a legislative and judicial au-
thority. Being precisely intended to protect a community at large, and
to harmoniously bridge the gap between an individual interest and a
social concern, the concept of jus cogens appears unable to fun-
ction properly without some minima of effective safeguards.
But apart from securing the efficiency of the concept of jus co-
gens in a decentralized legal system, such effective safeguards are
also needed to protect the community from possible harmful effects
that an arbitrary use of the powerful concept may bring about in the
legal and social order. The fact that the J}us cogens concept car-
ries in itself the severe sanction of invalidity of all particular agreements
conflicting with any rule having that character should not be undere-
stimated. In a hierarchically horizontal legal system where no insti-
tutional control is always feasible, the abusive exercise of such power
— through unilateral assertions and whimsical disengagements from
conventional obligations — may, at times seriously threaten the secu-
rity of treaties and the axiom pacta sunt servanda.
From the point of view of legislative policy, it appears that the

jus cogens it may be safely assumed that the drafting of article 53 and 64
falls within the category of «progressive development» as defined in article 15 of
the ILC Statute, rather than within the category of «codificationn.
Introduction 7

concept of jus Cogens may properly function when the essential

requirement of a relative, at least, centralization is attained. In the
circumstances of international law, the absence of a central legislature
may be countervailed by the unconditional approval by the interna-
tional community of special procedures laid down by the States as
a whole, and endued with a norm—creating role in matters of jus
cogens, in the sense of establishing strict and undisputed criteria
for the determination of the jus cogens norms. In other words,
the international community should provide in an unequivocal and
definite manner the exact way in which the jus cogens norms
are to be identified and distinguished from all other rules of interna-
tional law.
Furthermore, the absence of a central judiciary could be covered
through the existence of a binding machinery for the settlement of all
disputes directly or indirectly connected with the application of the
jus cogens_ norms in the international order, whose invocation
would be accessible to all the States of the community. Such a machi-
nery might be considered as an adequate safeguard for the sound fun-
ction of the concept of jus cogens if further endowed with a
capacity to authoritatively invalidate an illegal treaty entering its
scope.
The question which therefore arises is whether the recently intro-
duced concept of jus cogens is actually empowered by the inter-
national community so as to deal realistically with the protection of
its values and interests in the circumstances of the international legal
system. The answer to that question must be exclusively based on a
painstaking examination of the relevant provisions of the Vienna Conven-
tion on the Law of Treaties. We say exclusively for a variety of rea-
sons. First of all, as has already been stressed, the Vienna Convention
has first introduced the concept of jus cogens in the domain of
positive law, thus being the only authoritative instrument offering, to-
gether with its preparatory work, an undisputed evidence of the acce-
ptance of that concept by the international community and of the terms
of such acceptance. All other sources of evidence, such as the scarse
relevant practice, or the writings, however abundant, on that matter,
cannot really permit a safe assessment of the opinio juris of
the States.
Secondly, the Vienna Convention is intended to become a multi-
lateral treaty generally governing the conclusion and operation of all
8 The Concept of Jus Cogens

written agreements between States.? Hence, its provisions acquire a

particular significance since they may soon constitute the sole basis
upon which the concept of jus cogens will rely in order to fun-
ction in the international system. But even if the Vienna Convention
does not ever become a general multilateral treaty, the impact that will
have as a convention in force with at least thirty five States as par-
ties,® and as an instrument whose articles have been adopted by al-
most the totality of the international community, will unquestionably
affect the development of the law on questions pertaining to the jus
cogens concept. Indeed, even as it nowstands, the Vienna Conven-
tion contains, for a considerable time to come, the authoritative evi-
dence of the legal conviction of States vis-a-vis all mattrrs with which
it deals.®
It must be stressed from the outset that the Vienna Convention
embodies a complete system of rules on invalidity. With respect to the
concept of jus cogens, beyond the substantive articles dealing
with the delimitation of the function of that concept for its purposes,
the Convention also comprises a number of articles which assist the
implementation of the substantive provisions. In effect, a party to the
Vienna Convention is obliged to impeach the validity of an illegal trea-
ty only through the machinery provided by the Convention. In con-
sequence, an examination of the provisions constituting that machi-
nery is indispensable to the full understanding of all aspects of the
jus cogens -function as conceived and laid down by the inter-
national community of States.
The present study whose aim is precisely to delineate the exact
contours of the concept of jus cogens as itis presently accepted
by States, must therefore embrace within its scope the overall system

7. Moreover, it is expected that the law of the Convention will become the basis
for another convention dealing with treaties concluded between States and interna-
tional Organizations or between two or more international Organizations. Cf. the
«Resolution Relating to Article 1 of the Vienna Convention on the Law of Treaties»
(A/CONF. 39/26) where the UN Conference on the Law of Treaties recommended
«ato the General Assembly of the United Nations [to refer] to the International
Law Commission the study, in consultation with the principal international organi-
zations, of the question of treaties concluded between States and international
organizations or between two or more international organizations.»
8. Supra, 4, Note 5.
9. For an excellent discussion of the role of normative treatiesin the formula-
tion of international customary law see Baxter, «Treaties and Custom».
Introduction 9

of rules of the Vienna Convention pertaining, directly or indirectly,

to that concept. Its ultimate purpose is to prove that the drafters of
the Vienna Convention have introduced in positive international law
a concept which, though intended, in principle, to be identical as to
its function with the corresponding notions of municipal legal orders,
has in reality been adapted to the peculiarities and limitations of in-
ternational law. Indeed, it will be seen that the Convention does not
sufficiently empower the concept of Jus cogens_ with the capa-
city to fully fulfil, through its provisions, its social function.
More specifically, the present study is aimed at exposing in a sy-
stematic way the hiatus existing between the substantive provisions
of the Convention which lay down the function of the jus cogens
concept and the provisions implementing that functions. In effect, the
substantive provisions, as such, introduce in the international legal
system the concept of }us cogens duly empowered with the san-
ction of invalidity to be applied to all treaties which conflict with the
content of norms having that imperative character; but the articles
which are assigned to deal with the materialization of that sanction
and which constitute the only legal tool through which the parties to
the Convention may contest the legality of a treaty, are quite often
unable to fulfil the intended function of the substantive articles.
All things considered, it should be conceded that again, as in so
many other instances in international law, the last word is left to po-
litics: under the circumstances of the Vienna Convention, the concept
of jus cogens may properly function only if, apart from using
the legal weaponry offered by that instrument, States resort at the same
time to some means of political persuasion. This is the only realistic
conclusion which may be drawn from the examination of the Vienna
Convention whose drafters did not venture to deviate from their tra-
ditional predilections and fears but preferred to adjust the concept
of jus cogens to realities which are totally alien to its nature.

The present study is divided into five chapters. The first chapter
deals with the questions of the function of the Jus cogens norms
as depicted through the substantive provisions of the Convention and
the preparatory work. The second chapter examines, through the same
sources, the identification of the jus cogens norms, namely the
criteria by which these norms can be identified as actually belonging
to the family of jus cogens. The third chapter briefly deals with
the method of modification of the jus cogens norms in the circum-
10 The Concept of Jus Cogens

stances of the decentralized international legal relations. Finally, the

two last chapters are intended to show how the articles which imple-
ment the function provided by the substantive articles treat the ove-
rall question of invalidity or termination: the fourth chapter examines
the «demystifying» effects of the implementing provisions upon the —
austere sanction laid down by the substantive articles; while the fifth
chapter will examine the machinery provided by the Convention for
the settlement of disputes arising out of the application of the imple-
menting provisios.!°

10. In order to complete the profile of the concept of jus cogens the fol-
lowing implementing articles wil] be discussed or analyzed : article 42 (Validity and
Continuance in Force of Treaties); article 44 (Separability of Treaty Provisions);
article 65 (Procedure to be Followed with Respect to Invalidity, Termination, With-
drawal from or Suspension of the Operation of a Treaty); article 66 (Procedures for
Judicial Settlement, Arbitration and Conciliation); article 67 (Instruments for De-
claring Invalid, Terminating, Withdrawing from or Suspending the Operation of a
Treaty); and, finally, article 71 (Consequences of Invalidity of a Treaty which Con-
flicts with a Peremptory Norm of General International Law). Apart from these
articles which will be, more or less, thoroughly examined the present analysis will
also be assisted by other articles of the Convention of a general nature and other
instruments (such as the UN Charter and the ICJ Statute). Reference to these
articles and instruments will be individually made in the places where they will be
examined.
 CHAPTER I

THE FUNCTION OF THE JUS COGENS NORMS

The term «concept of jus cogens» isa theoretical inference

whose function is actually discernible through the legal norms bearing
its peculiar traits. For that reason, the Vienna Convention does not
refer to the concept, as such, but to the norms which are invested with
the special qualities of that concept and which are called, for its pur-
poses, «peremptory norms of general international law» or «jus co-
gens» (norms). In the following discussion, therefore, the analysis
of the function of jus cogens will be made on the basis of these
norms through which the function of the concept is manifested.

1. The Funetion of the Jus Cogens Norms and its Effects upon
the International Order.

The specific function of the jus cogens norms in the sphere

of the law treaties may be inferred from two sentences of article 53 of
the Vienna Convention. The introductory and, at the same time, ope-
rative sentence of that article provides that «a treaty is void if, at
the time of its conclusion, it conflicts with a peremptory norm of ge-
neral international law». Furthermore, the ensuing sentence of the ar-
ticle stipulates that a peremptory norm of general international law
for the purposes of the Convention is, inter alia, a norm from
which no derogation is permitted.
A joint interpretation of the above two sentences leads to the con-
clusion that the specific function of the jus cogens norms in the
domain of the law of treaties is to prevent violations of the substantive
provisions of norms having a peremptory character through the legal
weapon of invalidity. In other words, as all other rules of law, a jus
cogens norm contains first of all a substantive provision intended
to regulate a particular conduct of the subjects of the legal system wi-
1p The Concept of Jus Cogens

thin which it is purported to function. But beyond, and as a safeguard

of, this substantive regulatory part, a jus cogens norm contains
an express (or, possibly, implied) command prohibiting any deroga-
tion from the substantive provision. In the event that the imperative
norm is violated, the act which constituted the violation is void and
thereby unable to create law conflicting with the norm and superse-
ding its regulation. In short, defiance of the prohibition of derogation
froma jus cogens norm by the subjects of law through the con-
clusion of a treaty conflicting with such norm is sanctionec with the
invalidity of their instrument.’
From the very beginning of the drafting history of the present
Convention on the Law of Treaties, and throughout all the various
drafting stages of the substantive provisions on the peremptory norms,
the function of these norms was conceived, in its essence, in a man-
ner identical to that in which it is depicted in the present article 53.
The idea of the inclusion of some provisions in the draft articles
on the Law of Treaties generally limiting the content of the contra-
ctual activity of States is found in the First Report on the Law of
Treaties submitted for the consideration of the International Law Com-
mission by the Second Special Rapporteur, Sir Hersch Lauterpacht.?
Article 15 of that Report read:
Consistency with International Law
A treaty, or any of its provisions, is void if its performance invol-
‘ves an-act which is illegal under international law and if it is de-
clared so to be by the International Court of Justice.

1. As an example of the functioning capacity of a jus cogens norm one may

bring the operation of the rule on the prohibition of the use of force in international
relations. This rule has been widely accepted by both States in the Vienna Conference
and the doctrine of international law as the most characteristic example of a jus
cogens norm nowadays. This rule of law, acting as ajus cogens norm prohibits
the conclusion of an agreement violating its content, e.g. an offensive alliance. In
the event of a conclusion of such agreement the latter is void and the general rule
on the prohibition continues to be binding upon the parties even in their inter
se relations.
2,.1LC Yearbook, 154 ff. (1953, II). Howerer, even before that date the
first Special Rapporteur, Brierly, who did not produce but a general study of a pre-
liminary nature through the drafting of only some parts of the law of treaties, refer-
red to the notion of contractual limitation by examining past unofficial codes on the
law of treaties and the doctrine on that matter. Cf. ILC Year boo kee aGehh.
(95Oh ene
The Function of the Jus Cogens Norms 13

In the commentary to that article, Sir Hersch explained that «the

test whether the object of the treaty is illegal and whether the treaty
is void for that reason is not inconsistency with customary internatio-
nal law pure and simple, but inconsistency with such overriding prin-
ciples of international law which may be regarded as constituting prin-
ciples of international public policy (ordre international
public)». He accepted, therefore, the general power of particular
agreements to change inter se _ international law but he proposed,
at the same time, a limitation of the hitherto absolute contractual free-
dom through the prohibition of the conclusion of agreements confli-
cting with what he called «international public policy».
The example of Sir Hersch Lauterpacht was followed by the next
Special Rapporteurs, Fitzmaurice and Waldock. Fitzmaurice produced
a quite elaborate Code on the Law of Treaties in which he included
provisions dealing with the «illegality of the object of treaty» and pro-
posing as a sanction not the invalidity of the instrument but merely
its unenforceability. Waldock, the fourth and final Special Rapporteur,
was the one who formulated the provision on the peremptory norms
in its final form insofar as the function of the Jus cogens norms
was concerned. After a number of alterations, Waldock’s text became
the final draft adopted by the International Law Commission and the
basis of all further discussions by the States in the General Assembly
of the United Nations and the Vienna Conference on the Law of Trea-
ties.? The article which was proposed by the International Law Com-
mission read:

3. Article 13 of the Waldock’s draft on the law of treaties [ILC Year book,
52 ff. (4963, 1I1)] entitled «Treaties Void for Illegality» dealt comprehensively with
the question of jus cogens. The text had as follows: «1. A treaty is contrary
to international law and void if its object or execution involves the infringement of
ageneral rule or principle of international law having the character of jus cogens.
2. In particular, a treaty is contrary to international law and void if its object or exe-
cution involves: a) the use or threat of force in contravention of the principles of the
Charter of the United Nations; b) any act or omission characterized by international
law as an international crime; orc) any act or omission in suppression or punishment
of which every State is required by international law to co-operate. 3. Ifa provision,
the object or execution of which infringesa general rule or principle of international
law having the character of jus cogens, is not essentially connected with the prin-
ciple object of the treaty and is clearly severable from the remainder of the treaty,
only that provision shall be void. 4. The provisions of this article donot apply, ho-
wever, to a general multilateral treaty which abrogates or modifies a rule having the
character of jus cogens». In the same draft, Waldock defines the meaning of the
14 The Concept of Jus Cogens

Treaties Conflicting witha Peremptory Norm

of General International Law
A treaty is void if it conflicts with a: peremptory norm of gene-
ral international law from which no derogation is permitted and
which can be modified only by a subsequent norm of general in-
ternational law having the same character.
The preparatory work proper, namely the deliberations and deci-
sions of the legislative corpus of international law, in other words the
States, at the 6th Committee of the General Assembly of the United
Nations and in the Conference in Vienna revealed that there was an
undisputed consensus on the above discussed function of the jus co-
gens norms.’ Although the aggregate of the articles on Jus co-
gens raised a number of problems, the function of the concept, as
such, was never disputed. On the contrary, one may say that there is
abundant evidence that throughout the deliberations the State repre-
sentatives gave the concept the meaning which the latter preserved
until its adoption by the Convention: that of a concept limiting the
contractual autonomy of the States and sanctioning all violations with
the rigid means of invalidity.°
The introduction of the concept of Jus cogens in positive
international law carrying the specific function which is attributed
to it by the international community, may bring about a number of
significant changes in the overall system of international legal relations.
The most evident effects of the function of the jus cogens norms,
which should be separately discussed, seem to be: (a) the limitation
of the will of States through certain rules of law; (b) the building of
a vertical system of law; and (c) the introduction in the international
legal system of the notion of objective illegality.

jus cogensrules in his article 1, par. 3(c) : «J us co gens means a peremptory

norm of general international law from which no derogation is permitted except upon
a ground specifically sanctioned by general international law and which may be
modified and annulled only by a subsequent norm of international law».
4. It is almost impossible to gather all individual instances of, evidence indi-
cating the consensus of States participating in the General Assembly’s 6th Committee
or in the Vienna Conference vis-a-vis the question of the function of the jus co-
gens norms. The great majority of representatives who spoke on the topic of jus
cogens expressed directly or indirectly their agreement to the specific function
of these norms as presented in the draft article of the ILC.
Open ytronenl Odane ateercre rar
The Function of the Jus Cogens Norms 15

With respect to the first point, it can be safely assumed that the
introduction of the concept of jus cogens in the law of treaties
potentially represents the opening of a new era in the relations of Sta-
tes. The hitherto unrestricted State sovereignty has at last accepted
a certain curtailment of its freedom in entering agreements, and has
for the first time consented, in principle, to the undisputed reality of
such a thing as an illegal treaty, in other words a treaty concluded
in defiance of some general interests or values of the international com-
munity of States as a whole.
The attitude of the States which participated in the Vienna Con-
ference witnesses their conviction that the concept of jus cogens
constitutes part of positive law. The general guiding lines of article 53
will further assist the emergence and crystallization of rules of law ha-
ving the character of jus cogens. Although this may at first
prove to be a slow process — for the criteria enunciated in that article
are quite severe ® — it is to be expected that the number of the jus
cogens norms will increase steadily with time and as the institu-
tionalization of the international community is perfected. The present
identification of the jus cogens norms with the constitutional -
moral norms which are on the basis of the international order, such
as the prohibition of the use of force, the freedom of the seas, human
rights and self-determination,’ will presumably be enriched by rules
of organizational and technical nature.
Indeed, there can be little doubt that the complex international
relations of the future, an indication of which the world presently evi-
dences, will lead the international community to the realization of the
absolute need to develop a legal corpus of imperative nature to govern
the widening spectrum of inter-State activities. The need of a legal
uniformity, at least with respect to the basic rules which make a minimum
of international order possible, is already felt. The world is no longer
constituted of a numerus clausus_ of national entities with
the same or similar cultural, ethical and political background where
a kinship of interests determined the development of their relations.
The disparity of the fundamental political mentalities and interests
of today and of the future will demand a further check on State in-
dividualism and a greater degree of maturity and self-discipline in or-

i, WM ely SS Ee Re Ol.
7. For a reference to the jus co gens norms proposed by the States during
the Vienna Conference seeinfra, 47.
16 The Concept of Jus Cogens

der for the world machine to continue properly functioning. The tra-
ditionally tacit understanding of the world community toward the fun-
damental requirements of the international order will have to be con-
solidated and safeguarded by specific rules of common acceptance
to that effect. Those rules must have an imperative character, since
it is only through the conscious subordination of State activity to the
general welfare of the international community that the desired ba-
lance between likely conflicting interests could indeed be maintained.
Given, therefore, that the already great variety of fields presen-
ting a common interest is constantly growing, the emergence of impe-
rative norms to govern the basic, at least, aspects of the activity of
States in those fields seems assured. With the lapse of time, norms
of jus cogens will increasingly cover specific areas of fields such
as international commerce, international economics, international ma-
ritime law and many others, thus gradually preempting most of the
spheres of activity which are presently left to the determination of
the individual will of States.
It would appear, therefore, that the first major effect that the in-
troduction of the concept of Jus cogens will have upon the in-
ternational order, if allowed to properly function, is the radical trans-
formation of the traditional pattern of the autonomy of State will
through the gradual creation of norms of peremptory character in all
fields of common human activity. The introduction of the concept
of jus cogens offers the necessary term of reference for the crea-
tion of such norms. The rest may be attained through the accelerated
pace of the international law-making: codificatory treaties of gene-
ral participation and frequent occasions of massive expression of the
legal conviction of the international community will bring about both
the clarification of the ambiguities as to the imperative character of
certain rules, and the introduction of new peremptory norms of ge-
neral international law.

The question which should be raised at this stage of the examina-

tion of the function of the jus cogens_ norms and its effects on
the international order, is whether these rules work in a similar way
in the sphere of the unilateral acts or actions of States.8 This question,

8. By «act» is here meant a formal manifestation of the will of a State (such as

a declaration), while by «action» is meant any activity of a State or its subjects
which has some significance for international law (such as military planes overflying
The Function of the Jus Cogens Norms 17

of course, goes beyond the scope of the present study which is intere-
sted in analyzing the concept in the sphere of the law of treaties; but
because of its possible practical significance it should nevertheless be
briefly examined.
A number of writers who have dealt with the question of jus co-
gens norms in international law, have espoused the position that a
peremptory norm does not function only with respect to treaties or
agreements but also with respect to unilateral acts or actions of States.®
In practical terms, that contention means thata jus cogens norm
has the power to automatically invalidate a unilateral act or action
which conflicts with its content; and, moreover, that every member
of the international community has the right, regardless of whether
the act or action turns against it, to ask for its invalidation. Pro -
fessor Suy, who dealt with the question of the jus cogens norms
quite extensively, summarized that position in the following lines :

If an international jus cogens exists, it must, indeed, make

necessarily null and void any of those legal acts and actions of
States whose object is unlawful. If an agreement which does not
conform with the rules of the jus cogens is considered null
and void the reason is that its effects are contrary to inter-
national public policy. In that case it is inconceivable that this
effect should not extend to any act or action having in the hie-
rarchy of legal norms a lower rank than treaties. Any legal act
of whatever nature and, hence, any international agreement is
unlawful in so far as it infringes a rule of the Jus cogens.
However, in virtue of the principles of recognition or tolerance any
unlawful act may begin after a long time to have legal effects:
ex factis jus oritur. Now one does not see why some-
thing which is intolerable as far as international treaties are con-
cerned would not be so in respect of any other legal act. If the
specific effect of the application of the jus cogens is to ren-
der null and void (even between the Contracting Parties) a tre-
aty whose object is contrary to its absolutely binding rules the

the territory of a foreign State; or fishing in the territorial

or international waters,
etc.)
9. Among other writers, Dahm (V6lkerrecht III, 60) and Fitzmaurice
(«The General Principles of International Law», 122)
AOSe lin hres 24:
18 The Concept of Jus Cogens

same must apply to any legal act or action which might lead in
fact, through recognition or tolerance, to a tacit agreement.

This position of the doctrine actually proposes a radical modifi-

cation of the traditional scheme of illegality of acts or actions in in-
ternational law. Indeed, the typical characteristic of the international
legal system in matters of illegality is that a State may be responsible
for an illegal act or action only towards the State against which that
act or action turns.” If one accepts that a jus cogens norm fun-
ctions also in the field of the unilateral acts or actions, then one must
equally accept that the invalidating capacity of the Jus cogens
concept may be used by the whole international community of States
against the wrongdoer and not only by the State or States directly
damaged by the act or action. As a result, the legal interest required
for the invocation of the international responsibility and the plea of
reparation would be totally reformulated. While the customary pattern of
the strict legal interest (that of the directly damaged State) would
continue to govern illegalities resulting from violations of rules of law
other than those having the jus cogens character, in the event
of a unilateral act or action violating a jus cogens norm, the
whole international community of States, jointly or individually, would
acquire the right to invoke the invalid character of the act or action
with a view to extinguishing its effects.
It is unquestionable that the expansion of the functional scope of
the jus cogeéns concept in the field of unilateral acts or actions
would be beneficial to the coherence of the international legal system.
Yet it appears that the function of jus cogens in that area would
lose part of its effectiveness at least with respect to actions of
unilateral character. Indeed, the significance of the invalidating ca-
pacity of the J}us cogens norms lies, to a great extent, in the fact
that it may prevent through a timely reaction of the international com-
munity the undesirable results of an illegality. This is possible in the
case of a written treaty which may be prevented upon its conclusion
(and before its eyecution) from producing harmful consequences through
a declaration of its invalid character; but since the illegal effects of
a unilateral action are nothing but the action itself, a prevention of
those effects is impossible.

11. Suy, «The Concept of Jus Cogens in Public International Law», 75. Emphasis
supplied.
NPA, Aa een =Die
The Function of the Jus Cogens Norms 19

The positive element of an expansion of the jus cogens_ fun-

ction would be, of course, that the international community would
have the right to invoke the illegality of an action even if the damage
turned only against one of its members. The implications of such a
possibility should not be underestimated. It might have an extraordi-
nary social importance in all those cases where a State against which
the illegality turns is unable for one reason or another to invoke the
responsibility of the wrongdoer and to ask for the reestablishment of
the status quo ante. The ability of a third State not directly
damaged by the illegal action or of the international community jointly
to ask for the extinction of the illegal, void action would have the
same beneficial results as the invocation of the responsibility of the
wrongdoer by the damaged State: the wrongdoer would be obliged to
extinguish all the consequences of the illegality, namely to reestablish
the status quo ante _ with respect to all damages, moral or
material, done to the State or States concerned.
The expansion of the functional scope of the jus cogens norms
beyond the sphere of treaties to that of unilateral acts or actions would
mean, in consequence, the perfection of the international legal system
which would thus recognize the existence of the objective ille-
gality of certain acts or actions of its subjects. Such expansion seems,
therefore, desirable de lege ferenda. Yet, no intention of the
States which participated in the various drafting bodies of the Law of
Treaties to that effect can be inferred from the preparatory work pro-
per—namely the work at the United Nations General Assembly as
well as in the Conference in Vienna — which does not contain any re-
ference whatsoever on the matter of the jus cogens function in
the field of unilateral acts or actions. The final text of the Vienna Con-
vention naturally contains no such reference either since it exclusively
deals with the function of the }us cogens norms in the field of
written treaties. Thus, only future practice could indicate the extent
to which the functional scope of the Jus cogens concept could
be enlarged in order to embrace unilateral acts or actions of States.

The second effect of the introduction of the jus cogens con-

cept in the international system is that it partly transforms interna-
tional law into a vertical system of law. Such system consists of an ag-
gregate of rules which hierarchically vary, there being in it superior

137 bard
20 The Concept-of Jus Cogens

and inferior rules. The superior rules determine, inter alia, the
frame within which the inferior rules may act, while the inferior ru-
les must comply with the content of the superior rules from which they
draw their legal validity and enforceability. The hierarchy of the ru-
les of law is founded on the fact that there are various sources of law-
making within the same legal system, which differ from each other
from the point of view of their social or political significance.” Hence,
the outcome of their legal expression differs accordingly: an organ stan-
ding in a superior position of the sociopolitical pyramid of a commu-
nity produces law which is incontestably of a higher authority than
the law produced by an organ standing on a lower scale of the same
pyramid.
While most of the developed systems of law are vertical, inter-
national law may be considered as a horizontal legal system. Such
system consists of an aggregate of legal rules which are _hie-
rarchically equal and independent of each other. In other words, it
may be held that the main sources of international law as depicted in
article 38 of the Statute of the International Court of Justice, na-
mely «international convention» and «international custom» produce
rules of law which are by no means subordinated to each other.’ A
customary rule of international law has the same legal power as a rule
incorporated in a treaty, provided of course that both have the same
field of applicability ratione personnae and temporis.¥®

14. The domestic legal systems offer a good example of vertical Jegal systems :
the Constitution is the hierarchically superior legal instrument of a State, while laws
of the legislature, decrees of subordinate organs, etc., come in inferior positions
determined by the superior laws.
15. E. g. State legislature; administrative organs, individuals.
16. For the text of this article see infra, 57, Note 25.
17. For the third source which the ICJ must apply to settle international
disputes, namely «the general principles of law recognized by civilized nations»,
ed al Cl.
18. The doctrine of international law is by no means unanimous on the hori-
zontality of the international legal system. There are writers who consider that inter-
national law is a vertical legal system with custom in a hierarchically higher position
than convention. This fraction of the doctrine seems to see the convention as
identical to the contract of municipal legal systems. «Le contrat n’a de valeur
qu’en vertu de la loi (Planiol). C’est la loi qui confére au contrat sa validite, le dote
de force obligatoire, en le rangeant ala base de la pyramide des normes». (Marek,
«Contribution a létude de jus cogens en Droit international», 428). The
valitity of conventional rules lies, according to these writers, in the hierarchically
The Function of the Jus Cogens Norms 21

Furthermore, there is no hierarchy within either of the two cate-

gories in which the rules of international law are usually distinguished:
the category formed on the basis of the criterion of applicability ra -
tione personnae (general rules, particular rules, local rules)
and the category formed on the basis of the criterion of enforceability
(prohib—itive dispositive rules, permissive rules). In the first cate-
gory, a general rule, that is, a rule having a general applicability for
all, or at least the great majority of, the members of the international
community, does by no means regulate the content of particular or
local rules; these latter may validly produce law conflicting with ge-
neral rules. As for the second category, there is, by definition, no con-
nection whatsoever between a prohibitive rule and a permissive rule
since these rules function quite independently of, and therefore cannot
conflict with, each other.

highernorm pacta sunt servanda which isa customary rule of law. Bar-
beris writes in this respect : «La validité du droit conventionel repose justement sur
le norme coutumiére pacta sunt servanda. Les normes créées par con-
vention constituent un degré inférieur par rapport ala regle qui érige la coutume en
source de droit, c’est-a-dire en procédé de création des normes juridiques». («La
liberté de traiter des Etats et le jus cogens», 24). He further writes: «...il y
a une certaine analogie entre le contrat et le traité. En droit interne, la loi déter-
mine les personnes capables de s’engager par contrat, le procédé asuivre pout créer
une norme contractuelle et le contenu quelle doit avoir. En droit des gens il’y a
aussi certaines normes qui réglent les conventions bien que cette réglementation
soit assez primitive par rapport aux ordres juridiques internes. Il s‘agit de certaines
normes d’origine coutumiére fondées soit par une jurisprudence uniforme et con-
stante des tribunaux arbitraux et judiciaires, soit par une répétition générale
et constante de certaines clauses a travers un nombre des traités, et de quel-
ques principes généraux de droit...» (ibid., 25). The presumption that custom has
a higher character because treaties draw their validity from a «Grundnorm» which
is, in the case of international law, the rule pacta sunt servanda seems unju-
stified. From a historical point of view treaties preceded custom. Their legal validity
was based upon ana dh oc renewal of the promise of the contracting entities to obse-
rve the agreed conditions. The express promise applied for centuries until it gradually
disappeared and was considered as a logical condition sine quanon rather than
a customary rule of law. (see Nussbaum, «Forms and Observance of Treaties in the
Middle Age»). The condition pacta sunt servanda may still be considered a
tacit condition which has the same character as the condition of obligatoriness of
custom for States. It appears that both custom and convention equally base their
validity on an extra-legal factor which is the will of States; and that since there is
neither hierarchy in the law-making capacity of degislators» nor any evidence of a
consensus of the international community to attach a different legal significance to
the varying expressions of its will the contention of hierarchy seems purely artificial.
nw bo
The Concept of Jus Cogens

With the introduction of the jus cogens in international law,

the horizontal character of the international legal system is somewhat
modified. The J}us cogens norms are norms not permitting dero-
gation from their content by rules of particular treaties. Consequently,
the validity of the particular conventional rules depends upon their
compliance with the hierarchically higher peremptory norms, a fact
which introduces an element of verticality in the international legal
system.
The question which arises at this point is whether, apart from
the particular rules of conventional law, the superiority of the jus
cogens norms also affects particular rules of customary law. The
Vienna Convention, it is true, refers only to particular treaties. Ho-
wever, this happens because the function and definition of the jus
cogens norms in article 53 are laid down solely for the purposes
of the Convention. If the jus cogens norms are seen indepen-
dently of the Convention, then, certainly, one has to concede that they
cannot permit the valid application of customary rules of regional or
local ambit which violate their content, while particular treaties of
the same character are not permitted to do so. After all, regional or
local rules resemble in many respects particular agreements, since they
more or less represent tacit understandings between a number of Sta-
tes sharing some common interests and aiming at the satisfaction of
common goals.
The novel vertical scheme introduced in international law consists,
therefore, of the hierarchically superior norms of jus cogensgs and
the hierarchically inferior norms of particular law. All other catego-
ries of rules are not affected by the superiority of the jus cogens
norms vis-a-vis particular treaties or rules; consequently, the international
legal system remains basically horizontal with all rules of law in a li-
near formation, side by side with the jus cogens norms. Actually,
the introduction of jus cogens does not create any hierarchy bet-
ween custom and convention; both general custom and general trea-
ties are potential sources of jus cogens norms,’® and both par-
ticular treaties and particular custom are subject to the jus co gens
norms —whether customary or conventional— for the determination
of their validity. Moreover, the introduction of the jus cogens
concept does not create any hierarchy between the peremptory

AO Seana
The Function of the Jus Cogens Norms 23

norms, the prohibitive — dispositive rules and the permissive rules.2°

Finally, the introduction of the jus cogens concept does
not produce any change in the structure of the law-making agents
of the international system, since States retain their supreme autho-
rity as law-creators. Indeed, the hierarchy of rules in international
law is not due to the existence of more than one law-creating organs
of different legislative capacity, but to the common consensus of the
law-makers to attribute a specific character to certain rules; in other
words, the States commonly agree to bestow the character of jus co-
gens to some rules thus making them superior to rules contained
in particular treaties.
The consensus of the international community with respect to
jus cogens _ has actually two distinct facets: the first consists of
the consent of the individual members of the community to the admis-
sion in the family of international law of the concept of jus cogens
as one limiting the autonomy of State will. This consent may be pre-
sently inferred from the attitude of the great majority of States in re-
cent years and more specifically from the travaux prépara-
toires of the Vienna Convention; it will be further established
through future practice and, hopefully, consolidated by the definite
acceptance of the relevant conventional rules of the Vienna Convention
on the Law of Treaties through participation in that instrument.

20. Virally (Réflexions sur le jus cogens», 18) writes with respect to this
novel hierarchy: «La véritable hiérarchie qu’introduit le jus cogens—et elle
est trés nouvelle — est ...une hiérarchie entre, d’une part, les normes du droit inter-
national général, qui présentent ce caractére, et, d’autre part, les normes du droit
international particulier, régional, local, ou bilatéral». He rightly contends also,
that the position taken by a number of members of the ILC that the novel hierar-
chical structure consists of, in a decreasing order, ]us cogens norms, prohibi-
tive rules of a dispositive character and permissive rules, is erroneous because
«{lJes normes impératives, en réalité, prennent place non pas au dessus des régles
dispositives mais bien a cdté d’elles, dans le cadre du droit international général.
Eneffetle jus cogens... exprime une hiérarchie rigoureuse entre les normes
qui lui appartiennent et les normes issues des traités particuliers. En revanche,
aucune hiérarchie de cette sorte n’apparait entre les normes dujus cogens
et les autres normes du droit international général, qu’elles aient un caractere
dispositif ou supplétif.» Also, Diaconu (Contribution a2 une Etude
sur les Normes Impérativesen DroitInternational-Jus
Cogens, 82) writes: «Lejus cogens exprime une hiérarchie entre certaines
normes du droit international général et les normes de caractére particulier, quant
4 leur contenu, dans le sens que les normes de caractére particulier ne peuvent pas étre
contraires aux normes impératives, ne peuvent pas déroger a celles - civ.
24 The Concept of Jus Cogens

The other facet of the consensus of the international community

is the consent that must be granted to each and every individual norm
which, in the judgment of the members of that community, must
have the power to invalidate all agreements contrary to its content,
in other words, the character of jus cogens.”!
This consensus with its two facets is precisely the factor which
imparts to a number of rules of international law a superior character
thus compensating for the absense of a hierarchy between the law -
making agents of the international system. One may safely contend,
therefore, that by the introduction of the concept of Jus cogens,
international law has become a semi - vertical legal system. De lege
ferenda, the gradual evolution of the international structure to-
wards institutionalization cannot exclude the possibility that in the
future, international bodies composed of individual States may acquire
an independent law-making capacity higher than that of the indi-
vidual States, and enact rules superior to those legislated by the lat-
ter. Then the semi - vertical system of today may develop into a real
complex hierarchical system.

The third significant change brought about by the acceptance of

the specific function of jus cogens by the international commu-
nity is the introduction of the notion of objective illegality in the do-
main of international law. The term objective illegality means the obje-
ctive recognition of an illegality, as such, which can, therefore, be in-
voked with a view to its extinction by all members of the internatio-
nal community regardless of whether there is a particular damage su-
stained by the invoking State or States.
The international legal system has always been predominantly a
system of subjective illegality.2? States are not allowed to interfere
with an illegal act(ion) of a third State, namely an act(ion) violating
a prohibitive rule of international law, unless they have a strict legal
interest which can be affected by the outcome of the illegality. A State
is considered to have adequate legal interest to invoke an illegality of
another State when (a) a direct damage of moral or material chara-
cter is sustained by that State because of the illegal act(ion); or (b)
a violation of international law occurs which is considered acrime con -

eas Leniesiecectean a Osis :

22. Cf. Anzilotti, Cours de Droit International) 446 - 469,
493 - 505; Fitzmaurice, «The General Principles of International Law», 113 - 115,
117 - 119; Jennings, «Nullity and Effectiveness in International Law», 64 - 87:
The Function of the Jus CGCogens Norms 25

tra humanum genus, such as piracy, slave trade, etc. In the

last case, a State has «universal» jurisdiction to invoke a violation of
a rule of international law and sanction it.
The State or States affected by an illegal act(ion) are certainly
free to invoke the illegality and ask for reparations. They are equally
free not to invoke the illegality at all, in which case the violation
of a prohibitive rule of international law remains unsanctioned. An
unprotested illegality does not, of course, change the legal regime do-
minated by the violated rule or affect the latter’s content. Yet,in in-
ternational law, individual unprotested illegalities have a specific si-
gnificance which should not be underestimated. In a decentralized sy-
stem of law, legal rules are created or extinguished through the pra-
ctice of States and the proof of legal conviction carried in such practice.
Consistent violations of a legal rule which do not become subject to
a protest on the part of the affected States may therefore change the
texture of the violated prohibitive rule or even extinguish it, thus con-
verting the illegality into legality. This creation of law — through the
distortion of another rule — is the result of an implied consent of Sta-
tes vis-a-vis the content of the illegality. As Fitzmaurice concedes:

[s]ide by side, and indeed simultaneously with the negative pro-

cess of breach there is or there may be (for that is what the mat-
ter depends on) the positive process of the general adoption of
the new practice. It is this and not the breaches as such, that con-
fers validity on the new position and gives rise to a new rule of
law.*8
The fact that a State or States may be blocked from protesting
against a violation of a prohibitive rule of international law despite
their being damaged by the infringement, must be seriously considered
in the assessment of the drawbacks of the concept of subjective ille-
gality. If one takes into account the hypothetical case where a number
of States are prevented through the use of some kind of force from
protesting the illegality of a third State committed against them, then
one may understand how serious the absence of objective illegality
is for the upkeep of the rules of international law.
States were certainly aware of that drawback of the international
legal system which constituted a protective element of their soverei-
gnty. As social conscience began to grow to the detriment of absolute

23. «General Principles of International Law», 122.

26 The Concept of Jus Cogens

sovereignty, States started to view the relativity of illegality with an

unfavourable eye. The first manifestation of such reaction was the in-
troduction of the concept of non - recognition in the sphere of inter-
national legal relations. The action of non- recognition consists in
either a unilateral announcement or... the assumption of an obli-
gation of the declaration of an already existing duty not to con-
tribute by a positive act to rendering valid the results of an act
which is in itself devoid of legal force. This construction of non-
recognition is based on the view that acts contrary to internatio-
nal law are invalid and cannot become a source of legal rights for
the wrongdoer.

In actual terms, States began to refuse recognition to situations,

acts or facts which constituded violations of certain rules of interna-
tional law. The non-recognition scheme, enunciated in the Stimson do-
ctrine,™ was the first reaction of the international community against
illegalities which appeared to threaten the very substratum of peace-
ful international relations. By their position States made it clear that
they were against any act or consensual arrangement prejudicial to
the development of international exchanges and that they did not con-
sider sush act or consensual instrument as legally valid. They pledged
not to associate themselves in any way with the operation of any such
agreement and to consider it invalid and unenforceable should they
come upon it in their own relations. This opposition of the community,
through the non-recognition scheme acted as a preventive weapon a-
gainst illegalities ‘and the deterioration of the legal status of a viola-
ted rule of law.
The introduction of the jus cogens norms in international
law plays, inter alia, the same role as the non-recognition scheme
only in a more concrete and effective manner. Indeed, given that the
function of the jus cogens norms is to invalidate any rules con-
flicting with their content, the international community acquires a
strong weapon against consensual illegalities, all the more so since, in
principle at least, any member of the international community may
invoke the invalidity of an illegal treaty, refuse to execute its obliga-
tions regarding such treaty (if party to it) and proceed to measures

24. Sir Hersch Lauterpacht, at Jennings, «Nullity and Effectiveness in Interna-

tional Law», 75.
25. For the Stimson Doctrine see Chen, The International Lawof
Re CLO Sunt eOnTie
The Function of the Jus Cogens Norms 27

leading to its actual extinction from the international system. Moreo-

ver, by the introduction of the jus cogens norms the interna-
tional legal system will be enriched with rules of unequivocal content
no longer depending, as was the case with the non-recognition scheme,
on general abstract principles and subjective determinations of the
community interests.
As a consequence of the introduction of jus cogens, inter-
national law has been empowered with the concept of objective ille-
gality with respect, at least, to the jus cogens norms and their
functional scope. It should be expected that this concept will succes-
fully contribute to the protection of those rules of law which are con-
sidered indispensable for the smooth function of the international le-
gal system and for the well-being of the international society, and which
would therefore not be hampered by individualistic motives and short-
run interests of particular States.

In terminating our theoretical discussion on the function of the

jus cogens norms the following remarks may be made: First of
all, the introduction of the jus cogens concept in the realm of
international relations entails, as already stressed, a significant inter-
ference of law with a field which was previously dominated by the a-
bsolute will of States, namely the field of international agreements,
The jus cogens concept considerably limits the notion of State
sovereignty and transposes its boundaries to a new inward line. It goes
without saying that the consequences, direct or indirect, of such tran-
sposition, as well as the exact location of the new confines of the no-
tion of sovereignty may not as yet be fully assessed. Only future pra-
ctice in matters of the jus cogens function and the consequences
that the latter might have in other fields of the international legal re-
lations, will safely show the actual debilitating results of the jus co-
gens function upon the notion of sovereignty.
Furthermore, the introduction of the concept of jus cogens
indicates the common acceptance of States that apart from their par-
ticular or evident interests, there are some wider concerns which call for
protection. The fact that States are not able anymore to contract- out
of all rules of law evidences that they no longer consider that the will of
two or even more members of the international community isthe exclu-
sive factor in the determination of the law to govern the relations be-
tween them. Considerations above particular State interests can now
play a decisive role through the prohibition of derogation from per-
28 The Concept of Jus Cogens

tinent jus cogens norms enacted especially to protect such con-

siderations. ;
These considerations may be classified into various categorie g 26

First, they may refer to interests of the members of the international

community, other than the prospective or actual parties to an illegal
treaty, which may be hampered by the conclusion and operation of
the latter. Certainly, the main maxim of international law regarding
the effects of a treaty is that it is binding solely upon the parties to
it. States or international organizations other than contracting par-
ties will look upon any agreement asa res inter alios acta
which creates neither rights nor obligations to them according to the
well known principle pacta tertiis nec nocent nec pro-
sun t.?? Yet, this general rule has a relative value, both from the legal
and the political point of view. Legally speaking, a treaty, though neither
harming nor favouring a non-party to it, may nevertheless have con-
sequences upon the status of general law that it violates through its
provisions.”*> If the international community remains silent with re-
spect to recurrent violations of a general rule of law, the legal basis
of that rule will certainly be affected. From the political point of view,
a treaty violating a general rule of law, though not directly affecting
but the parties to it, may always produce some factual situations re-
sulting in political implications that would threaten the infrastructure
upon which the current international peaceful exchanges rest.”
Secondly, the considerations in question may refer to the real in-
terests of one or all of the prospective parties to an illegal trraty. In-
deed, there may be cases where States proceed to the conclusion of
agreements contrary to their long-run interests, either because they
prefer to sacrifice such interests to short-run ones or because a pres-
sure is exerted upon their presumably free will. The law, therefore,
may protect the real interests of individual States through the wea-
pon of prohibition of derogation and the sanction of invalidity.

26 Cf. infra, 44 et seq.

27. Detter, Essays on the Law.of Treaties, 101.
28. Rozakis, «Treaties and Third States: A Study in the Reinforcement of
the Consensual Standards in International Law», 25.
29. The example of an offensive alliance against a State seems tobe quite illu-
strative in this respect. The alliance does by no means threaten the international
community at large but solely the member against which it turns. Yet, in this inter-
dependent world the creation of sources of irritation may have unexpected implica-
tions for the peace and security of the whole international community . For this reason
the concern of third States may be expressed ]e gall y through the prohibition of
derogation from the norm of the use of force.
The Function of the Jus Cogens Norms 29

Thirdly, the considerations may refer to the protection of entities

which are unable to protect thenselves from the omnipotence of Sta-
tes. As an example one should mention the individuals which may suf-
fer from agreements of States concerning their status, well-being and
freedom as well as the groups of individuals which, because not orga-
nized as a State, are unable to set in motion the machineries of pro-
tection that States may use against agreements harmful to their rights.
All the above considerations (which do not, certainly, exhaust
the matter) constitute social concerns to be served by the concept of
jus cogens. They have apparently come into life almost imper-
ceptibly, and represent the outcome of a long process of changes which
have been taking place since approximately the late decades of the last
century. Indeed, a retrospective look at the history of international
relations — and the repercussions that these relations had upon the form-
ulation of legal rules — bears witness to an evergrowing interdependence
of States which started to become evident towards the end of the
century. This interdependence seems to be on the basis of all changes
that have occurred ever since. Its causes are well known: the technolo-
gical development has improved the communication between people
and increased their needs. At the same time, it has offered the pos-
sibility of widening the horizons of education thus changing the old
attitudes and mentalities. With time, these facts resulted in the crea-
tion of complex relations between States which have been rapidly
multiplying, following the constant increase of the human needs and
the number of new States.
The multiplication of international relations has brought to the
surface the need of an international order. Needless to say, the impact
of the two great wars upon the realization of that need was immense.
The international community has recognized that without a mini-
mum, at least, of international order, neither the progress of civiliza-
tion in all its aspects, nor the maintenance of peace so indispensable
to any human endeavour can be assured.
The need of an international order is being gradually answered
by a growing institutionalization of the world community through
international organizations, international conferences, specialized or-
gans to deal with fundamental questions of common interest etc. The
introduction of the jus cogens concept constitutes as well a ma-
nifestation of that institutionalization of the international commu-
nity. It undoubtedly represents, despite its present drawbacks and
ambiguities, a step forward towards a more centralized world order,
30 The Concept of Jus Cogens

in which the predominant interests will no longer be the individua-

listic, egocentric aspirations of particular States, but those social con-
siderations which can safeguard the normal and peaceful function of
the enlarged international community.

2. The Temporal Scope of the Jus Cogens Function.

The element of time is undoubtedly intertwined with the appli-

cation of legal norms as one of the determining factors of their vali-
dity and enforceability upon the subjects of a legal system. A norm
always has a temporal scope, namely a time span within which it fun-
ctions and is effective. Usually, this time span starts at the time that
the norm comes into force by an authoritative command of the legi-
slator, and it ceases at the time that it becomes extinguished for one
reason or another. There are, however, cases when a norm produces
legal effects beyond the time boundaries delimited by the events of
its birth and death. In fact, a norm may, under special circumstances,
be valid and enforceable with respect to legal or factual situations
which had occurred before its coming into force, in other words apply
to such situations retroactively.
The retroactive application of legal norms which is, 1t must be
stressed, the exception in a sound legal system, is often associated
in the municipal legal orders with the jus cogens_ norms. The
rationale behind this is that a legal order cannot accept that when a
rule of public policy emerges some legal situations contrary to that
rule will be extinguished while some others, equally contrary, will not,
only because the latter happened to be established by an agreement
which had ended prior to the emergence of the jus cogens norm.
If some legal situations contrary to, and existing prior to the coming
into force of, the jus cogens norm are left intact, the ratio
legis of the latter which is to protect social values and interestss
would be seriously infringed.*°
The question which therefore arises is whether the Vienna Con-
vention adopted that position by providing for the retroactive appli-
cation of the }us cogens norms so as to assist the establishment
of a uniform legal and social order in which the peremptory norms would
upon their emergence retroactively efface all acts and situations con-
trary to their content. In order for that question to be answered

300 Ini ras 129% ts ed:

The Function of the Jus Cogens Norms 84

two separate problems must be examined. The first relates to the tem-
poral application of the jus cogens norms, as such, for the
purposes of the Vienna Convention. In other words, it should be exa-
mined whether the Convention establishes the retroactive application
of the jus cogens norms or not. In practical terms, the question
seems to be whether a Jus cogens norm may have effects upon
any instrument, and its consequences, existing prior to its emergence,
by virtually substituting the legal regime created by it to the legal
regime created by any such instrument .*}
The second problem relates to the position of the Vienna Conven-
tion with respect to the temporal application of its own provisions on
jus cogens. The question of the retroactive or non-retroactive
application of the Conyention’s provisions is extremely important since
that instrument is for the time being the only source which governs
the function of the ]us cogens norms, and constitutes therefore
the sole legal standpoint from which these norms derive thew validity
as to their specific power. In consequence, the temporal application,
of its provisions could eventually determine whether the specific fun-
ction of jus cogens may apply with respect to treaties. concluded
before the coming into force of the Convention, Otherwise, if the Vienna
Convention applies only to treaties concluded at a time posterior to
its coming into force, then the }us cogens norms, even if having,
as such, retroactive effects, cannot apply to treaties' which emerged
before the coming into force of the Convention;* unless, of course,

31. At this point one must distinguish two different issues : the issue of the retro-
active application of the j usco gens norms, which is examined in the present se-
ction from the issue of the retroactive invalidity which is the sanction carried’by a
jus eogens norm against any violation of its substative content. That second
issue will be examined under a different caption of this study, Ibid.
32. An example may better clarify the question of temporal application : The
rule on the prohibition of the use of force becomes hypothetically a jus cogens
norm in the year 1973, after the, hypothetical again, coming into force of the Vienna’
Cenvention in 1972. At the time that this rule becomes a jus cogens norm
an agressive pact, which was concluded between States A and B in 1953, is still
in force. The question which arises is whether the newly emerged norm of jus
cogens would extinguish that agreement from 1935, namely from the time of
its conelusion. If a jus eogens norm does not have rectoactive effect there
is no question of such extinction. But if it has a retroactive effeet then one must
see the extent of its retroactivity, namely whether the rule is retroactive (a)
insofar as its specific content is concerned (prohibition of the use of force) and
(b) insofar as its special functioning character is concerned (its power to prohibit
32 ~ 7 > ‘The Concept of Jus Cogens

it could be'maintained that the special function of the Jus cogens

norms was admitted by international law at. a time prior to the coming
into force’ of the Convention and contemporary to the emergence of
those treaties. ! é
:

A. The Non-Retroactivity of the Jus Cogens Norms and the Comp-

_ lementing Article 64.

The position of the drafters of the Vienna Convention with respect

to the retroactivity of the norms of jus cogens is not very clear-
ly discerned by the student of the preparatory work. However, de -
spite the apparent confusion of the issues of retroactivity (retroacti-
vity of the sanction, retroactivity of the norms, retroactivity of the
rules contained in articles 53 and 64), there is, nevertheless, some room
left for a number of conclusions. In its final commentary to draft ar-
ticle 50, the International Law Commission dealt with the question
of retroactivity in its following statement:

The... matter is the non-retroactive character of the rule of the

present article [50]. The article has to be read in conjunction with
article 61 (Emergence of a new rule of jus cogens) and
in the view .of the Commission, there is no question of the pre-
sent article [50] having retroactive effects. It concerns cases where
“fa treaty is ‘void at the .time of its conelusion by
reason of the fact that its provisions are in conflict with an al -
ready existing rule of jus cogens. The treaty is wholly void
“because its actual conclusion conflicts with a peremptory norm
of general international law from which no States may derogate
even by riutual consent. Article 64 !present article 641, on the
other hand, concerns cases where a treaty, valid when concluded,

contrary agrreements and invalidate them). In other words the retroactivity of

the norms in the case of jus cogens should cover not only the content
of the rule but also its special function. If the norm has a retroactive effect -as to
its content but net as to its function then that norm cannot replace particular
treaty rules stipulated at a time prior to the emergence of the jus cogens
character of that norm. For there is no evidence, that in 1935 the concept of jus
cogens was accepted at all in international law as a concept limiting the contract-
ual freedom of the States ; it is the Vienna Convention which introduces, through
its provisions and the circumstances ofits drafting such functioning capacity in the
domain of positive law.
The Function of the Jus Cogens Norms 33

becomes void and terminates by reason of the subsequent esta-

blishment of a new rule of jus cogens with which its pro-
visions are in conflict. The words «becomes void and ter-
minates» make it quite clear, the Commission considered,
that the emergence of a new rule of jus cogens is not to
have retroactive effects on the validity of a treaty. The invali-
dity is to attach only as from the time of the establishment of
the new rule of jus cogens. The non-retroactive character
of the rules in articles 50 and 61 is further underlined in article
67, paragraph 2 [present article 71, paragraph 2] of which pro-
vides in the most express manner that the termination of
a treaty as a result of the emergence of a new rule of jus co-
gens is not to have retroactive effects.

Indeed, there is an obvious confusion of different issues of retroa-

ctivity in the above statement.*4 Yet the intended non-retroactive cha-
racter of the }us Ccogens norms may beinferred from the phrase «the
emergence of a new rule of Jus cogens is not to have retroa-
ctive effects on the validity of a treaty». This intention of the Com-
mission is better stated in paragraph 4 of its commentary to draft ar-
ticle 64:

In paragraph (6) of its commentarry to article 50 the Commission

has already emphasized that a rule of jus cogens
doesnot have retroactive effects and does not
deprive any existing treaty of its validity
prior to the establishment of that rule as
a rule of jus cogens... The point is further underli-
ned by article 67 which limits the consequences of a treaty in
termination by reason of invalidity attaching to it under the pre-

33. Commentary, 68. (Emphasis supplied).

34. Indeed, the reader may become confused by the undue intermingling of
the issues in the above cited commentary of the Commission. It begins by referring
to the «non - retroactive character of the rule of the present article» and by stating,
furthermore, that «there is no question of the present article [50] having retroactive
effects» which means that the commands of that article («A treaty is void...») does
not apply to treaties before the coming into force of the Convention, which is one
issue, to end up «in the emergence of a new rule of jus cogens» as not having
retroactive invalidating effects upon a treaty for the time prior to its emergence,
which is completely another issue.
34 The Concept of Jus Cogens

sent article to the period after the establishment of the rule

of: jas, .¢ og e nis,”
Beyond these statements, the preparatory work does not throw
much light to the position of the drafters with respect to the problem
of the retroactivity of the jus cogens norms. Yet, an opposition
of the States which participated in the Conference to such retroacti-
vity (and, consequently, their agreement with the position of the In-
ternational Law Commision) may be inferred from their general atti-
tude towards the question of retroactivity of rules in international law.
Indeed, in the discussions relevant to the retroactivity of treaties and
the rules contained therein, the general trend was to follow for all ca-
ses unexceptionally the traditional patterns of the international legal
system, namely the rejection ‘of the retroactive application of the ru-
les of law.%6
The fact that the parties to the Vienna Conference agreed on the
non-retroactive character of the jus cogens norms may create the
misconception that because of the thus established non-retroactive
character of these norms, the «protective» function of the latter is de-
feated: if the jus cogens norms are not retroactive, then, pre-
sumably, all treaties concluded before the emergence of such norms
and contrary to their content may continue to operate in an vnhin-
dered way in the international system. Such conclusion, however, would
be erroneous; although the non-retroactivity of the jus cogens
norms means that they do not extinguish a treaty, and its consequences,
back from the time of its conclusion, if such treaty was concluded be-
fore the emergence of a peremptory norm, nevertheless the existence

35. Commentary, 81 (Emphasis added with respect to the phrase «that

a rule...») ;
36. See UNCLT Official Records, irst Session, 30th meeting of the
Committee of the Whole; also 2nd Session, 13th Plenary meeting. Generaly spea-
king, it appears that international law does not accept retroactivity of either
customary or conventional rules but with very few exceptions (e.g.the Nuremberg
principles). With respect to the second category of rules the ICJ has confirmed
their non - retroactive’ character through the Ambatielos case [preliminary
objections, I.C.J. Reports, 40 (1952)]. For a study of the question of
retroactivity in international law see, inter alia, Bindschedler - Robert, «De
la retroactivité en Droit international public»; Tavernier, Recherches sur
YApplication dans le Temps des Actes et des Régles en
Droit International:Public, 23-44, 114 et seq. For the matter of
the time - element in the Vienna Convention, see Rosenne, «The Temporal Appli-
cation of the Vienna Convention on the Law of Treaties».
The Function of the Jus Cogens Norms 35

of the invalidating capacity of the rules of articles 53 and 64 will have

as an effect to extinguish all treaties conflicting with such norm at
the time of their conclusion, or, in the case of an emergence of a new
peremptory norm, upon the time that the conflict
takes place. |
More specifically, the fact that a norm of jus cogens does
not have a retroactive power simply means that it cannot go back to
a time prior to its emergence (namely to the time of the conclusion
of a treaty whose provisions conflict with it) in order to retroactively
govern the field covered by that instrument; it does not mean that it
does not extinguish any rule of a conventional character from the
time that such rule starts to conflict with it. In other words, a jus
c¢ogens norm leaves any treaty (or any of its provisions) conflicting
with it intact for the time before its emergence, but it invalidates it
from the time that the actual conflict occurs (upon its emergence).
Thus, the legal order is satisfied that as longasa J}us cogens norm
exists no contrary legal regime may exist simultaneously with that norm.
The extinction of all treaties contrary toa jus cogens norm
is achieved through the legal assistance of article 64 which comple-
ments article 53 of the Convention. Article 53 alone does not cover all
conceivable violations of jus cCogens_ norms. As it may be re-
called, its introductory sentence stipulates that «/a]treaty is void if,
at the time of its conclusion, it conflicts with a peremptory norm of
general international law». The phrase «at the time of its conclusion»
automatically limits the scope of the specific function of the jus co-
gens norms, namely the sanction of invalidity, to treaties conflicting
with such norm and concluded at atime subsequent to the esta-
blishment of the norm. The arrangement of article 53 seems reasona-
ble and just under the usual legal standards according to which the
legality or illegality of a deed is judged on the basis of the rules exi-
sting at the time that the deed takes place. IH, therefore, no perem-
ptory norm of general international law exists prohibiting the conclu-
sion of a treaty at the time that it is concluded, that treaty is legally
intact and valid.
However, the jus cogens_ norms have the particular fun-
ction not to permit any derogation from their content, or the paral-
lel existence of other rules of law having the same field of applica-
bility ratione materiae and personnae. Nevertheless,
article 53 seems to imply that such normative dualisn is possible since
it lays down that a treaty is void only when it conflicts with a jus
36 The Concept of Jus Cogens

cogens norm at the time of its conclusion. But what is to happen

if a treaty which contains clauses conflicting with a jus cogens
norm was concluded prior to the emergence of that norm? Does it re-
main valid even after the latter’s emergence?
If article 53 were the sole article on the concept of Jus cogens
such inference would have been possible. However, the drafting bo-
dies of the Vienna Convention, aware cf this fact, and unwilling to
defeat the purpose of the concept embodied in article 53, adopted ar-
ticle 64 which reads in its final form:

If a new peremptory norm of general international law emerges,

any existing treaty which is in conflict with that norm becomes
void and terminates.??

In its commentary to draft article 61 the International Law Com-

mission made the following remarks:

The rule formulated in this article is the logical corollary of the

rule in article 50... Article 50, as explained in the commentary
to it, is based upon the hypothesis that in international law to-
day there are a certain number of fundamental rules of interna-
tional public order from which no State may derogate even by
agreement with another State. Manifestly, if a new rule of that
character —a new rule of jus cogens—emerges, its effect
must be to render void not only future but existing treaties. This
follows from the fact that a rule of jus cogens igs an over-
riding rule depriving any act or situation which is in conflict with
it of legality. An example would be former treaties regulating the
slave trade, the performance of which, later ceased to be compa-
tible with international law owing to the general recognition of
the total illegality of all forms of slavery.

The decision of the International Law Commission to draft an

independent article to cover solely the case of treaties which become
illegal after their conclusion due to the emergence of a jus cogens
norm, was based on its determination not to provide the same sanction

37. The corresponding article 61 read :«If a new peremptory norm of general
international law of the kind referred to in article 50 is established, any existing
treaty which is in conflict with that norm becomes void ane terminates».
38. Commentary,
80. ;
The Function of the: Jus CGogens Norms 37

for both categories of illegal treaties. In other words, while fora treaty
conflicting with a peremptory norm at the time of its conclusion the
sanction should be severe since the parties to such treaty knowingly
violate that norm, for a treaty which becomes illegal due to the subse-
quent emergence of a new peremptory norm the sanction should be
less severe since the treaty when concluded was perfectly valid. The
Commission therefore decided that the ab initio illegality of the
first category must-be sanctioned with invalidity while the a poste -
riori illegality of the second must be sanctioned only with termina-
tion.°9
The arrangement proposed by the Commission may indeed sa-
feguard the normal function of the jus cogens norms. Moreo-
ver, it complies with the intertemporal requirements of law which seem
to demand a continuous legality of an act or right from the time of
its birth to the time of its extinction. That requirement has been
classically formulated by Max Huber in his award on the Las P.al-
mas Island-~ case where he stated:

As regards the question which of different legal systems prevai-

ling at successive periods is to be applied in a particular case (the
so-called intertemporal law), a distinction must be made between
the creation of rights and the existence of rights. The same prin-
ciple which subjects the act creative of a right to the law in force
at the time the right arises, demands that the existence of the right,
in other words its continued manifestation, shall follow the con-
ditions required by the evolution of law.?°

However, a number of States in the Vienna Conference, although

not disputing the necessity of uniformity of the law in a system do-
minated by imperative rules, were critical of what they considered as
an element of retribution in the rationale of the drafting of two inde-
pendent articles.41 They observed that draft article 50 penalized the
States which committed the illegality to conclude a treaty contrary
toa jus cogens norm, a fact that gave it the character of a rule

Bho hidie ely VAS Mii,

40. United States-The Netherlands, Tribunal of the Permanent
Court of Arbitration (1928). Reports of the International] Arbitral
Awards II, 829; cited at Briggs, The Law of Nations, 243.
41. UNCLT Official Records, (rst Session, 52nd meeting of the Com-
mitte of the Whole. =
38 The, Concept of Jus Cogens

of penal law. That was one of the reasons — though not the most
important — for which some States in the Conference proposed the
modification of draft article 61 and its unification with draft article
50.42 Their proposals were not, however, effective: the majority of
States voted in favour of the retention of draft article 61 as a se-
parate article of the Vienna Convention.*? In order, moreover, to bet-
ter distinguish the scope of application ratione temporis of
draft article 50 from that of draft article 61, the States in the Conference
adopted part of an amendment to draft article 50, submitted by the
United States, which added to the text of that article the words «at
the time of its conclusion»,44 which were previously contained only in
the final commentary of the International Law Commission.*®
In any event, leaving aside this incidental reference to the re-
tributive character of article 53, the conclusion which may be safely
drawn from the examination of the time element in the two substantive
articles on the concept of jus cogens, is that their combined a-
ction can effectively eliminate any legal regimes contrary to the con-
tent of a jus cogens_ norm; in consequence, both the intended
legal uniformity and the avoidance of a legal dualism, dictated by the
ratio legis of the jus cogens norms, may be attained by
the application of the rules of these two articles —each in the due
material circumstances — and thus minimize the harmful effects that
such contrary regimes may have on the international community.*®

B. The Non- Retroactivity of the Vienna Convention.

Another «temporal» issue which is of a primary importance to the

proper function of the }us cogens norms governed by the Vienna

42. See, also, infra, 139.

AOL bade
44. A/CONF. 39/C. 1/L. 302. The part of the amendment which proposed the
inclusion of the words «at the time of its conclusion» was adopted by 43 votes to 27
with 12 abstentions. (UNCLT Official Records, irst Session, 57th meet-
ing of the Committee of the Whole.)
45. Commentary, 68. The difference of treatment applying to cases fal-
ling under article 53 and 64 will be discussed in extenso in a later chapter of
this study (infra,109 et seq.).
46. We say «minimize» because all acts or situations created by an illegal treaty
prior to its conflict with a subsequent j usco gens norm are not affected by article
6%. For an extensive discussion on the matter seeinfra,146 et seq.
The Function of the Jus Cogens Norms 39

Convention*’ is the retroactive or non-retroactive character of the

rules of the latter. More specifically, the question which arises in this
respect is whether the provisions of articles 53 and 64 apply to trea-
ties concluded at a time prior to the coming into force of the Conven-
tion or whether they solely apply to treaties to be concluded after the
coming into force of that instrument.
The answer to that question is unequivocally given by article 4
of the Vienna Convention which reads:
Non-Retroactivity of the Present Conven-
tion.
Without prejudice to the application of any rules set forth in the
present Convention to which treaties would be subject under in-
ternational law independently of the Convention, the Convention
applies only to treaties which are concluded by States after the
entry into force of the present Convention with regard to such
States.

Article 4 was originally drafted by the Conference (and not by

the Commission) following the insistence of a large number of repre-
sentatives to secure through a separate article that none of the pro-
visions of the Convention would have any retroactive effect.46 This
was due to the fact that they had not been too satisfied by a provi-
sion already contained in one of the draft articles prepared by the
Commission (draft article 24, present article 28) and which had as
follows:
Unless a different intention appears from the treaty or is other-
wise established, its provisions do not bind a party in relation to
any act or fact which took place or any situation which ceased
to exist hefore the date of the entry into force of the treaty with
respect to that party.

Article 4 was apparently drafted in order to explicitly exclude the

possibility that some provisions of the Convention, as, for instance,
articles 53 and 64, might be considered as having a retroactive applica-
tion. Indeed, draft article 24 allowed (as final article 28 also does) for

47. Supra, 32.

48. UNCLT Official Records, 2nd Session, 101rst - 105th meeting
of the Committee of the Whole; also, 30th Plenary meeting.
40 The Concept of Jus Cogens

an exception to the retroactive application of treaties by stipulating

that a treaty’s provision might have retroactive effects if such an
intention appeared from the treaty or was otherwise established. Ho-
wever, the States in the Conference wanted to make sure that the
Vienna Convention would not fall under that exception. Instead oflea-
ving, therefore, the matter to be settled through the future application
of the Convention, they adopted article 4 especially to that effect.
The Swedish representative made that point clear through the follo-
wing statement:

[I]t would be wise to establish expressly that the present conven-

tion qua convention, did not operate retroactively. Sweden had
stated during the discussion on article 62 bis [on the proce-
dure of settlement of disputes] that that article and the machi-
nery it provided did not apply retroactively to old treaties or
disputes. Similarly, other articles of the Convention did not, as
a matter of treaty law, apply retroactively to treaties concluded
by States before the present convention had entered into force
for them. ;
It was generally agreed that most of the contents of the present
convention were merely expressive of rules which existed under
customary international law. Those rules obviously could be in-
voked as custom without any reference to the present convention.
But to the limited extent that the convention laid down rules that
were not rules of customary international law, those rules could
not be so invoked. That position could be regarded as already
made clear from the general rule contained in article 24 of the
convention. It might, nevertheless, be safer to make the point ex-
plicit in one of the final clauses.

The fact is that the rules contained in the substantive provisions

on jus cogens can hardly be deemed as belonging to the cate-
gory of rules of customary law that the Swedish representative men-
tioned. On the contrary, it seems that in the absence of substantial
evidence, the two substantive articles (53 and 64) belong to the ca-
tegory of progressive development of law. Consequently, one might as-

49. UNGLT Official Documents,

193.
50. UNCLT Official Records, 2nd Session, 101rst meeting of the
Committee of the Whole.
The Function of the Jus Cogens Norms 4

sume that the scheme of the non-retroactivity of the Convention ap

plying equally to all its rules, is to affect the function of the jus
c€ogens norms which base their specific power upon the text of that
instrument. More specifically, all treaties conflicting with a jus co-
gens norm either at the time of their conclusion or at a time poste-
rior to it, would not be caught by its sanctioning power if the con-
flict between them and the norm occurred at a time before the co-
ming into force of the Convention and its relevant provisions on jus
cogens.
In effect, the lacuna which is created by the non-retroactive
application of the rules of the Vienna Convention concerns the time
before the introduction of the concept of jus cogens in inter-
national law. The time of that introduction may be considered as being
the time when sufficient evidence was supplied to substantiate a good
faith claim that the concept constitutes part of positive international
law; admittedly, that time must be fixed at a period earlier than the
coming into force of the Vienna Convention and notably at the time
of the Vienna Conference or the adoption of the relevant articles. In
consequence all treaties conflicting with a jus cogens norm after
the introduction of the concept in positive international law are caught
by the rule of customary law that prohibits violations of a jus co-
gens norm, outside the arrangement of the Convention (which is not
in force) and independent of it. Only treaties which came into force
before the introduction of the concept of jus cogens may be
left untouched (both by the Convention when it comes into force and
by customary law) thanks to the provision of the non-retroactivity
under article 4 of the Convention. ,
However, beyond the substantive rules on jus cogens, the
Convention provides a number of articles which assist the implemen-
tation of the sanctions provided by the substantive articles.*! These
articles, which are either procedural or complementary, belong to the
system of the Convention and they are not likely to ever become part
of customary law on account of their technical nature. So, even if the
introduction of the concept of jus cogens_ in international law
may be fixed at a time prior to the coming into force of the Conven-
tion, catching, as a consequence, illegal treaties which were concluded
sometime earlier than that, the implementing articles cannot assist,
in the form of customary rules, the attainment of the sanction carried

54. Seeinira,95 et seq:

42 . The Concept of Jus Cogens

ina jus cogens norm. Given moreover the paucity of customary

law in procedural and technical rules,it is conceivable that the non-
retroactivity scheme under article 4 of the Convention will have as
an effect to leave untouched (due to lack of effective machinery) il-
legal treaties which were concluded before the coming into force of
the Convention but after the introduction of the concept of Jus co-
gens in international law.
Are we therefore to conclude that because of the rule of article 4
the overall system of the jus cogens norms is seriously threa-
tened? Clearly, this would be an exaggeration. Most probably, the non-
retroactive application of the rules of the Convention does not mean
that treaties which continue to be in force after the Convention’s co-
ming into force will be left untouched by its provisions for the fu-
ture, As the International Law Commission conceded, when it discus-
sed that problem in the context of the non-retroactivity of treaties in
the sphere of the Vienna Cinvention,
if... an act or situation which took place or arose prior to the
entry into force of a treaty continues to occur or exist after the
treaty has come into force, it will be caught by the provisions of
the treaty. The non-retroactivity principle cannot be infringed
by applyimg a treaty to matters that occur or exist when the tre-
aty is in force, even if they first began at an earlier date. Thus,
while the European Commission of Human Rights has not consi-
dered itself competent to inquire into the propriety of legislative,
administrative or judicial acts completed and made final before
the entry into force of the European Convention, it has assumed
jurisdiction where there were fresh proceedings or recurring ap-
plications of those acts after the Convention was in force.™

It should be expected that the future parties to the Vienna Con-

vention will feel the obligation to adjust their conventional relations
to the requirements of the provisions of that Convention. After all,
the dictum _ of the International Law Commission, namely that
the non-retroactive character of a treaty does not mean that it may
allow the unhindered continuance of contrary acts or situations after
its coming into force, is firmly based upon reasonableness and good
faith. Particularly with the case of the provisions on the jus co-
gens concept, a continuance in operation of illegal treaties which

O27 CO DW Men
eae ny; ne ae
 -

The Function of the Jus Cogens Norms 43

were concluded before the coming into force of the Convention would
virtually result in defeating the spirit and purposes of the Convention.
How could the international order tolerate the legal dualism which
would be created by the continuance in force of treaties violating a
jus cogens norm, when such dualism is by definition excluded
with respect to such norms?
In concluding on the question of the temporal element in the fun-
ction of the }us cogens norms, it appears that for the purposes
of the Convention (and independently of what may happen in the
field of customary international law) all treaties in force between the
parties to the Vienna Convention fall within the scope of that Conven-
tion upon its coming into force and are caught by its provisions. Conse-
quently, articles 53 and 64 will apply to all illegal treaties in force at
that time (the time of the Convention’s coming into force) and san-
ction them accordingly. Both articles leave unaffected such treaties
for the time prior to the coming into force of the Vienna Convention;
for that time such treaties may be either sanctioned by customary in-
ternational law, or left untouched due to lack of effective machinery
to that effect. In any event, what is of a primordial significance for
the international legal order is that, at least upon the coming into force
of the Vienna Convention, all acts and situations violating a jus co-
gens norm at that time will be sanctioned by its provisions; a thing
which, as such, secures the normal function of the Convention and the
fulfilment of its ratio legis.
 CHAPTER II

THE IDENTIFICATION OF THE JUS COGENS NORMS

The fact that the jus cogens norms are empowered by the
letter of article 53 with the capacity to invalidate particular treaties
conflicting with their content makes their ‘clear and unambiguous iden-
tification a primary necessity. Indeed, the introduction of the jus
cogens concept in the decentralized system of international law
may seriously threaten the security of international legal relations un-
less the norms which have an imperative character are easily discer-
nible and known to all the members of the international community.
States should know at all times the exact limits of the autonomy of
their will so as not to attempt to contract out of the jus cogens
norms and in order to be able to invoke the illegality of a treaty vio-
lating such norm as well as to protect their agreements from unfoun-
ded allegations of illegality. For these obvious reasons, article 53 of
the Vienna Convention provides a test of identification of the jus
c¢ogens norms which will be analyzed in detail in the following pa-
ges.

1. The Final Text and the Preparatory Work.

The second sentence of article 53 deals, inter alia, with the

identification of the jus cogens norms. It reads:

For the purposes of the present Convention, a peremptory norm

of general international law is a norm accepted and recognized
by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modi-
fied only by a subsequent norm of general international law ha-
ving the same character.
The Identification of the Jus Cogens Norms 45

The definition which is given in the above sentence of article 53

is rather a practical test of identification of the }us cogens norms
than a really scientific delimitation. Indeed, as a definition it is incom-
plete: in point of fact it is a tautology. It informs the interested party
that a peremptory norm of general international law is a norm from
which no derogation is permitted. As a test of identification it seems,
in principle at least, to be adequate: it provides for a number of con-
ditions which must be satisfied in order for a rule of international law
to be considered as a Jus cCogens norm.
The definition of the jus cogens norms, or, better, the test
of their identification, does not apparently extend to the last phrase
of the second sentence of article 53. It would appear that the defining
elements, constituting at the same time the basic criteria of identifi-
cation, are only two. The first is that a norm of jus cogens cha-
racter is a norm of general international law. The second defining ele-
ment is that a norm of jus cogens is a norm (of general inter-
national law) which has been accepted and recognized by the interna-
tional community of States as a whole as a norm from which no dero-
gation is permitted. These two elements apparently constitute the sole
criteria by which the character of a rule is determined.
The definition of the second sentence of article 53 would there-
fore seem to conclude with the words «...from which no derogation
is permitted...» The question which thus arises is what represents in
that case the last phrase of the second sentence «...which can be mo-
dified only by a subsequent norm of general international law having
the same character». This phrase is directly connected with the first
part of the second sentence of article 53 through the connecting par-
ticle «and». As such, this connection creates the, impression that the
last phrase was intended to be part of the definition — as a third cri-
terion in the test of identification.
If one accepts that the last phrase belongs to the definition of the
jus cogens norms, then the whole process of identification be-
comes hampered. For how could one proceed to the determination of
the character of anorm of jus cogens at the time that
it still functions in the international system
on the basis of a condition which refers to the way of its modifica-
tion? How could one know a priori the way that a norm will chan-
ge, if ever, while it is still alive and well? Indeed, what the last phrase
of article 53 requires, if considered as a third element of identification,
is that in examining a rule of international law in order to determine
46 The Concept of Jus Cogens

whether it is a jus cogens norm, States should inter alia

examine how that norm may be modified when the time of its modi-
fication comes. Such requirement could obviously change the ordinary
task of the interpretation and search of the State practice, dictated
by the first two tests, into an adventure and a sheer prophesy.
It is beyond doubt that the drafters of the Convention never
thought of considering the last phrase of the second sentence of ar-
ticle 53 as part of the test of identification, namely as a third requi-
rement to be fulfilled by any jus cogens norm. Most probably,
we are faced here with a drafting discrepancy which passed unnoticed.
Actually, the last phrase of the second sentence was inherited from
draft article 50 of the International Law Conmission which consisted
only of one sentence containing the executory part of the provision
(presently the first sentence of article 53) and a part on the method
of modification of the jus cogens norms connected between them,
as it was reasonable, with the particle «and».! The text of the second
sentence as it appears in the final article was not contained in that
draft. When the Conference added between the executory part of the
article and that on modification the sentence which contained the tests
of identification it neglected to duly separate the phrase of modifica-
tion from the phrase containing the tests by drafting two distinct
sentences and eliminating the connecting particle «and».
The most probable interpretation is therefore that the test of iden-
tification is to be found in the first two phrases of the second sentence
of article 53. Thése two phrases will be exhaustively analyzed in the ©
following pages while the last phrase of the second sentence will be
examined in a separate chapter on modification. Before proceeding,
however, to the examination of the test proper, a brief analysis of its
history should be undertaken in order to clarify some positions of
the law-makers vis-a-vis the concept of jus cogens in interna-
tional law.

The preparatory work of the Vienna Convention is quite illustra-

tive of the spirit that prevailed throughout the drafting period of the
relevant Jus cogens_ articles with regard to the delimitation of
the concept of peremptory norms for the purposes of the Convention.

1. The text of draft article 50 read in the relevant part : «A treaty is void if it
conflicts with a peremptory norm... from which no derogation is permitted and
which can be modified...» (Emphasis added).
The Identification of the Jus Cogens Norms 4?

The concept of jus cogens_ was of course known to the great

majority of the members of the International Law Commission and
the representatives of States both in the Sixth Committee of the U-
nited Nations and the Vienna Conference. For most of them, the con-
cept of Jus c€ogens—or some corresponding notion having the
same function — was already an institution of their domestic private
law. There was, therefore, a common ground upon which an under-
standing could in principle stand.
However, that common ground did not considerably assist the
drafting of the provisions on jus cogens and, more specifically,
the establishment of an adequeate definition of the peremptory norms.
The first disagreements arose already in the deliberations of the In-
ternational Law Cornmission whose members were at pains to formu-
late a draft article containing a proper definition of these norms.
There were two distinct currents of opinion to be observed in the
deliberations of the Commissiom. A number of its members claimed
that the concept of Jus cogens already operated in the interna-
tional legal system through certain norms of positive law having that
character. Consequently, these members did not, by and large, consi-
der that a definition of the jus cogens norms was necessary
for a provision which was only a codification of already existing law.
The proponents of the «codification» position produced a num-
ber of norms that they considered as pertaining to the Jus cogens
family of rules. Among others, the most persistently mentioned were
the norms on human rights, the rules concerning the equality of Sta-
tes,? the principle pacta sunt servanda,? the principle re -
bus sic stantibus,‘ the rules concerning the freedom of the
seas and self-determination.?
These rules or principles of law were not, however, accepted by
all members of the International Law Commission as belonging to the

2. Commentary, 68.
3. Professor Tunkin considered thatthe pacta sunt servanda prin-
ciple is a jus cogens rule [ILC Yearbook, 197 (1963, 1}], a position taken
also by Professor Verosta in the deliberations of the UN General Assembly (UNGA
Official Records, 911th meeting). Professor Ago claimed, however, that
if the pactasuntservanda principle were considered as a Jus cogens
norm, then all rules of the law of treaties would become jus cogens norms,
4. ILC Yearbook, 142, 148, 150 (1963, 1).
5. Ibid. 67f. See also supra, for examples of jus cogens norms pro-
posed by the Fourth Special Rapporteur, Waldock, in his draft article.
48 The Concept of Jus Cogens

jus cogens category. Moreover, a great number of them were not

prepared to accept the inclusion of any indicative example in the text
of the draft article on jus cogens: The Commentary of the Com-
mission on its final draft article explained the reluctance of its members
to accept the inclusion of examples of jus cogens norms in its
draft as follows:
The Commission decided against including any examples of rules
of jus cogens inthe article for two reasons. First, the men-
tion of some treaties void for conflict with a rule of jus co-
gens might, even with the most careful drafting, lead to misun-
derstanding as to the position concerning other cases not mentio-
ned in the article. Secondly, if the Commission were to attempt
to draw up, even on a selective basis, a list of rules of interna-
tional law which are to be regarded as having the character of
jus cogens, it might itself engage in a prolonged study of
matters which fall outside the scope of the present article.®

On the other hand, the proponents of the position that the con-
cept of } us cogens was a novelty for the international legal sy-
stem and that the jus cogens_ provisions of the draft represen-
ted a progressive development of law insisted, along with other Sta-
tes, that the jus cogens norms should be clearly defined in the
pertinent provisions of the future Convention. They were not satisfied
by the attempts made to include some examples of jus cogens
norms, let alone the position to leave the draft peor without any
concrete definition.
The Commission, however, found itself unable to reach a decision
on the desired definition. As one of its members stressed, «the Dra-
fting Committee [of the International Law Commission] had been
compelled to refrain from giving any definition of jus cogens
whatever, because two-thirds of the Commission had been opposed
to each formula proposed».’ As a result, the Commission ended up by
furnishing the «legislative» bodies which were called to consider its
draft articles on the law of treaties with an article which contained
neither a definition nor any indication as to which were the jus ¢ 0-
gens norms in the international legal system.®

6. Commentary, 68 ,
7. Bartos, ILC Year book, 214 (19631).
8. For the text of the article proposed by the ILC see supra, 14. The. Commis
The Identification of the Jus Cogens Norms 49

The position of the representatives of States towards the draft

article of the International Law Commission may be summarized as
follows: both in the Sixth Committee of the United Nations and the
Conference in Vienna, States appeared prepared to accept — some
more eagerly than others ®— the introduction of the concept of jus
c¢ogens in the law of treaties. Once more, however, the disparity
of opinions reflected the fact that the majority of States were unac-
customed to the concept of international jus cogens. A great
variety of views were again observed with respect to the definition
of the peremptory norms and the lack of a common understanding on
the identity of the jus cogens norms prevailed throughout the
deliberations.”
Since the reaching of an agreement on the presice content of the
peremptory norms proved impossible both in the Sixth Committee and,
especially, in the Conference, the interest of the participants in Vienna
focused on achieving a better clarification of the notion of the jus
c¢ogens norms and on the elaboration of a fixed test through which
such norms could be distinguished from all other rules of internatio-
nal law.
A number of amendments were therefore proposed with a view
to clarifying and completing the letter of draft article 50.1 Among

sion in its final commentary refers to allthe examples of violations of jus cogens
norms which were more or less accepted as such by the majority of its members :
«Examples suggested included (a) a treaty contemplating an unlawful use of for-
ce contrary to the principles of the Charter, (b) a treaty contemplating the per-
formance of any other act criminal under international law, and (c) a treaty conte-
mplating or conniving at the commission of acts, such as trade in slaves, piracy
or genocide, in the suppression of which every State is called upon to co - opera-
te. [Also]... treaties violating human rights, the equality of States or the princi-
ple of self - determination... Commentary, 68.
9. Most of the reluctant States based their objections not on the advisabili-
ty of introducing the concept in the law of treaties but onthe great number of out-
standing problems that the ILC had left unresolved inits draft articles on jus co-
gens. These problems were mainly related to the efficient criteria for the identifi-
cation of the jus cogens norms, the exact content of these norms and the me-
ans to prevent the exploitation of their powerful function by States on bad faith
grounds (infra).
140. Some States insisted on a number of rules such as those contained in the
introductory articles of the UN Charter. They also made sporadic references to
some others. But on the whole, there was a general disagreement as to which ru-
les they should finally accept.
141. Amendments to draft article 50 were submitted by Finland (A/CONF.39/C
4
50 The Concept of Jus Cogens

them two proposals especially attracted the interest of States: one by

the United States and a joint one by Finland, Greece and Spain. The
first proposed to amend the draft article so as to read:
A treaty is void if, at the time of its conclusion, it conflicts with
a peremptory rule of general international law which is recogni-
zed in common by the national and regional systems of the world
and from which no derogation is permitted.

But this reference to national legal systems provoked a strong rea-

ction on the part of the majority of States. Although they admitted
that the provision on jus cogens would somehow gain in cla-
rity by the addition of the proposed test, they were completely unpre-
pared to accept an interference of municipal law considerations with
the determinations of the }us cogens norms. That amendment
was consequently rejected.”
The only remaining proposal concerning the establishment of a
distinctive test for the determination of the jus cogens norms
was the joint amendment of Finland, Greece and Spain. That amend-
ment sought the addition of the words «recognized by the internatio-
nal community as a norm» between the words «general international
law» and «from which no derogation is permitted» of the text of draft
article 50.
That proposal was welcomed by the Conference (Committee of
the Whole) and was submitted with some alterations to the Drafting
Committee *% with the understanding that the article had been refer-
red to it for a mere consideration of the drafting, that is, without any
right of modification of its substance, and that the concept of jus
cogens_ as presented in this article had been adopted.
The Drafting Committee proceeded to a number of additions which

4/L. 293), Finland, Greece and Spain (A/CONF. 39/C. 1/L. 306 and Add. 1 and
2), India (A/CONF. 39/C. 1/L. 254), Mexico (A/CONF. 39/C. 1/L. 302).
12. UNCLT Official, Records, 1rst Session, Committee of the Whole,
52nd meeting, 57 votes to 24 with 2 abstentions. However, the part of the amend-
ment proposing the addition of the words «at the time of its conclusion» was
adopted by 43 votes to 27 with 12 abstentions. Furthermore, the proposed substitu-
tion of the word «rule» to the word «norm» was referred to the Drafting Com-
mittee where it was rejected.
13. UEN Cab Dro cam entities 5%
14. The attitude of the Committee of the Whole clearly indicates the existing
consensus of the States in Vienna concerning the acceptance of the jus cogens
concept. Although containing a test of a certain severity when sent to the Draf-
The Identification of the Jus Cogens Norms 51

succeeded in formulating the draft article in a way that the test for
the determination of the peremptory norms was clearly depicted.%®
The jus cCogens_ provision was eventually adopted by the Ple-
nary Meeting in the second session of the Vienna Conference, with no
other alterations or additions. The proposed draft was adopted as ar-
ticle 53 of the Convention.'®
The dissipation of the previous reluctance of some States vis-a-
vis the introduction of jus cogens in the law of treaties resul-
ted precisely from the modification of the letter of article 50 and its
unsatisfactory wording. The addition of the test implicitly contained
in the phrase «a peremptory norm of general international law is a
norm accepted and recognized by the international community of Sta-
tes as a whole as a norm from which no derogation is permitted» was
considered as a sufficient safeguard against arbitrary uses of the con-
cept of Jus cogens. Other States, however, considered that even
after the revised wording the concept remained controversial thus threa-
tening the security of treaty relations. These States claimed that be-
yond the clear identification of the }us cogens norms, there was
also a need for a set of procedural safeguards. They, therefore, asked
for the drafting of some procedural provisions for the impartial deter-
mination of whether a rule with which a treaty conflicts is or is not a
jus cogens norm.
This demand met with very little success, as will be seen in a fol-
lowing section, and the States which hesitated to approve the con-
cept because of the absence of strong procedurel provisions expressed
their position in the vote for the adoption of the article through ab-
stention or opposition.’

ting Committee, the article was not adequately formulated. However, the majo-
rity of States were satisfied with the slight improvement brought about by the
accepted amendment and agreed to adopt the thus modified article. It was for the
Drafting Committee to subsitute a more precise wording to the rudimentary form
in which the test for the determination of the j us co gens norms was formula-
ted by stressing and safeguarding the consensual nature of these norms.
15. For a discussion on the test see infra, 52.
AG. Seers Wp Magrose
17. Article 50 was adopted by 87 votes in favour, 8 votes against and with
12 abstentions. The States which voted against the article were : Turkey, Austra-
lia, Belgium, France, Liechtenstein, Luxembourg, Monaco. The States which ab-
stained from the vote were: New Zealand, Norway, Portugal, Senegal, South A-
frica, Tunisia, the United Kingdom, Gabon, Ireland, Japan, Malaysia, Malta.
(UNCLT Official Records, 2nd Session, 20th Plenary meeting).
52 The Concept of Jus Cogens

The overall conclusion which may be drawn from the above brief
examination of the drafting of article 53 is that the consensus on the
introduction of the jus cogens norms, or, more generally, of
the jus cogens concept in the law of treaties was almost una-
nimous in the Vienna Conference among both proponents and oppo-
nents of the draft article. The main objections which were expressed
during the deliberations of States were not directed against the con-
cept itself but against the unsuccessful formulation of the article in-
corporating the concept. For that reason, when the article was some-
how improved, the opposition to its inclusion in the text of the draft
articles on the law of treaties was significantly reduced.

2. The Test of Identification.

From the very beginning, the lack of an agreement as to which

are actually the norms of jus cogens _ in international law had
dictated, as already stressed, the need for some criteria to assist the
successful determination of these norms. The improvement of the draft
article —effectuated by the adoption of the amendment of Finland,
Greece and Spain and the subsequent intervention of the Drafting
Committee — lied in the establishment of the consent of States as the
indispensable factor for the determination of a rule as one of jus
cogens.
That condition was lacking in the previous draft of the Commis-
sion and as a result many States in the General Assembly and in the
Vienna Conferenee had associated the jus cogens concept with
an effort on the part of the Commission to revive the jus natu-
rale, all the more so since the attitude of the latter indicated in-
deed a trend to that direction. Apart from the fact that some of its
early drafts and commentaries on the concept of jus cogens- were
heavily tainted with jusnaturalistic tendencies,!® the final commen-
tary on draft article 50, which was delivered to the States for a fi-

18. For Lauterpacht’s draft article 15 and the commentary toit see supra,
12. In that commentary Lauterpacht wrote that the principles of public policy
« need not necessarily, have crystallized inealchearly
accepted rule of law such as prohibition of piracy or of aggressive war.
They may be expressive of rulesofinternational morality so cogent
that an international tribunal would consider them as forming part, of those
principles of law generally recognized by civilized nations...» (I bid., Emphasis
added).
The Identification of the Jus CGCogens Norms 53

nal drafting and eventual adoption, contained. inter: alia’ the

following paragraph:
The formulation of the article is not free from difficulty since there
is no simple criterion by which to identify a general rule of in-
ternational law as having the character of jus cogens... It
would... be going much too far to state that a treaty is void if
its provisions conflict with a rule of general international law.
Nor would it be correct to Say that a pro-
vision in a treaty possesses the character
of jus cogens merely because the parties ha-
ve stipulated that no'derogation from that
provision is to be permitted, so that another treaty
which conflicted with that provision would be void. Such a
stipulation may be inserted in any treaty with respect to any su-
bject-matter for any reasons which may seem good to the parties.
The conclusion by a party of a later treaty derogating from such
a stipulation may, of course, engage its responsibility for a breach
of the earlier treaty. But the breach of the stipulation does not,
simply as such, render the treaty void... Itis not the form
of a’ general rule of international law but
the particular nature of the subject-mat-
ter with whith it “deals “that may, 1m the
opinion -o! the Commission, give rt there hea
racter of -jus €ogens:”

This peculiar statement which was, moreover, accompanied by

the indeterminate text of article 50 could easily create the impression
that States are not the sole determinant factors in the establishment
of arule, as one of jus cogens, and that, as a result, con-
siderations other than the will of the international community might
interfere with such determination. In consequence, the reluctance of
States to accept the draft of the Commission was not unfounded.
The significance of the test which was added by the Conference
is that it extends, beyond any doubt, the condition of consent on which
a rule of general international law depends, to the determination of
a rule as having the specific character of jus cogens. The gene-
ral acceptance and recognition of a rule as one of general internatio-

19. Commentary, 67. (Emphasis added).

54 The Concept of Jus Cogens

nal law does not suffice to make that rule a Jus cogens norm,
nor does the fact that this rule has a social significance or is of a
fundamental importance for the legal system. In order for a general
rule of international law to be a norm of jus cogens, it must
enjoy the consent of the States of the international community as ha-
ving that particular character. According to article 53. a rule is one
of jus cogens when both the above requirements are satisfied:
the consent of the States must embrace not only the content of the
rule but also its specific imperative nature. In the
case, for instance, of the rule which prohibits the threat or use of
force, the State(s) claiming that this rule is a jus cogens norm
must prove two distinct things: first, that the rule in question is ge-
nerally accepted and recognized as binding by the aggregate, or, at
least, the majority of, the States of the international community;”°
and, second, that the rule is accepted by these same States as a norm
limiting their contractual activity and invalidating all agreements con-
trary to its content.
The strict requirement of article 53, which may be called for con-
venience the «double consent» requirement, places the question of
jus cogens on its proper basis. International law is still a con-
sensual legal system. The dictum of the World Court in the Lotus
case, which constitutes the locus classicus of the judicial re-
cognition of the consensual character of rules of international law, still
holds good:

International law governs relations between independent States.

The rules of law binding upon States therefore emanate from their
own free will as expressed in conventions or by usages generally
accepted as expressing principles of law and established in order
to regulate relations between these co-existing independent com-
munities or with a view to the achievement of common aims. Re-
strictions upon the independence of States cannot therefore be
presumed.?!

Since States are still both legislators and subjects of law in the
international order, their consent to a rule represents at the same ti-
me their approval of that rule as being appropriate to govern their

PAD Mai ete Yiehs

21. PGI Series A, No 10) 48.
The Identification of the Jus Cogens Norms 55

conduct and_ their decision to be bound by it. In the case of the

jus cogens norms the separate, second consent witnesses in ad-
dition the approval by States of the specific function of the rule and
their willingness to respect it in the course of their inter se rela-
tions.
The fact, however, that one may agree on the consensual chara-
eter of the international legal system in general or more particularly
on the consensual character of the jus cogens norms, does not
automatically settle all the problems of the law-making and law-bin-
ding processes in the sphere of the international legal relations. Ine-
vitably, one more question arises, namely, how and when is the con-
sent of an individual State presumably manifested in a decentralized
system as that of international law?
In the context of the present section, the above question ‘is inti-
mately related to the notion of «norm of general international law»
as well as to the notions of «acceptance» and «recognition» of the
jus cogens norms by the «international community of States as
a whole». The consensual character of the jus cogens norms is
entirely founded on the above notions, yet neither of them is expli-
citly clarified by article 53 for the purposes of the Convention. An ana-
lysis of their meaning seems therefore advisable in order that the exact
framework of the consensual basis of the jus cogens norms may
be fully appraised.

A. The Meaning of the Phrase «Norm of General International Law».

A norm of general international law is presumably a legal rule

having a general applicability among the States of the international
community. In other words, a general norm is a norm which applies
to the wide majority of the States because it is accepted by them as
binding. It is not a universal rule in the sense that it is not conside-
red as binding by all unexceptionally the members of the community,
but, theotetically, it tends to become so.”

22. Lauterpacht/Oppenheim (I nternational Law I, 28) make the

following distinction regarding these two categories of rules ratione person-
nae: «Universal International Law is created when all or practically all
the members of the Family of Nations are parties to these treaties...On the other
hand, many law -making treaties have been concluded which contain general
International Law, because the majority of States including the leading Powers
are parties to them. General International Law has a tendency to become univer-
56 The Concept of Jus Cogens,

By definition, a jus cogens norm cannot be a norm of par-

ticular, regional or local international law for the purposes of the Con-
vention.22 The fact, however, that the Vienna Convention does not
deal with particular jus cogens for its purposes does not mean
that particular rules of law governing relations between specific Sta-
tes or groups of States cannot become peremptory norms for the pur-
poses of these States. Both regional-local law and particular treaties
may have rules prohibiting a violation of their content by subsequent
treaties concluded by subjects.of the regional-local law or by parties
to the particular treaties carrying peremptory norms. States cannot
be prevented from deciding to produce law of a peremptory character
on an inter se_ basis.
Theoretically speaking, however, such particular norms of jus
cogens must be subordinated, as all other rules, to the legal regime
of the general jus cogens norms. That is to say, a particular
jus cogens norm is valid as long as it does not violate a general
jus cogens norm. For if it were otherwise, a legal dualism would
be created which, in principle, would not be tolerable in a hierarchi-
cal structure dominated by general jus cogens norms.

sal because such States as hitherto did not consent to it will in future either ex-
pressly give their consent or recognize the rules concerned tacitly through custom.»
Although the part from which this extract is taken deals with rules of treaty law
the basic conceptual distinction remains valid mutatis mutandis, for all
other means of expession of the will of States.
23. The preference given to general international law by the drafters of the
Vienna Convention shows the disposition of States towards a universal legal order
in which some predominant rules will regulate their compliance with the «nece-
sary» rules of that order. As Virally («Réflexions sur le jus cogens», 14)
points out: «[O]n constate que la notion qui nous occupe conduit nécessairement
a la conception d’une société internationale universelle, dotées de ses valeurs.
propres et pouvant invoquer, a son profit, un véritable intérét général, qui doit
Vemporter sur les intéréts particuliers de ses membres: il s’agit done d’une so-
cieté internationale a laquelle les Etats ne sont pas libres de s’ourvir ou de se re-
fuser.»
24. Virally, again, referring, in his article (ibid.), to particular jus cogens
writes : «Peut - on concevoir un jus cogens régional, c’est-a-dire une situa-
tion dans laquelle un groupe d’Etats reconnaitrait certaines régles comme suffi-
samment importantes al’égard de la communauté particuliére qu’ils forment, pour
qu’aucune dérogation ne soit autorisée. Une telle conception... n’est pas impos-
sible ... En tout état de cause, méme si un jus cogens régional peut ainsi se
former, il sera, bien entendu, subordonné au j us co gens mondial, tel quele dé-
finit la Commission du droit international, puisque celui
- ci interdit précisément
The Identification of the Jus Cogens Norms i)

The quest as to whether a rule has the character of jus co-

gens must begin by finding out whether it belongs to general in-
ternational law. It must be established that the rule is binding upon
the great majority of States, in other words, that the international
community, by and large, has consented to its content.
The acceptance of the binding character of a rule of internatio-
nal law is expressed by means of specific processes or is incorporated
in specific material instruments which alone are considered as autho-
ritative proof of the will of States to be bound by a rule of conduct.
For the time being, it appears that there is one widely accepted pro-
cess which evidences a State’s will to be bound by arule: the cus-
tom; and one material instrument which witnesses that will: the con-
vention. Through the specific process of a custom or through partici-
pation in a treaty or some other international agreement States pro-
duce their law.?®

qu'un groupe d’Etats quelconque puisse déroger a ses exigences, méme dans les
relations mutuelles de ses membres». At the fifth session of the Lagonissi Confe-
rence on International Law (1966) Professor Boutros-Ghali claimed that there was
a need to make a distinction between universal and regional jus cogens. He consi-
dered that «if at the universal level the rules prohibiting the use of force took pre-
cedence over the principle of self-determination, because of the nuclear war threat,
the principle of self-determination has the priority in the African context where
such a threat did not exist.» These remarks provoked some agitation among the
members of the Lagonissi Conference and Professor Suy, who in his Report («The
Concept of Jus Cogens in Public International Law», 65ff.) referred to
particular jus cogens, explained that. «this reference was to certain rules of ge-
neral regional principles.» Professor Tunkin, moreover, «observed that local prin-
ciples could exist only within the: framework of universal principles. Otherwise
one would be denying the very existence of the latter.» Cf. Abi- Saab, «Summa-
ry Record of the Discussion of the Concept of Jus Cogens in Public Interna-
tional Law», 107 ff. Similar discussions took place during the deliberations in the
Vienna Conference. Cf. UNCLT Official Records, irst Session, Commi-
tee of the Whole, especially 53rd - 56th meetings. =
25. Article 38, 1, a, b, c, of the Statute of the International Court of Justice
which is generally accepted as containing the «sources» and «evidences» of inter-
national law customarily admitted by States, provides : «The Court, whose function
is to decide in accordance with international law such disputes as are submitted to
it, shall apply : a. international conventions, whether general or particular, esta-
blishing rules expressly recognized by the contesting States; b. international cu-
stom, as evidence of a general practice accepted as law; c. the general principles.
of law recognized by civilized nations;...» International law, therefore, contains a
third source of law which is productive of legal rules for the international system.
However, the general principles of law are not examined in the present work as.
58 The Concept of Jus Cogens

Technically speaking, the way that law is produced differs bet-

ween the customary process and the conventional process. Consequen-
tly, one should attempt to examine separately when arule becomes one
of general international law under each of the two different law-ma-
king processes.

a. General Customary Law.

As has been consistently stressed, international law is a consen-

sual legal system. In order therefore for a rule of conduct to become
a rule of general international law the proof of consent of the inter-
national community is required. In the case of a customary rule, na-
mely a rule which emerges out of the practice of States and carries
their legal conviction that such practice has a legal obligatoriness

a law - creating process for two reasons: (a) The relevant phrase of article 53
requires that ajuscogens norm must‘be a norm of general international law.
By definition, a general principle of law is not anorm. It is a general statement
induced from or giving rise to a number of rules of law; but it is not itself a norm
in the sense that it has no legally binding character as such. Cf. Union Académ:-
que Internationale, Dictionnaire dela Terminologie du Droit
International, sub verbo «principes de droit» where the latter are de-
fined as «propositions premieres dégagées de l’ensemble du systéme juridique par
voie de synthése, considérées comme exactes et susceptibles, en conséquence, de
justifier des déductions dans ]’ordre juridique.» A general principle of law, there-
fore, cannot be a jus cogens norm. This does not mean that the rules from which
it is induced cannot be or become ]us cogens norms. But in that case, these
rules will be or become rules either of customary or conventional law; (b) the
significance of general principles of law, which, according to the apparently most
acceptable position, are principles in foro domestico, is gradually loosing
ground in the international legal system. The addition of this third source of law
(which is considered by a number of authors as a «subsidiary» source) was made in
order to cover the possible lacunae of international law, at a time when the in-
ternational order was an incomplete, semi-primitive legal system. The present,
however, development of international law, particularly through multilateral con-
ventional arrangements, has diminished the importance of the assistance of these
principles. A great deal of topics previously contained in general principles have
already entered the field of customary or conventional law. As a result, the prin-
ciples are not mentioned anymore in the various occasions of law - determining
processes.
For those who are interested in studying that highly contestable source of
international law the following books or articles (which are only part of a quite
rich bibliography) are recommended: Cheng, General Princi p Le's' ont
Law; Blondel, «Les principes généraux de Droit devant la Cour Permanente de
Justice International et la Cour Internationale de Justice»; Parry The Sour-
The Identification of the Jus Cogens Norms 59

(opinio juris),* the proof of the legal conviction of the inter-

national community is needed in order for the rule to become one
of general international law.
Indeed, it appears that in customary law the psychological ele-
ment, namely the opinio juris of States, represents their consent
vis-a-vis the content of a rule. States accept the legal obligatoriness
of a rule out of various considerations and probably conflicting tenden-
cies, but from the moment that they establish their final appraisal
towards the legal advisability of a given rule of conduct, their con-
sent becomes identified with their legal conviction.
The proof, now, of the legal conviction of a State towards a rule
of conduct must be looked for in the relevant practice of that State
in which it has manifested its conformity with the content of the ru-
le. The practice of a State, that is, any kind of concrete expression
of its will,?? is the authoritative way through which its legal conviction
is realized. In the meaning of practice one should include, inter a-
lia, the direct declaration of a State regarding its legal conviction
towards a rule of conduct; yet, this declaration should be judged as an
evidential element of equal force as all other evidential elements, and

ces and Evidences of International Law; Tunkin «‘General

Principles of Law’, in International Law»; Verdross, «Les principes généraux de
Droit dans le systeme des sources du Droit international public»; Virally, «Le
ré.e des principes dans le développment du Droit international», et al.
26. On the constitutive elements of custom there is an abundance of writings.
Inter alia: Bishop, «General Course of Public International Law»; Briggs,
«The Colombian-Peruvian Asylum Case and Proof of Customary International
Law»; Cheng «United Nations Resolutions on Outer Space: ‘Instant’ Internati-
onal Customary Law?»; D’Amato, The Concept of Customin Inter-
national Law; Fitzmaurice, «The General Principles of International Law»
same, «Some Problems Regarding the Formal Sources of International Law»; Cug-
genheim, «Les deux élémens de la coutume en Droit international»; Kelsen, Prin-
ciples of International Law; Kopelmanas, «Custom as a Means of
the Creation of International Law»; McDougaJ, et al., «The World Constitutive
Process of Authoritative Decision»; Sorensen, Les Sources du Droit Inter-
national; Tunkin, «Remarks on the Juridical Nature of Customary Norms
of International Law»; Wright, «Custom as a Basis for International Law in the
Post-War World»; Virally, «The Sources of International Law».
27. This practice may be considered as lato sensu practice and it con-
tains all the manifestations of State will without exception : diplomatic practice
acts or actions, participation in international organizations, international confe-
rences, bilateral or multilateral agreements, declarations, judicial decisions of
municipal courts on the question of a rule of conduct of international law, etc.
60 The Concept of Jus Cogens

be carefully balanced against all material manifestations of the will

of that State on these matter.?®
Theoretically speaking, if one searched in the same way into the
practice of each individual State of the international community, then
one would arrive at an estimation of the opinio juris of that
community as a whole with respect to a particular rule of conduct.
Unquestionably, this would be the simplest and safest way to prove
the existence of a rule of general international law. It is what the In-
ternational Court of Justice seemed to suggest in the Asylum Case:
The party which relies on a custom... must prove that this cus-
tom is established in such a manner that it has become binding
on the other party... that the rule invoked... is in accordance
with a constant and uniform usage practised by the States in
question and this usage is the expression of a right appertaining
to the State granting asylum and a duty incumbent on the
territorial State.? |

The above decision of the Court does not however seem to refer
to the proof of existence of a rule of general customary law. The
Asylum case concerns a matter of special, inter-american custom and
it may not therefore be considered as applying to general custom.”
But even if the Court meant to cover by its dictum all customary
rules of law regardless of their field of apphcability, it would appear

28. Baxter («Treaties and Custom», 44) writes: «What States declare to
be the state of the law can be characterized as wrong only in the sense of its being
inconsistent with (a) the past practice or declarations of the asserting State or (b)
the practice or views of other States or (c) the general view of States reflected in
‘a general practice accepted as law.’... The possibility that new custom of indivi-
dual States, contributing to change in international law, can be brought about
through the mere ipse dixit of States in proclaiming new views of international
law could clearly lead to abuse.»
29. 1CJ Reports, 256 ff. (1950). The same position was taken by the
Coulrt in the Morocco case.
30. Fitzmaurice («The General Principles of Internationai Law», 106) writes:
«In both these cases (Asylum, Morocco) the Court was dealing with the
existence, or establishment through usage, not of a general customary rule of
international law, but of a special rule applicable amongst a group of States, or
in particular circumstances... However, the language used by the Court shows
that exactly the same principles apply to both the case of special or local usages
or customs having the character of law, and to that of general usages giving rise
to or evidencing the existence of customary rules of general international law.»
The Identification of the Jus Cogens Norms 61

that its position is not substantiated by the general, at least, attitude

of States, international bodies and the doctrine towards that matter.
The question of proof of general custom must be put on a dif-
ferent basis: it appears that the international community has acce-
pted that for a number of customary rules, namely for the rules of
general applicability, a presumption works in favour of their general
character. This presumption is that a rule is part of general interna-
tional law as long as its subject-matter deals with a question of general
interest for the international community and provided that its unequivo-
cal content is established through considerable State practice lato
sensu, international authoritative decisions and doctrinal agree-
ment.*! The position taken by States, for instance, in the Vienna Con-
ference with respect to the specific jus cogens norms shows
that States are prepared to accept that a number of rules — though
quite limited for the present — are rules of general international law
because there is wide proof that these rules are accepted by a large
number of States, by judicial or other authoritative decisions and by
the doctrine.*
However, the establishment of a rule as one of general interna-
tional law by means of the above presumption does not in any way
modify the consensual basis of international law. On the contrary,
it appears that it reflects precisely the conscious recognition of Sta-
tes that in a decentralized legal system such as international law, a
certain abstraction is necessary to make the system effective provi-
ded, of course, that this enjoys the consent of the States as a whole
and that some conditions a priori placed are satidfied.
On the other hand, the presumption that a rule is general is re-
buttable: States are, at least in principle, free to dissociate themsel-

31. It goes without saying that the problem of proof of general custom arises
in novo every time that the character of a specific rule is contested. It is for the
States concerned, or the independent agent dealing with the matter, to assess the
existing proof and to determine, on the basis of adequacy of the evidential
matter, the character of that rule. For a quite interesting discussion on that
matter see d’Amato, The Concept of Custom in International
Law, 73 et seq.
32. See, however, the quite rigid position that States have taken in Vienna
with respect to the presumption of general applicability when the question of
“third States” was discussed (for an analysis on that matter: Rozakis,
«Treaties and Third States: A Study in the Reinforcement of the Consensual
Standards in International Law», 25.
62 The Concept. of Jus Cogens

ves from the binding character of a rule by manifesting in time their

dissenting will thus denying the existence of that rule as binding law
upon them. Such refusal, moreover, would have the effect of influen-
cing the determination of the status of that rule in the international
order. The Norwegian contention in the Fisheries case seems
to convey quite eloquently the position supported in the previous li-
nes:
Clearly such refusal [to accept a rule of law as binding] must
not be confounded with a refusal to conform to an established rule
already binding on the States concerned. In the latter case, the
conduct of the State would be contrary to its obligations; the rule
of law being already obligatory for it, the refusal to apply it
would constitute an illegal act. But if, either expressly or by a
consistent and unequivocal attitude, it has manifested the will
not to sumbit to the rule at a time when this had not yet as-
sumed, in regard to that Stare, the character of an obligatory
rule, the State will remain outside its field of application.*?

Finally, it should be pointed out that de lege ferenda,

only the latitude and elasticity involved in a process based on such
presumption as defined in the previous paragraphs, may enhance the
further emergence of new general customary rules. Indeed, only this
flexible attitude towards the consent-giving may permit the prompt
coverage of the legal needs which arise in today’s fast-moving world.
A stricter approach would undoubtedly thwart the effectiveness of
custom whose significance would thus gradually disappear.

The future role of general customary rules as a potential vehicle

of the Jus cogens concept unquestionably depends on their ove-
rall significance as a source of law in the sphere of international rela-
tions. In recent years, two major sociopolitical events have taken place
which have shaken the significance of customary rules for internatio-
nal law.
The first event is the fast. development of international relations
through the expansion, in an unprecedented manner, of complex paci-
fic co-operation in almost all fields of human activity and almost
among all the States of the world. This event has brought about the

33. ICJ Publicationsiof the Pleadings, Oral Arguments,

Documents, Vol. 1, 382
- 383.
The Identification of the Jus Cogens Norms 63

realization of the need of an organized legal order which would pro-

vide clear rules and accelerated procedures as well as competent or-
gans to deal with substantive and procedural questions of law.
Customary law has always suffered from two basic disadvantages
inherent in its nature which make it almost unable to cope with the
present rapid evolution of international relations. In the first place,
the process of its creation is relatively slow. In order for a rule of con-
duct to become binding upon States, it must be backed by practice
of the latter manifesting their legal conviction on the obligatory na-
ture of its content.
Although the process of customary law-creation has been rela-
tively accelerated by the emergence of novel means of evidence-fin-
ding (the massive expression, for instance, of the legal conviction of
States in connection with a rule of conduct through the various inter-
national fora) the fact remains that a customary rule requires more
time in order to be consolidated than does a conventional rule which
becomes unequivocally binding upon the coming into force of the in-
strument containing it. Consequently, customary law may offer little
assistance to problems which need urgent legal settlement as do many
current problems of international relations.*4
The second basic disadvantage of customary law is the fact that
its rules are most of the time too general and vague. Their very na-
ture as unwritten law makes it difficult to regulate quite specific and
complicated legal relations. This is particularly true with respect to
technical or economic problems as well as in the case of procedural
or other highly specialized questions.
The above disadvantages may be called for convenience the le-
gal disadvantages of customary rules. These rules, however, suffer from
one more weakness which can be of a particular significance in the
light of another important event that has taken place in recent years.
This latter drawback might be called the political disadvantage of cu-
stomary rules.
Indeed, the world has witnessed in recent years the emergence
of a great number of newly independent States mostly in Africa and
Asia. These new States which were hitherto subjected in one form or
another to the Western rule, appear reluctant to readily accept a body

34. Such are, for instance, the questions pertaining to space exploration, ex-
ploitation of the ocean bed, anarchical international activities (terrorism, hijack-
ing), environmental protection, international economics, et al.
64 The Concept of Jus Cogens

of customary rules in whose creation they have not participated at

all.35 Instead of rules of classical international law which are but «a
projection — protectorates,
of colonia lism concession, capitulations—
designed in part to legalize European acquisitions and privileges», *
the new States have favoured the scheme of international agreements
as the safest and most efficient means to express their legal conviction
and to be bound by a rule.
However, while conventional law has the advantage of providing
clear and unambiguous rules accepted by a considerable majority of
States as a desirable vehicle of their legal conviction, it has at the same
time a major drawback which justifies, at least for the present, the
existence of customary law as a separate process of law-creation.
This major drawback is that the rules governing the operation of
international agreements are more suitable for the contractual nature
of a private agreement than for a law-making, normative instrument.
Hence, a part of the theory — reflecting the position of certain States
in this respect— denies altogether the nature of treaties as general in-
ternational law and considers that only customary law may be or be-
come law of general applicability:
...[G]eneral international law.,. exists only and exclusively as
customary law; there is no such thing as general treaty law. The
voluntarist element in customary law is infinitely weaker than
in conventional law; indeed, the notion of «third States» whom
legalrules nec prosunt nec nocent has no place here.
Arising out of this admittedly less voluntarist character, custo-
mary law is incomparably less vulnerable than is treaty law to

35. With regard to the position of new States towards customary rules of Jaw
Udokang («The Role of New States in International Law», 149f) writes: «Ona
more general level, it may be stated that the basic feature of the attitude of the
new Afro-Asian States is its ambivalence towards traditional norms of international
law. For while proclaiming their adherence to international law, these States have
often, in practice, challenged the validity of certain of its rules, insisting that such
rules must be radically changed to reflect changes in the structure of the contem-
porary international society.» He continues: «In calling for a review of traditional
international Jaw, they [the new States] have invariably rested their case upon
the consensus theory of legal obligation, contending that for any rules of inter-
national law to be accepted as universally binding, they must receive the consensus
of the great majority of States including the new States, making up the present
international society».
36. [bid.
The Identification of the Jus Cogens Norms 65

all voluntarist dangers; thus, reservations which have become

a source of weakness of more than one multilateral treaty are ex-
cluded with regard to customary rules. Nor is it possible to in-
voke the clausula rebus sic stantibus against the
continuous validity of these norms. It cannot be imagined that
a customary norm can be «denounced» by a State, while the dan-
ger of denunciation hovers permanently over a treaty, whether
the latter does or does not include a denunciation clause®’.

This statement, which represents the position of a number of Sta-

tes and writers of international law, certainly presents the truth, on-
ly shghtly exaggerated. Its writer does not seem to accept that the
evident drawbacks of treaties are not necessarily inherent in their na-
ture and that remedies can therefore be found. If States decide to par-
tly modify certain rules of the law on treaties or, simply, inactivate
them through particular clauses contained in treaties or other inter-
national agreements in the form of procedural rules, the voluntarist
element may lose part of its force and become equal in strength to
the voluntarist element of customary law.*®* Such development would
seem quite plausible given the current interest in treaties of a great
number of the States of the international community, and the advan-
tages of the latter over customary law.*®

37. Marek, «Thoughts on Codification», 497.

38. Let us take an example in order to clarify the above argument: States-
parties to a treaty may provide, through a clause of that treaty, for a prohibition
of withdrawal of the parties. If not withstanding such prohibition a party with-
drew from the treaty, it would be committing a violation which would not be less
serious than a violation of a customary rule of law. Furthermore, in writing on the
necprosuntnecnocent rule, Marek seems not to take into consideration
that a customary rule may also be regional or local with not general applicabili-
ty and obligatoriness. From the moment that the rule is or becomes general (whe-
ther conventional or customary) the inter alios acta rule simply does not
apply.
39. Characteristically enough, and this comes in support of Udokang’s ar-
gument (see supra, note 34), a representative in the Vienna Conference poin-
ted out that «...customary law is only partly and hesitantly accepted by Commu-
nist States and the younger African and Asian members of the international com-
munity. Indeed, they refuse to be bound by rules which they did not help to
create, the norms in question being, by and large, the product of a practice of the
western world. No wonder that today international law is mainly developed by
bi or multilateral treaties.» (Neuhold, «The 1968 Session of the UN Conference on
the Law of Treaties», 64).
5
66 The Concept of Jus CGogens

It follows from the above discussion that an objective observer

may notice a gradual decline of customary law and a growing interest
in conventional law. Yet it would be rather premature to say that
customary law does no longer serve the international community or
to proceed to any conclusions regarding its future. It should not be
forgotten, after all, that most of the jus cogens rules proposed
by the drafting bodies of the Vienna Convention belonged to the ca-
tegory of customary rules. Consequently, it would be quite safe to
conclude that, for the moment, customary rules of law enjoying the
general consent of the international community —to be inferred by
means of the above discussed presumption— may be or become jus
cogens norms for the purposes of the Convention, ceteris pa-
ribus.

b. General Conventional Law.

The process of proof of the general character of a rule — which

is the first requirement of article 53 —is unquestionably easier in the
case of a conventional rule than it is for a rule of customary law. The
opinio juris ofa State is proved by its participation in the tre-
aty containing the rule and by its unconditional acceptance of the
latter.44 In consequence, a general conventional norm would be a norm
accepted unconditionally as binding by the wide majority of States
of the international community through their participation in an inter-
national agreement containing it.
Participation in an international agreement and the résultant
acquisition of rights and obligations, is achieved through a specific pro-
cess. There are several ways through which participation may be esta-
blished; international law accepts a number of manifestations as ma-
king an agreement binding upon a State. This might be the signature
of an agreement, the ratification of, or accession to it. Usually an a-
greement becomes binding on a State upon its ratification; neverthe-
less, States prospect parties to an agreement, may freely decide on a

40. Yet, most of them were (and, of course, still are) conventional rules
contained in general multilateral treaties (the UN Charter, the Geneva Conventions
on the Law of the Sea, etc.
41. By «unconditional acceptance» is meant that the State has not produced
a reservation towards that rule, if a reservation is allowed by the letter cf tha
treaty.
The Identification of the Jus Cogens Norms 67

different manner of becoming bound, to be specified in a separate pro-

cedural clause of their agreement.4?
There is one further condition to be satisfied for a conventional
rule to become general: the participation in the treaty containing that
rule of these States which are the most interested in and affected by
the legal regime with which its subject-matter deals. While in the case
of customary rules the fulfilment of this condition is assured by the
fact that considerable State practice is required (the finding of which
should undoubtedly bring on the surface the States with the greatest
extent of activity in the field) in the case of treaties no such safe-
guard is assured merely through large participation.
Indeed, it would be possible, at least theoretically, to conceive
of a treaty which might be considered a general treaty by numerical
standards but which would not enjoy the participation of the States
admittedly most interested in its content, or in the content of one
of its rules for that matter. This likelihood — which is, of course, quite
theoretical since States would normally not proceed to the conclusion
of treaties which would be of no interest to them, or else without se-
curing the participation of the most interested States — may be avoi-
ded if the condition of participation of the most interested States is
added to the condition of general participation.
In revising, therefore, the first definition of the term «general con-
ventional rule», we should complete it by adding that a general con-
ventional rule is a rule accepted unconditionally as binding by the wide
majority of States of the international community including the Sta-
tes most interested in its legal subject matter, through participation
in an international agreement containing that rule.
With the addition of the second condition the international le-
gal system is spared from becoming a normative order with two con-
flicting regimes on the same legal subject-matter. This is particularly
important in the case of a general conventional rule which is to be-
come a jus cogens_ norm. If the second condition is satisfied,
the existence of States which do not accept the conventional rule—
thus preventing it from becoming universal—is not important for
the purposes of the application of that rule, since the States in que-

42. On the development of the means of concluding a treaty or other intern-

national agreements, see Rousseau, Droit International Public (pa-
rticularly the section dealing with the «Modifications récentes a la procedure
traditionnelle de conclusion des traités», 1114 - 132).
 68 The Concept of Jus CGogens

stion would be neither interested in nor affected by its legal regime.

In consequence, neither their participation nor their abstention would
be of any great legal significance.
It should be immediately stressed, heaeiee that even for the
small number of States which do not participate in a general treaty
for lack of immediate interest, the legal regime stipulated by the ge-
neral rule(s) contained therein is not entirely a res inter alios
acta. Although the rule which provides that treaties do not create
rights or obligations to non-parties still holds good, it is nevertheless
undeniable that a general treaty has unavoidable effects upon third
States should the latter find themselves in a situation deriving from
or falling under the regime created by that treaty, or should they be
obliged to act within the context of that regime. A general treaty ma-
nifests the legal conviction of the wide majority of States with respect
to its subject-matter. From a political, therefore, point of view, non-
parties cannot defy the regime created by the general treaty without
any consequences whatsoever. In the present era of interdependence
of interests even a small number of States cannot become isolated:
they should always take into consideration the position of the interna-
tional community at large insofar as the legal regime of a general tre-
aty is concerned.
]
I Furthermore, a general conventional rule reflecting the legal con-
i viction of the wide majority of States, taken this time on a one by
one basis, influences the status of customary law dealing with the same
subject-matter. The fact that it expresses the opinio juris of
the international community as a whole has as a result first, the.
modification of any previous rule of customary law, general or
particular, by the new rule of the treaty for the parties to the latter;
and, secondly, the emergence of a new rule of general customary law out
of the evidence of the general opinio juris, which acts upon
the international community of States independently of the
treaty originally carrying it.

43. The ICJ, in dealing with this matter in relation to the «equidistance» rule
of the Convention on the Continental Shelf (which was not, and is still not, a gene-
ral treaty), claimed : «...This is to the effect that even if there was at the date of
the Geneva Convention no rule of customary international law in favour of the
equidistance principle, and no such rule was crystallized in Article 6 of the Con-
vention, nevertheless such a rule has come into being since the Convention, partly
because of its own impact, partly on the basis of subsequent State practice, — and
that this rule, being now a rule of customary international law binding on all
The Identification of the Jus Cogens Norms 69

Therefore, even for the non-parties a general conventional rule

is not without its effects although from a stri¢tly legal point of view
the basis of these effects is not the treaty itself, namely the original
vehicle of that rule, but the transformation of the latter into a gene-
ral customary rule and the fact that a general rule of customary law
apples in principle to all the members of the international commu-
nity.44

In concluding, it seems to be beyond any doubt that a general

conventional rule, (a) is general international law for the purposes
of the Convention, and (b) may consequently be or become a jus
cogens norm.
In assessing now the advantages and disadvantages of general
conventional rules as a potential vehicle of the jus cogens con-
cept, it must be recognized that the former by far supersede the lat-
ter. Indeed, the clarity and non-ambiguity of the letter of conventio-
nal rules is a major aid in the exact delimitation of the jus cogens
norms this being, most probably, their greatest advantage over gene-
ral customary rules in this respect.
Moreover, an international agreement may contain compulsory
rules on the procedure for the settlement of disputes to accom-
pany its substantive jus cogens_ provisions thus undoubtedly
facilitating the impartial settlement of any differences arising out
of the application of the latter. This may be considered as another
major advantage of the conventional jus cogens norms sin-
ce, admittedly, the existence of such procedural rules in a particular
treaty may considerably safeguard the bona fide application of
the jus cogens norms of that treaty. It goes without saying
that this would not be in principle possible in the sphere of unor-
ganized international relations governed by customary law, where com-

States... should be declared applicable to the delimitation of the boundaries

between the Parties’ respective continental shelf areas in the North Sea». [North
Sea Continental Shelf cases, ICJ Reports, 44 (1969)]. See also,
Baxter, «Treaties and Custom», 57.
44. Cf. the Reparation for Damages Suffered case (I1CJ Re-
ports, 147 (1949)] where the notion of «objective personality» is enunciated. To
accept the contentions of the Court on that notion would be to accept that,
under certain circumstances, a treaty may have direct effect upon non-parties,
and not merely effects which the transformation of a conventional rule into a
customary rule would entail.
70 The Concept>of Jus Cogens

pulsory means of settlement of disputes do not exist and where, in

consequence, any disputes arising outof the application of an alleged
general customary rule of jus cogens would have to be settled
by diplomatic rather than by legal means.*°
Finally, another advantage of the general conventional rules with
respect to jus cogens is the ease with which their peremptory
character may be discerned. From an evidential point of view, a ge-
neral conventional rule does not present any problem concerning its
general character: proof is simply a matter of assessing the partici-
pation to the treaty and the importance of the participating States.
Furthermore, the general acceptance and recognition of that rule as
a jus cogens norm by the aggregate of the participants may
be proved in a relatively easy fashion: if the jus cogens chara-
cter of the rule is not expressly established through the letter of the
treaty, there will certainly be an abundance of other evidence — to
be found in the preparatory work, in declarations of the parties to
that effect, in the application of the treaty itself, etc.— manifesting
that character.
The basic now disadvantage of the general conventional rules
as compared to general customary rules, is the already discussed «con-
tractual» character of the former which, under certain circumstances,
may hamper the normative nature of jus cogens. The fact that
even the Vienna Convention on the Law of Treaties, which is the
most recent codificatory work on this law, regards treaties more as
contracts of private law than as genuine normative instruments, in-
dicates that this deficiency of treaties will last for a considerable time
yet. It is indeed quite peculiar that the Convention does not distin-
guish between multilateral treaties of an apparently normative cha-
racter and all other treaties of a limited calibre not purported to create
norms applicable to the international community as a whole.*¢
This lack of classification of treaties according to their legal si-
gnificance, and the consequent lack of a distinct legal treatment cor-
responding to their role, shows that the law has not sufficiently fol-
lowed the evolution of the function of treaties in international legal
relations. As a consequence, a number of «contractual» characteristics

ays ILNAVSE IPE 1G,

“£6, See Rosenne, «Is the Constitution of an International Organization an
International Treaty?», 24; Diaconu, Contribution aune Etude sur
les NormesImpératives en Droit, Intermatiamal o2mmeien.
The Identification of the Jus Cogens Norms 71

are still present in the provisions of the Vienna Convention although

at several instances their text seems to acknowledge the possible nor-
mative character of multilateral treaties.47
However, the fact that treaties are more or less considered as
contracts by the law in general and the Vienna Convention should by
no means lead to the conclusion that their contractual character is
an incurable drawback making general conventional rules less effi-
cient than general customary rules as regards jus cogens. As
has been already pointed out, an individual treaty purported to con-
tain jus cogens norms can stipulate some prohibitive prov'sions
preventing the parties from hampering the nature of these norms
through reservations to a rule, suspension of or withdrawal from the
treaty.
Even if it were accepted that nothing is or can be done to pre-
vent States from availing themselves of the contractual character of
a treaty, which is of course quite improbable, it should not necessa-
rily be thought that this would constitute a negative aspect of the
general conventional rules as potential vehicles of the jus cogens
norms. It should not be forgotten, after all, that a jus cogens
norm is mutable, that is to say, subject tc modification and extinction.*
Indeed, a peremptory norm contained in a treaty will be of that na-
ture as long as it enjoys the general acceptance of the parties. Con-
sequently, if frequent reservations, withdrawals from or suspensions
of the treaty begin to occur, this fact will indicate that the norm is
no longer jus cogens, since it has apparently ceased to enjoy
the general acceptance of the parties.

47. See particularly articles 19, 20, 21, 41, 54, 56, 57. Although all of these
articles offer a possibility to one or more parties to become disengaged from the
obligations incumbent upon them through the clauses of a treaty, nevertheless
they all provide for specific procedures to be followed by the parties in order for
them to become disengaged and, under certain circumstances, they determine the
right of disengagement on the basis of interests more general than those of the
party (ies) wishing to become disengaged. For instance, article 19, dealing with the
«Formulation of Reservations», provides that a reservation
a State may formulate
«unless ; (a) the reservation is prohibited by the treaty; (b) the treaty provides
that only specified reservations, which do not include the reservation in question,
may be made; or (c) in cases not falling under sub - paragraphs (a) and (b) the
reservation is incompatible with the object and pur-
pose of the treaty.» (Emphasis added).
48. Inira, 35 et seq.
NIbo The Concept of Jus Cogens

In other words, in the consensual international order, the act of

disengagement — when not isolated so as to constitute a mere viola-
tion — may serve as a useful evidence of the changing opinio ju-
ris of States with respect, inter alia, toa Jus cogens
norm contained in a treaty. Such change in the legal conviction of
States naturally entails the modification or extinction of that norm,
as the case may be.

The fact that a general conventional rule may, as the general

customary rules, be or become a jus cogens norm, is also esta-
blished by the position taken by States in the deliberations of the
official bodies which sponsored the jus cogens concept for the
Vienna Convention.
The International Law Commission kept a consistent position
with regard to the question of treaties as a «source» of Jus co-
gens norms, by considering general multilateral treaties as poten-
tial vehicles of these norms. In 1963, however, the words «general mul-
tilateral treaties» were deleted from the text of the relevant draft pro-
visions and did not appear in any of their subsequent drafts. The de-
letion of these words was eventually explained in the final commen-
tary to draft article 50, a propos of the mutable character of the
jus cogens norms:
On the other hand, it would clearly be wrong to regard even ru-
les of Jus,cogens as immutable and incapable of modifica-
tion in the light of future developments. As a modifica-
tion of a rule of jus cogens would to-day
most probably be effected through a gene-
raky multilateral. treaty, the “Geom micrsron
thought~it destrable to tndicate that sarch
a treaty would fall outside the scope of the
Ant Cle..42

If the above extract is read in conjunction with the preceding part

of the same paragraph of the Commission’s commentary, it becomes
quite clear that what is meant by it is that (a) since a general mul-
tilateral treaty expresses the legal conviction of the international com-
munity as a whole, this instrument should be considered as the sa-
fest and most probable means of modification of any existing jus

49. Commentary, 68. (Emphasis added),

The Identification of the Jus Gogens Norms 73

ecogens norm, whether customary or conventional, and (b) it would

be consequently erroneous to include a general multilateral treaty wi-
thin the scope of article 50, since, certainly, the change of position
of the international community as a whole, far from being an illega-
lity (that is, a deviation from a general rule) would actually consti-
tute a law-creating process. In other words, the Commission conside-
red that a general multilateral treaty can be a source of jus co-
gens norms which is another way of saying that a general conven-
tional rule may be a norm of jus cogens.

In the deliberations of the Vienna Conference, a great number

of representatives — actually, the majority of those who expressed their
opinion on the matter — took a position in favour of the general trea-
ties as a potential vehicle of jus cogens norms. As a matter
of fact, the approach of each State (or group of States) to that pro-
blem more generally reflected its overall philosophy on the question
of treaties as normative instruments. In consequence, the socialist coun-
tries and the new States unreservedly favoured treaties as a source
of jus cogens norms. And although a great number of Western
countries were opposed to that position or abstained from pronoun-
cing on the matter, the existing evidence, by a large margin, allows
the conclusion that the Vienna Conference recognized the value of ge-
neral treaties as normative instruments as well as their significance
for the future development of the international legal system.
In terminating this discussion, it seems that more than one rea-
son exists for accepting that general conventional rules must be con-
sidered as potential jus cogens norms. The fact that treaties are
on the way to becoming the major source of international law and
that their positive aspects are clearly more numerous than their ne-
gative ones are convincing arguments that the future of the jus
cogens concept is closely intertwined with that of general treaties.
The rejection, therefore, of general conventional rules as potential jus
cogens norms would practically signify the definite obliteration of
that concept.

B. The Meaning of the Phrase «A Norm Accepted and Recognized

by the International Community of States as a Whole as a Norm
from which no Derogation is Permitted».

The establishment of a rule of international law as a general cu-

74 The Concept of Jus Cogens

stomary or conventional rule satisfies the first requirement of the text

of article 53, stipulating that a normof jus cogens must be a
norm of general international law. However, this is not the end of the
matter. The search must subsequently enter a second phase whose
purpose is to find out whether the norm, beyond being a norm of ge-
neral international law, is also accepted and recognized by the inter-
national community of States as a whole as a norm from which no
derogation is permitted. It must be proved, in other words, that the
rule enjoys the consent of the international community as to its spe-
cific character, namely its capacity to invalidate agreements contrary
to its content, thereby limiting the autonomy of State will.
It may be recalled that the idea of a special consent to the per-
remptory character of a rule originated in the Vienna Conference. Ea-
ger to see an improvement of the proposed article 50, the participa-
ting States accepted the test of the «double consent» proposed by the
co-sponsored amendment of Finland, Greece and Spain.®® The amen-
dment was further elaborated by the Drafting Committee of the Con-
ference which added to the word «recognized» the word «accepted»
to precede the former in the text.>4
In explaining this addition to the Committee of the Whole, the
Chairman of the Drafting Committee said that the word «accepted»
had been added «because it was to be found together with the word
‘recognized’ in article 38 of the Statute of the International Court
of Justice». :
Indeed, article 38 of the Statute of the International Court of
Justice, enumerating the sources to which the Court should resort in
order to find the law to be applied to the settlement of submitted
disputes, comprises in its text both the word «recognized» (as regards
international conventions and general principles of law) and the word
«accepted» (concerning international custom).°%
The above two words seem to emphasize, for the purposes of the
Statute, the consensual basis upon which international law rests. The
rules of international conventions must be expressly recognized by the
contesting parties, and the general practice evidencing international

D0 SS) U)pit ayno,0

d41. A/ CONF.39/C. 1/11.
52. UN CLT Official Records, irst Session, 80th meeting of the
Committee of the. Whole.
Doe OU pao 7m NOE R25.
The Identification of the Jus Cogens Norms 75

custom must be accepted as law. The same may be said with respect
to the general principles of law which in order to be considered bind-
ing in the international sphere, must be recognized by civilized na-
tions, this time, however, in foro domestico.
Apparently, the addition by the Drafting Committee of the word
«accepted» represents an effort to further stress the consensual chara-
cter of the jus cogens norms as peremptory norms at a time
that its establishment was threatened by the vagueness of draft ar-
ticle 50 and the ambiguous position taken by the International Law
Commission and a number of representatives in the Conference.
By further emphasizing the necessity for a second, special con-
sent, the Drafting Committee succeeded in silencing the proponents
ofa jus naturale approach to the question of peremptory norms
and in excluding the identification of these norms with the rules of
general international law. It achieved, in other words, a formula which
clearly and unequivocally rejected any jus naturale allusion
that might have been suggested by the work of the International Law
Commission as well as the express or implied contention of a num-
ber of representatives that any rule of general international law was
automatically, by that fact, a‘ jus cogens norm.
From a theoretical point of view, the latter assumption appears
quite erroneous. Certainly, not all rules of general international law
would necessarily be of an importance justifying their having a pe-
remptory character. One may think of present rules of general inter-
national law which may very well be modified through inter se
agreements without any threat to the international legal order or to
the consenting States.5> Therefore, one cannot imagine why States

54. There are some writers claiming that the admission of the general prin-
ciples of law in the international legal order introduces a non-consensual legal
element in international law. Beside the fact, however, that there exists some con-
vincing argumentation to the contrary, it should also not be forgotten that the
admission of an extraneous element in internationallawis a conscious concession
made by States through their consent, valid for as long as they do not commonly
otherwise decide. For a bibliography on the general principles of law see supra,
note 25 (Chapter II).
55. For example, some rules concerning privileges and immunities of diplo-
matic representatives may easily be modified inter se without harm to the
international society, to the consenting States or to the envoys tremselves. This
being true, States are not likely to consider these rules (or, at least, some of these
rules) as jus cogens norms. :
76 The Concept of Jus Cogens

should put bonds upon their contractual freedom in cases like the a-
bove simply because a rule is a rule of general international law.
But even general rules of international law of an admittedly fun-
damental importance according to the opinion of political observers
and writers of international law, are not, for that fact jus cogens
norms. There may be cases where States will not consent to abandon
their contractual freedom in order to be bound by a Jus cogens
norm, feeling that a certain elasticity in their inter se relations
would be more desirable.
The dissociation of the jus cogens norms from any natu-
ral law postulates and any general presumptions of imperative chara-
cter through the addition of the requirement of the second consent
was indispensable. For being imported from the municipal legal sys-
tems, the jus cogens concept is suggestive of a notion of pro-
tection toward the fundamental legal rules and social values. This
fact could easily create a confusion concerning the exact character of
the international jus cogens and lead to an uncontrollable si-
tuation which, given the peculiarities of the international legal system,
could result in the abusive utilization of the concept.
A misapplication of the jus cogens concept could include
the arbitrary assumption that some rules are fundamental without
it necessarily being so, or the assertion that all fundamental rules may
automatically be considered as jus cogens_ norms. The test of
«double consent» excludes such possibility. By its inclusion in article
53, the consent of the States of the international community to the
peremptory character of a rule becomes the sole criterion to be ta-
ken into account. All other considerations such as the general nature
of a rule, its moral, ethical, or «constitutional» status are insufficient
to legitimize such rule as a jus cogens norm.

The addition of the «double consent» requirement was indeed a

major breakthrough toward the exclusion from the lex lata of
any non-consensual elements and an indication of the perseverence
of States in the element of consent as the sine qua non pre-
requisite for any development wrought in international law.
The acceptance and recognition of a rule of general international
law asa jus cogens norm is to be made, according to article
53, by the international community of States as a whole. No problem
seems to exist with respect to the construction of that part of the ar-
ticle. The only question which seems to arise in this context is the
The Identification of the Jus Cogens Norms 77

exact meaning of the words «as a whole» which qualify the phrase
<anternational community of States».
The words «as a whole» first appeared in the draft submitted by
the Drafting Committee for final consideration to the 80th meeting of
the Committee of the Whole,*® and had been added to the text of
article 50 by the initiative of that body. As was explained by the
Chairman of the Drafting Committee to the Committee of the Whole
that initiative was taken because it had appeared from the discussions
of the Committee of the Whole prior to the submission of the draft
to the Drafting Committee, that no individual State should have the
right of veto in the determination of arule asa jus cogens norm.
Therefore, explained the Chairman, the Committee felt it advisable
to add the words «as a whole» to the text of the draft article to that
effect.” In further explaining the necessity for inserting these words,
the Chairman stated:
By inserting the words «as a whole» in article 50 the Drafting
Committee had wished to stress that there was no question of
requiring a rule to be accepted and recognized as peremptory by
all States. It would be enough if a very large majority did so;
that would mean that, if one State in isolation refused to accept
the peremptory character of a rule, or if that State was suppor-
ted by a very small number of States, the acceptance and reco-
gnition of the peremptory character of the rule by the interna—
tional community as a whole would not be affected.*®

The interpretation of the words «as a whole» in the context of

article 50 (final article 53) given by the Drafting Committee illustra-
tes in an unequivocal way the position of the drafters: 1t appears that,
as is also the case with the notion of general international (customary)
law, a presumption works in favour of a general rule as being a jus
cogens norm if it is proved that it is accepted and recognized by
the wide majority of States as such, namely as Jus cogens.

56, A/GONF. 39/C. 1/11.A

57. UNCLT Official Records, Irst Session, 80th meeting of the Com-
mittee of the Whole. Paragraph 7 of the text containing the introduction of the
President of the Drafting Committee, Mr. Yasseen, to the redrafted article 50 re-
ads : «It appeared to have been the view of the Committee of the Whole that no
individual State should have the right of veto, and the Drafting Committee has
therefore included the words ‘as a whole’ in the text of article 50.»
Fao} LE Io) aol
78 The Concept of Jus Cogens

What the Committee seems to imply is, in other words, that ifa
rule is one of general international law and if, furthermore, there exists
substantive proof that the rule is accepted and recognized by the
international community of States «as a whole» as a rule from which
no derogation is permitted, that rule isa jus cogens norm bin-
ding upon the entire international community. In consequence, a State
can no longer be dissociated from the binding peremptory character
of that rule even if it proves that no evidence exists of its acceptance
and recognition of the specific function of that rule, or, moreover,
that it has expressly denied it.
It follows that the presumption on the peremptory character of
a rule is not rebuttable. If it were, one would have to accept that two
or more States, or a group of States, which deny the existence of a
jus cogens norm are free to contract out of that rule thus crea-
ting a contrary legal regime. Such a situation, however, would be
absurd since it would defeat the very purpose for which the jus co-
gens norms have been introduced in positive international law, na-
mely, the preservation of the uniformity of the international legal or-
der in those areas where social considerations should prevail over in-
dividual interests.°?

59. It would be really absurd to consider that a norm of jus cogens such
as, for instance, the prohibition of war, does not apply to the entire community,
and that, therefore, two or more States may deny its peremptory character and
contract out of its ‘provision. Apart from a legal confusion, such possibility would
create considerable practical difficulties. Deleau, a member of the French delega-
tion in the Conference, writes in this respect («Les positions frangaises ala Con-
férence de Vienne sur le Droit des Traites», 18f) : «Cette formulation [da commu-
nauté internationale des Etats dans son ensemble»] méme implique que tous les
Etats n’ont pas nécessairement participé au ‘consensus’ qui a reconnu le caractére
impératif a une régle donnée: dés lors, ’Etat qui n’aurait pas participé a cet
accord de volontés, sans pouvoir prétendre empécher la communauté internatio-
nale d’élaborer des régles impératives qui seraient susceptibles de constituer une
évolution utile du droit, et méme en s’y associant toutes les fois que cela parai-
trait possible, devrait pouvoir se tenir a l’écart et ne pas se voir obligé d’admettre
comme impérative une régle qui n’aurait pas, poursa part, expressément acceptée
et reconnue comme telle.
Toutefois les auteurs de cette idée admettaient que le cas devait étre comme
exceptionel et que l’Etat qui voudrait refuser de reconnaitre une norme impéra-
tive devrait avoir la charge de la preuve du fait quwil n’a pas participé au consen-
tement général. Il aurait, par exemple, & démontrer qu'il n’a signé aucun traité
multilatéral général ou quwil n’a jamais voté en faveur d’une résolution établis-
sant une telle norme: ainsi par exemple lattitude d’abstention que la France a
The Identification of the Jus Cogens Norms a9

It should nevertheless be specified that the non-acceptance and

non-recognition of a jus cCogens norm by one or more States,
duly substantiated by evidence to that effect prior to the emer-
gence of the norm as one of jus cogens (or in a consistent man-
ner after there has been indication of what the rule means for the
international community) are to be judged as evidential material for
the determination of a disputed rule asa jus cogens norm. The
test «as a whole» means that in order for a norm to acquire and re-
tain a peremptory character, it must enjoy the special consent of the
wide majority of States. Although the exact number of the required
consents is not to be determined a priori (nor, necessarily, to be
found in concreto_ in the specific evidential search) since a
number of considerations, other than the numerical one,® must be
taken into account, the existence of contrary practice by a number of
States weakens the evidential position of that norm.

toujours observée dans les votes aux Nations Unies sur la résolution 1514 (XV)
relative a la décolonisation et sur toutes celles qui s’y réferent pour en reprendre
les idées ou en appliquer les principes aux cas de territoires particuliers, pourrait
lui permettre de prouver qu’elle n’a pas participé a l’acceptation et ala reconnais-
sance par la communauté internationale dans son ensemble, des notions qui y
figurent (a supposer - c’est qui n’est pas le cas - qu’elles aient le caractére de reé-
gles de droit) et que par conséquent on ne saurait les lui imposer contre son gré».
France prepared an amendment to draft article 50 to make clear the above
described position. Deleau writes on that matter (ibid., 19): «A cette fin, il avait
été élaboré un projet d’amendement qui aurait ajouté au libellé de l’article 50
un deuxiéme alinéa se lisant comme suit : Toutefois une telle norme n’est pas op-
posable a un Etat qui peut faire la preuve qu’il ne l’a pas acceptée expressémment
en tant que telles.
Sans doute aurait’on put objecter qu'une certaine opposition existe entre cet
amendement et l’alinéa précédant. Certes il y a contradiction si le jus cogens
est concu comme un droit imposé par les Etats au nom de la loi du nombre a un
seul, mais il n’y pas incompatibilité si le jus cogens est interprété comme ré-
sultant de la détermination par les Etats qui y consentent, et pour eux, d’une
catégorie supérieure de normes auxquelles les autres régles ne peuvent déroger,
Pour le gouvernement francais, cette conception est la seule qui assure le progres
de l’ordre international dans le respect des volontés nationales».
However, this amendment was never officially proposed by France because
it did not find, as Deleau admits, enough support by the States to which it was
submitted. In explaining this lack of support Deleau writes that it was owed to
the fear of States that any further amending effort would threaten the achieved
improvement of article 50, however insufficient it seemed to be.
60. For example, frequency, volume, consistency of State practice lato
sensu, judicial decisions, writings of publicists, e t c.
80 The Concept of Jus Cogens

Indeed, one cannot accept that the words «as a whole» have an
infinite elasticity permitting over-generalizations based on a limited
State practice or on a restricted number of judicial decisions and
the preparedness of the doctrine to hasten to conclusions which are
not substantiated by considerable evidence. A Jus cCogens norm
is a vehicle of the most serious sanction in the international legal
system and for that reason it should be treated very carefully. The
test of the words «as a whole» must therefore be construed as strictly
as possible; in consequence, all manifestations of contrary State
will should represent a serious element in the assessment of the jus
cogens character of a given rule and a useful weapon in the hands
of the community.
The non-rebuttable character of the presumption on the perem-
ptory character of a rule can also be based on the fact that if States-
parties to the Vienna Convention accept the interpretation of the words
«as a whole» as meaning the wide majority of States of the inter-
national community, they should also accept the process of determi-
nation of the jus cogens norms implied through that formula.
In other words, if the phrase «as a whole» means, as any good
faith student of the international matters would concede, that a jus
c¢ogens norm which has been accepted as such by the wide majo-
rity of States, is binding on all other States, which have not ex-
pressly recognized it accepted it as such, or which have expressly
denied its peremptory nature, then consent to the letter of article 53
should mean consent to that interpretation. This would mean in fact
the exclusion of the right of veto on the part of any contesting State.
The presumption on the peremptory character of a rule should,
in principle, work in the same manner as the presumption on the ge-
neral character of customary rules.*! Furthermore, it should be valid
for both customary and conventional law. In the latter case, ho-
wever, it should be valid only if the treaty containing the jus co-
gens norm does not expressly specify that the character of that
norm is imperative. If it does, the question of proof does not arise
and, hence, resort to the presumption is not needed.
The construction of the Drafting Committee regarding the words
«as a whole» did not dissipate the fears of some States that the ad-
dition of these words could change the character of the test of arti-
cle 50 (present article 53). In expressing this fear, the Ghanaian de-

UE SU OWE A Ey eK
The Identification of the Jus Gogens Norms 81

legation felt that the idea expressed through these words was already
implicit in the concept of the «international community of States»
and that they «might therefore be interpreted otherwise than in the
sense indicated by the Chairman of the Drafting Committee».®
What the Ghanaian delegation feared was that the construction
of the Drafting Committee with respect to the words «as a whole»
would be superseded by a much stricter interpretation according to
which in order for a rule of general international law to be a jus
cogens norm, it should be accepted as such by all the States
of the international community without exception. The Ghanaian de-
legation was presumably thinking of the possibility that States-parties
to the future Vienna Convention would try to impose their own con-
struction on the matter. Indeed, nothing could prevent some States
from claiming that the words «as a whole» imply a universal accept-
ance and recognition.
Yet such contention could only result from a mala fide con-
struction. In a legal system which is predominantly based on good
faith, an interpretation of this kind would mean either, (a) that the
contending States did not take into consideration the transparent ex-
planation of the Drafting Committee, which, though not perhaps an
authentic one, in the accepted sense of the word, ® is not, neverthe-
less, a casual part of the preparatory work, since it was approved both
by the members of the Commission and by a large majority of the
members of the Committee of the Whole through a special voting to
that effect,® or, (b) that the contending States simply ignored the
fact that article 53 refers to «norms of general international law» and

62. UNCLT Official Records, lrst Session, 80th meeting of the Com-
mittee of the Whole. The discussion on the advisability of retaining the words «as
a whole» ended up in a special vote on the matter. The phrase was approved du-
ring the 80th meeting by 57 ‘votes to 3 with 27 absentions.
63. By authentic (authoritative) interpretation is meant the interpretation
given by all the parties to an agreement upon or after its conclusion through so-
me express means of legal significance. Cf. Rousseau, Droit Internati-
onal Public, 243 ff; Schwarzenberger, International Law, 53lf.
64%. Indeed, there were 57 votes in favour and only 3 against (see supra,
note 61). Schwarzenberger (ibid.) writes in this context : «If, in the course of the
negotiations, parties agree on the interpretation of particular articles of a trea-
ty, but do not incorporate such an understanding into the treaty itself, such docu-
ments form part of the preparatory work. They, however, are of such probative va-
lue that the typical objections to undue reliance on travaux préparatoi-
res hardly apply to evidence of this kind.»
6
82 ‘The Concept of Jus Cogens

not to «norms of universal law» thereby implying that a rule not ac-
cepted by the totality of the international community may never--
theless be a jus cogens norm; so that it would be absurd to
hold that the number of States accepting and recognizing the perem-
ptory character of a norm should be greater than the number requi-
red for the establishment of its general character; or, finally, (c) that
the contending States did not take into consideration the general
patterns which are followed today by the international community,
outside the Vienna Convention, in the determination of the consent-
giving methods.
Despite, however, the convincing interpretation of the Drafting
Committee and the reasonableness of the above arguments (of which,
surely, the representatives in Vienna were not unaware), the Records
of the second session reveal the persistent reluctance of some States
to admit the expediency of the phrase «as a whole» and their doubts
as to whether it really added to the clarity of the test of identifica-
tion.® France expressed these fears quite eloquently in the following
observations:
The lack of precision as to the way in which norms having the
character of Jus cogens came into being was not removed
by the present wording of the article. What was meant by norms
defined as norms «accepted and recognized by the international
community of States as a whole»? Did that mean that the for-
mation of such norms required the unanimous consent of all Sta-
tes constituting the international community, or merely the as-
sent of a large number of States but not of them all? If the lat-
ter, how large was the number to be and what calculations would
have to be resorted to before it would be admitted that it had
been reached? Who would decide in the event of a dispute? If,
as was to be hoped, a system of compulsory arbitration was a-
dopted, the arbitrator would be saddled with that task, and he
would have to have wider latitude to judge than he had in nor-
mal cases, since he would be called upon to make law, not me-
rely to interpret existing law.®

65. See UNCLT Official Records, 2nd Session, 19th-20th Ple-

nary meeting.
66. UNCLT Official Records, 2nd Session, 19th Plenary meeting.
The Identification of the Jus Gogengs Norms 83

Clearly, what characterizes the above lines is not a simple con-

cern over the possible prevalence of a strict interpretation of the words
«as a whole». It is a deeper apprehension felt by a number of States
regarding the adequacy of the test of article 53 and its successeful fun-
ction in the international legal system. States were more generally con-
cerned over the possibility of arbitrariness that the very introduction
of the jus cogens norms might entail in the decentralized inter-
national system, feeling that the text of article 53 was not sufficient
to discourage abuses to the detriment of the stability of internatio-
nal agreements.
Article 53 does not represent, it is true, the optimum of le-
gal wisdom. Although it was intended to provide law on a very de-
licate and unsettled matter, it provided neither any examples of jus
cogens rules in its text nor a clear definition comprising all the con-
stituting elements of the concept of international jus cogens. Ar-
ticle 53 is simply a compromise between two clearly opposite trends
which emerged in the Vienna Conference: the trend favouring an
elastic approach to the concept and the trend favouring the most
legal (one might even say legalistic) approach.
As a compromise, the letter of article 53 is not a failure. On the
contrary, the test contained in the article should satisfy both camps
without any threat of constant stalemates and endless disputes, pro-
vided that it will be applied on a bona fide basis. Moreover,,
‘the article does not deviate from the ordinary patterns of consent - gi-
ving as accepted by the international community. Indeed, one may
say that the radical element of article 53 lies in the concept itself
which the article introduces in international law and not in its ra-
ther traditional treatment of this concept; the latter was however in-
dispensable in order for the concept to be accepted by the large ma-
jority of the international community.
Furthermore, it must be stressed that article 53 is accompanied
by article 66, alinea (a), of the Convention dealing with the compul-
sory settlement of disputes arising out of the application or interpre-
tation of that article, (as well as of article 64).° This fact will un-
doubtedly enhance the objective determination of the Jus cogens
disputes over the application or interpretation of the test of article
53. The determination of such disputes is relegated to the Internatio-
nal Court of Justice; consequently, the high authority of that Court

Giana ae Oo @ 1, Sec.
84 The Concept-of Jus Cogens

will unquestionably assist, in the early stage of the application of the

Vienna Convention, the clarification of the test of article 53, most pro-
bably on the basis of the will of the majority of States as imprinted
in the records of the Vienna Conference. It is also possible that, ba-
sed again on the expressed will of States, the Court will develop a ju-
risprudence indicating a number of Jus cogens norms as Cur-
rently functioning in the international system.
In the light of these considerations — the. existence of a strict and
realistic test and the possibility of compulsory determination— it ap-
pears that the fears of some States were exaggerated. Article 53 may
successfully work in the organized system provided by the Vienna Con-
vention in its present form, without further definitions or more se-
vere tests which could render the concept of jus cogens of no-
minal value for the international legal system.
 CHAPTER II

THE MODIFICATION OF THE JUS COGENS NORMS

Article 53 of the Vienna Convention stipulates that

[a Jus €ogens norm] can be modified by a subsequent norm

of general international law having the same character.

This phrase which is to be found in the last sentence of the ar-

ticle, indicates two things: first, that a Jus cogens norm is mu-
table as are all rules of law; and, secondly, that a norm of that cha-
racter must undergo a specific process of modification which is distinct
from and stricter than the one applying to all other rules of interna-
tional law.
The mutable character of the ]us cogens norms was propo-
sed at a late stage of the drafting of the relevant article by the In-
ternational Law Commission. Waldock was the first Special Rappor-
teur to clarify the exact legal nature of the concept of Jus cogens
in his draft, and to propose the mutable character of the norms in-
corporating that concept in the international legal system. Article 4
of his draft specified that
Jus cogens means a peremptory norm of general interna-
tional law from which no derogation is permitted except upon
a ground specifically sanctioned by general international law and
which may be modified and annulled only by a subsequent norm
of general international law.'

Also, paragraph 4 of article 13 of the same draft stipulated that

the provisions of this article do not apply, however, to a gene-

4 Supra, 13f.
86 The Concept of Jus Cogens

ral multilateral treaty which abrogates or modifies a rule having

the character of jus cogens.?

The above two draft proposals constituted the first indications

of a change in the attitude of the International Law Commission to-
ward the concept limiting the autonomy of the will of States. Indeed,
being predominantly concerned with its specific function, the first
three Special Rapporteurs had not formulated the concept into well
defined rules of international law. Moreover, the discussions of the Com-
mission seldom touched on the question of the mutable character of
the norms having that character. When such discussions did take place,
they were occasioned by the more general problem of the exact le-
gal basis of the concept. Actually, a perusal of the Records of the
Commission indicates that there was a tendency on the part of some
of its members to adopt a position on the matter which was based on
sociological considerations bordering on naturalistic views.? However,
a considerable part of the members of the Commission opposed such
notions and preferred to delineate the power of the jus cogens
concept in strict legal terms. )
Eventually, this latter position prevailed, as can be seen in the
drafts of Waldock, who made serious efforts to completely dissociate
the concept of jus cogens_ from characteristics which seemed
to depart from the consensual basis of international law. The draf-
ting, therefore, of the clause on modification may be regarded as re-
flecting precisely the conviction of the majority of the members of
the Commission that a norm of jus cogens, being a consensual
rule, may be modified as all other rules of law if the international
community of States so decides.
In other words, the formula on modification contained in the last
sentence of the substantive article on jus cogens, which was
accepted by the representatives in the Vienna Conference with no fur-
ther alterations, gives an idea on how the jus cogens norms

Qa lbatd:
3. One of the basic elements of natural law is, according to many propo-
nents of the jus naturale, ite immutable character. Many natutalists have
contended that the natural laws are immutable and inseparably connected with
the very world existence (Pufendorf, Grotius), while others have maintained that
not al! ru'es of natural ,aw are immutable but only the fundamental ones upon
which others, less funtamental, rest (Wolff, Vattel). Cf. Nussbaum, A Conci-
se History of the Law of Nations, 147 ff.
The Modification of the Jus Cogens Norms 87

are conceived in the context of the international legal relations. The

proposal of a clause on modification by the International Law Com-
mission and its acceptance by the Vienna Conference has shown that
both believe that the international legal system, as all legal systems,
is a dynamic order, and that the jus cogens norms serve not
only the fundamental social values but also some of the basic inten-
tions of the international community which are not necessarily immu-
table or irrevocably rooted in the social conscience of States.
Indeed, the fact that the norms of jus cogens can be mo-
dified seems to imply the acceptance of the fact that the changes which
the international society, as a dynamic order, undergoes inevitably
render obsolete some rules of law which used to govern situations which
have been substantially modified. Since, therefore, law cannot lag be-
hind the realities of a society, the obsolete rules should also be abroga-
‘ted or modified to be adjusted to the new needs. One cannot certainly
‘conceive of a legal system which may change so radically as to need
a fundamental eradication of all the rules which constitute its foun-
‘dation. Such changes, usually resulting from thorough transforma-
tions in a social system, are neither frequent nor achieved through the
ordinary processes; when they do occur, moreover, legal rules are the
last thing to be taken into account. Therefore, the clause on the mo-
dification of the jus cogens_ should not be regarded as inten-
ded to cover such drastic changes. Indeed, what seems to be the spi-
rit behind the letter of article 53 is that the norms of jus cogens
arenot necessarily, or exclusively, the basic constitutive norms of the
international legal system, but simple, the rules which are considered by
the international community as having the jus cogens function
even if they serve purposes limited in time and of no fundamental
value for the social order, in the strict sense of the term.

4. Diaconu (Contribution a4 une Etude sur les Normes Im-

pératives en Droit International, 101) by observing that «[c] ertes
on ne pourrait pas concevoir pratiquementa présent que des normes comme l’in-
terdiction du génocide, de l’ésclavage, de l'emploi de force puissent entre modifiées
dans le sens de limiter ou d’ abroger ces interdictions...» either considers that the
jus cogens are immutable -a thing which is excluded by definition - or acc-
epts that there can be a number of rules, which though of ajuscogens
character are nevertheless subject to modification without harming the substance
of the intarnational legal system. [However, what he considers as a modification of
the norms which he proposes as being j us cogens is illustrated in the following
lines : «ll n’y a pourtant aucun doute que des modifications pourraient interve-
88 The Concept of Jus Cogens

If seen from that angle, the mutable character of the jus co-
gens norms may be easier understood and accepted. As has been
already stressed, the international legal order has become one of com-
plex relations and exhanges. Therefore, beyond the fundamental con-
stitutive rules of the international system, there must be a uniform
legal substructure underneath each specific field of international law, on
the basis of which the particular rules of that field will have to work to
the benefit of the interested subjects of law. The creation of such sub-
structure would be best achieved through the jus cogens norms.
It follows easily, then, that such norms could not be immutable since
the pattern of relations and the problems involved in any particular
field of international law may at some time change for a number of
reasons. In such a case, the legal substructure created by the jus
cogens norms would also have to change so as to be adapted to
the newly emerged patterns. Clearly, this could never be achieved if
the jus cogens_ norms were not accepted as mutable.

The questions which arise next relate, (a) to the exact meaning
of modification for the purposes of the Vienna Convention, and (b) to
the way in which such modification can be achieved in accordance
with article 53.
The meaning of modification should normally cover all changes
of the content of a legal rule effected by an authoritative act, namely
an act of legal import. The degree of such change could range from
a slight alteration of only a part of the rule to the complete extin-
ction of that rule from the international legal system. In the sphere
of customary law, a modification could probably be attained through
State practice, lato sensu, resulting in the extinction of the old
rule, or through the emergence of a new customary ruleof the same
field of applicability ratione personnae. In conventional
law it could be effected in the same way, or through the revision, in
whole or in part, termination or extinction of the treaty which carries
the rule of law following the consent of the parties.
However, according to article 53 of the Vienna Convention, the
modification of a Jus cogens norm must be brought about only
through a subsequent norm of the same character. This

nir, dans le sens d’élargir la portée de interdiction établie par de telles normes.
En tout cas, lidée de l’évolution caractérise le droit international dans son ensem-
ble, y compris donc les normes impératives... (ib id) ].
The Modification of the Jus Cogens Norms 89

strict requirement of the article apparently limits the above indicated

methods of change to modification only through a general customary
or conventional rule of jus cogens. The new rule must be sub-
sequent ratione temporis to theold jus cogens norm
and cover, ratione materiae, the same field of State con-
duct. It may partly or totally modify the legal regime of the old norm;
or —although this is a purely theoretical case —it may solely pro-
vide for the extinction of the previous norm without substituting to
it any new rule providing a novel legal arrangement. ,
A general customary rule may modify a prior jus cogens
norm either directly, if the latter is also a customary rule, or indi-
rectly, if the old norm is a conventional rule. The modification takes
place simply on the basis of the time of the emergence of each rule
and the legal axiom according to which a posterior rule can extinguish
apriorrule (lex posterior derogat legem priorem).
In theory, the modification of a general customary rule of jus
cogens by another general customary rule would seem impossible.
Indeed, a general customary rule of jus cogens does not allow
any contrary practice or the existence of any treaty conflicting with
its content. Hence, the means by which States express themselves, na-
mely unilateral acts or inter se agreements which evidence their
legal conviction, are restricted by the prohibitive-imperative cha-
racter of the jus cogens norm: any kind of contrary activity
by States having a legal import is simply a violation; it does not cre-
ate Jaw.®
Yet in practical terms such change is feasible even in the sphere
of decentralized State relations; indeed, if a State, or group of States,
presents some lato sengsu_ practice which is contrary to the con-
tent of an established jus cogens norm and if that practice
is not protested or sanctioned by the interested States (or by the in-
ternational community) but, on the contrary, is imitated by the ma-
jority of States, then a new general customary rule emerges in the
place of the old jus cogens norm, extinguishing the latter and,
naturally, its imperative character.
This simple process of change which applies in the international
legal system from time immemorial is apparently not accepted as a
legitimate means of change by the letter of article 53. The requirement

5b Cla eu pra, 24,

90 ; The Concept of Jus Cogens

of that article according to which only a rule of general international

law having the character of jus cogens can modify a prior norm
of the same nature is really strange. It would be self-defeating to ar-
gue that a posterior general rule of customary law cannot modify as
a prohibitive (but not necessarily imperative) rule any other
rule prior to it of the same nature and covering the same subject-mat-
ter. The very fact that it is a general rule proves that the great ma-
jority of States consider it as the sole legal rule on that matter at
that specific time. In consequence no other rule may simultaneously
exist except for particular rules, and these only to the extent that they
do not influence by their frequency the standards applying with respect
to the term «general rule».
If one does not accept the above proposition as valid, then one
has to accept one of the following: either that the collective will of
the States of the international community is unable to change a
rule of customary law (if that rule is a jus cogens norm) by
another general customary rule which is dispositive in character; or
that the international order can afford to have at the same time two
general rules of customary law governing the same field of internatio-
nal relations, the first representing the more recent legal conviction
of States as to the way that they consider appropriate to govern their
relations, the second owing its validity to its jus cogens Cha-
racter and the dispositive character of the posterior general rule. These
incongruities may be avoided, of course, if one accepts that a gene-
ral customary rule has the power to change, by the very fact of its
having become general, all prior rules of law including those having
the character of jus cogens.
Beyond the fact that a posterior general customary rule has the
power to modify a prior Jus cogens norm of customary origin,
it also has the power to modify a conventional rule of general inter-
national law having a jus cogens character. If the parties to
a general treaty containing that norm develop a practice through the
normal channels of expression of their opinio juris which con-
flicts with the letter of the old conventional law (or, more generally,
with the treaty as a whole), then that fact is not a violation of the
letter of the treaty — since there is a consensus between the parties
—but a de facto modification or revision of the conventional
rule or the treaty by a new rule emerged from their practice. The

6. As Schwarzenberger (International Law I, 535) puts it : «The

The Modification of the Jus Gogens Norms 91

result of such de facto modification (or revision) is that the old

rule of Jus cogens ceases to validly function in the internatio-
nal legal system.

The preceeding discussion referred to the modification of a jus

cogens norm of customary or conventional origin by a posterior
rule of general customary law. It is not, however, only a posterior ge-
neral customary rule which may modify a prior jus Cogens norm:
the modifying rule can also be one of general conventional law.
The International Law Commission has conceded that a treaty
enjoying general participation is the most probable means by which
States will modify a jus cogens norm of customary or conven-
tional law.? The element of general participation in a treaty is con-
vincing evidence of the opinio juris of the international com-
munity towards a specific legal arrangement. If, therefore, the wide
majority of States become parties to a treaty providing law conflict-
ing with previously existing rules of customary or conventional law
even if these rules were of }us cogens character, then it must
be assumed that the will of the States was to extinguish or modify
the old legal regime. The same also applies with respect to the jus
cogens character of the old norm, even if the new law is not jus
cogens in character. For it goes without saying that if a rule cea-
‘ses to be general, it certainly ceases to be a jus cogens norm
as well.
The stipulation of article 53 that a norm of jus cogens must
be modified only by another norm of the same character is a quite
strict requirement, totally unrealistic and incompatible with the tra-
ditional and still valid patterns of the law-making processes in the in-
ternational order. The intention of the drafters was presumably to re-
strict the changing process of the jus cCogens norms in order
to protect them from frequent inferences of change. That protective
measure, however, is in conflict with the usual practice of change in
the international legal system and is bound to create unecessary con-
fusion. Moreover, and this is of particular significance, the provision

problem arises whether a treaty can be modified or abrogated by a subsequent ru-

le of international customary law. It follows from the dispositive character of inte-
rnational customary law that this can happen only with the full consent of all the
parties to such a treaty. If parties to a treaty accept a subsequent practice as law,
this amounts to a tacit modification or abrogation of the treaty.»
He Vl One el Br
92 The Concept of Jus CGogens

on modification openly contradicts the provision on the definition

of the jus cogens_ norms. Indeed, article 53 enunciates that a
norm of jus Cogens is a norm’of general international law ac-
cepted and recognized by the international community of States as
a norm having that particular character. In consequence, a norm which
is not accepted as a norm of general international law and/or as a
norm of jus cogens (or ceases to be accepted as
such through the traditional processes of Chan-
ge) cannot be a norm of jus cogens. From that point of
view, therefore, the specific requirement of the clause on modification
would appear redundant and irrelevant.
Instead of relying on the rather unhappy requirement of the clause
on modification it would be easier and safer to examine more specifi-
cally when a Jus cCogens norm ceases to be of that nature be-
cause it no longer fulfils the basic requirements of its definition. First
of all, a jus cogens norm ceases to be of that nature when it
loses its status as a rule of general international law. That may hap-
pen in various ways. It may happen through the emergence of State
practice indicating that the wide majority of States no longer consi-
ders that norm as a rule governing their relations; or, through the
emergence, again through State practice, of a new rule of general in-
ternational law having the same field of applicability ratione ma-
teriae and providing for a novel legal regime; or, finally through
the conclusion of a general treaty on the same subject-matter. In
other words, a rule of general international law ceases to be of that
nature whenever there is substantive evidence of a withdrawel of the
legal conviction of the wide majority of States which previously used
to support it.
The result of the withdrawal of the legal conviction of States
from a specific legal rule is that the rule cannot be one of jus co-
gens for the purposes of the Vienna Convention and is, therefore,
modified or, better, extinguished asa jus cogens norm. It may
continue to be a rule of law for those States which have not with-
drawn their conviction or, moreover, it may continue to be conside-
red as a peremptory norm by those States agreeing on its having that
nature. But it cannot be anymore a rule of jus cogens ag con-
ceived by the Vienna Convention.
Secondly, a jus cogens_ norm ceases to be of that nature
when it loses its status as a peremptory norm of general internatio-
nal law, though possibly retaining its status as a rule of general in-
The Modification of the Jus Cogens Norms 93

ternational law. Loss of peremptory character may be caused if there

is enough evidence that States no longer consider the rule as a perem-
ptory norm. Presumably, the non-avoidance of treaties conflictingg
with a jus cogens norm by the international community evi-
dences the latter’s tolerance vis-a-vis their legal regime and its chan-
ging conviction with respect to the violated norm of jus cogens.
When such tolerance becomes proof of a withdrawal of the consent
of the international community to the jus cogens character of
a norm is, of course, a matter to be examined in each individual case
on the basis of the special test (on the jus cogens character)
of article 53. It may also be assumed that the withdrawal of the con-
sent of States towards the jus cogens character of a norm may
be proved more directly by the express agreement of the internatio-
nal community: that may take the form of a resolution in an inter-
national organization, a common declaration, or the adoption of a tre-
aty which, though possibly retaining the ex-j]us cogens norm,
makes it clear that the rule is no more a jus cogens norm but
a dispositive one. Such indications would be enough to transform the
jus cogens norm into a dispositive rule which may retain its pro-
hibitive character only in the domain of unilateral activities of States.

The modification of the jus cogens_ norms, as it can be

inferred from the test of identification of article 53, is not to be attained
exclusively by the emergence of anew rule; it may also be brought
about by other accepted means of change which, while modifying the
old jus cogens norm, are not, strictly speaking, law-creating pro-
cesses. To take but one example, a jus cogens norm may be
modified (or rather extinguished) by the termination of the treaty con-
taining it. The termination of such treaty does not, in anyway, substi-
tute to the old conventional norm a new rule of law. In consequence,
a legal lacuna will be created in the place of the old jus co-
gens norm following such termination for as long as a new rule
does not emerge to cover the gap.

In concluding the discussion on the modification of the jus co-

gens norms in accordance with article 53, two recapitulating obser-
vations must be made. First, article 53 rightly provides for a possibi-
lity of modification of the jus cogens norms. The International
Law Commission, which first proposed the formula of modification,
has indeed conceived the necessity for development and change which
94 The Concept of Jus Gogens

is an inherent characteristic of any society, national or international,

and the attendant need of flexible legal rules, capable of being adapted
to such changes. .
It is, however, unfortunate that the draft article of the Commis-
sion, as well as the final text of the clause on modification, does not
provide for a way of modification in accordance with the traditional
processes of change prevailing today in the sphere of international
law, or simply stipulate in a general fashion that the Jus cogens
norms are mutable without further specifying the terms of modifica-
tion. Instead, the clause provided by that article defies both the tra-
ditional patterns of change and the definitional part of article 53 which,
if interpreted on the basis of those patterns (and nothing dictates the
contrary), provides for a method of modification quite distinct from
that of the last phrase of the same article.
The proposed method of modification reveals the failure of the
«legislative» bodies of the Vienna Convention to reconcile the need
of a realistic drafting which, if fulfilled, would make the article ef-
fective, with that of an emphasized severity which appears indispen-
sable in a legal system whose subjects so often avail themselves of
all possible loopholes at their disposal. For there is no question that
the rationale behind the strict requirements of that clause was to com-
plicate the modification of established jus cogens norms in
order to safeguard them from easily drawn presumptions of change.
It is to be hoped that the requirement of article 53 will not cre-
ate serious problems of application, and that it will be either modified
by the future parties of the Vienna Convention or, at least, de fa-
cto revised through the future application on the Convention.
 CHAPTER IV

THE SANCTIONING POWER OF THE JUS COGENS NORMS

Both articles 53 and 64 belong to Part V of the Vienna Convention,

entitled Invalidity, Termination and Suspension
of the Operation of Treaties. However, while article
53 falls under section 2 of Part V dealing with the invalidity of trea-
ties, article 64 belongs to section 3 of the same part, dealing with the
termination and suspension of the operation of treaties.1
It would appear, therefore, that the Vienna Convention distingui-
shes two different kinds of sanction affecting treaties violating a jus
cogens norm, a distinction which is, in principle, set forth by the
classification of the two articles carrying these sanctions under two
separate sections.
The difference in character between the two kinds of sanction pro-
vided by articles 53 and 64 is further emphasized by the special wor-
ding used by the Convention in each of the two cases. While, that is,
in the case of article 53 the phrase «a treaty is void» is emplo-
yed in order to convey the sanctioning effect of that article, in the
case of article 64 the corresponding phrase is «a treaty becomes
void and terminates». It would seem, then, that the key
to the understanding of the nature and scope of the sanctioning po-
wer of the jus cogens norms under the Convention, in other
words of the types? of sanction affecting treaties conflicting with

4,UNCL TD 0-crm en ‘tis; 295-297.

2. By «type of sanction» or «type of invalidity» is meant the nature of san-
ction that a legal system imposes on legal acts violating a condition of validity, and
which varies in accordance with the degree of seriousness of the violation. The two
basic types of invalidity in the European systems are absolute nullity and relative
nullity. Another type in these systems is the annulability (annulabilita del
negozio in Italian law, anfechtbar in German law, annulabilité
in French law). Anglo-American law provides a type of invalidity which is almost
96 The Concept of Jus Cogens

such norms, is to be found in the exact meaning of each of these ap-

parently different phrases.
However, an appraisal of the sanctioning power of the Jus co-
gens norms exclusively based on the examination of the substan-
tive jus cogens_ provisions of the Convention on the Law of
Treaties would be of a purely theoretical value. In its effort to deter-
mine the types of sanction affecting, under the Convention, all trea-
ties conflicting with a peremptory norm of international law, the pre-
sent Chapter must also examine the aggregate of the provisions con-
tained in various other articles of the Convention, which are intended
to complete and implement the substantive provisions of articles 53
and 64.
The above questions will be dealt with separately for each kind
of sanction provided by articles 53 and 64 respectively, following the
above mentioned distinction of the Convention on this matter. Ac-
cordingly, in a first section dealing with «invalidity» an analysis of
the sanction stipulated by article 53, will he attempted assisted both by
those articles of the Convention which implement the provisions of ar-
ticle 53 and by the pertinent preparatory work; while a second section
dealing with «termination» will proceed, in the same way, to the exa-
mination of the sanction under article 64; finally, in both sections, a brief

similar to that of absolute nullity of civil law, the nullity ab initio, and another
one resembling, grosso modo, the annulability of civil law. There are also other
types of invalidity in these legal systems covering all the degrees of desired sanc-
tion. Since each individual type of invalidity produces specific effects, the easiest
and safest means to recognize the type of invalidity affecting a specific legal act is
to isolate its effects upon such act. For a comprehensive study of the question of
invalidity, see, inter alia, (a) in municipal law: Guggenheim, D., L’Inva-
lidité des Actes Juridique en Droit Suisse et Gompareé:
Ripert Eraite Hie mem taire de Droit Giy 1it46—ibeam(l\rand.252=
301 (II) ; (b) in international law : Guggenheim, P., «La validité et la nullité des
actes juridiques internationaux» ; Hertz, «Hssai sur le probléme de la nullité»;
Morange, «Nullité et inexistence en Droit international public» ; Verzijl, «La va-
lidité et la nullité des actes juridiques internationaux» ; Vitta, La Validité
des Traités Internationawx; (c) in the Vienna Convention: Cahier,
«Les caractéristiques de la nullité en Droit international » ; same «La violation du
Droit interne relatif 4 la compétence pour conclure des traités»; Dhokalia, «Nullity
or Invalidity of Treaties»; Guardia and Delpach,E1 Derecho de los Trata-
dos y la Convecion de Viena, 364 - 486 ; Nuhlik, «The Grounds of In-
validity and Termination of Treaties»; Rosenne : «The Settlement of Treaty Dispu-
tes under the Vienna Convention» ; Rozakis, «The Law on Invalidity of Treaties»;
same «The Conditions of Validity of International Agreements».
The Sanctioning Power of the Jus Cogens Norms 97

attempt shall be made, before the main discussion, towards clarifying

the exact legal conditions justifying the impeachment of the validity
of a treaty under each of the two articles.

1. The Invalidity of Treaties in Accordanee with the Provisions of

the Vienna Convention.

A. Article 53 as a Ground of Invalidity

Article 53 provides a ground of invalidity of treaties? by deter-

mining that a treaty is void if it conflicts with a norm of jus co-
gens. In other words, the international legal system accepts among
its conditions of validity that the content of a treaty must be legiti-
mate, namely comply with the content of some rules of law. Article
53 provides the legal basis for the sanctioning of treaties which do
not comply with such rules.
The ground of invalidity of article 53 apparently applies to a tre-
aty only if its content violates an imperative norm. The text of the
article does not refer at all to. the possibie incompatibility of the exe-
cution of a treaty with the content of a jus cogens norm and
does not sanction a treaty in-that case.
The above arrangement may leave unhindered a number of trea-
ties which do not violate a jus cogens norm directly by their
content but which, nevertheless, violate that rule in the course of their
execution. Certainly, treaties are usually executed in accordance with
their content, that is, the letter and spirit of their text. However, it
is not a rare phenomenon in the sphere of international relations that
a perfectly legitimate content may produce, through the execution of
a treaty, illegal results violating a jus cogens norm. This may

3. By «ground of invalidity» is meant the legal basis justifying the invalidity

of a legal act. Non-compliance of a legal act with the requirements set up by the le-
gal system within which the legal aet is purported to produce effects, gives birth
to a ground of invalidity. The grounds of invalidity of legal acts are exhaustively
and a priori determined by a legal system and concern, usually, the following
matters: (a) the capacity and the competence of its subjects to produce a legal
act: (b) the existence of an unimpeded consent on the part of the contracting
parties ; (c) the legitimacy of the object of the legal act; and (d) the form, that
the expression of the will of the contracting parties must take. These requirements
of validity can be found in almost all the legal systems of the old world and it may
be said that they are also accepted by the theory of international law.
if
98 The Concept of Jus Ccgens

occur following the deterioration of the subject-matter of a treaty with

the lapse of time by a de facto revision of its hitherto legiti-
mate clauses. Indeed, the parties to a.treaty may follow a construction
with respect to some (or to all) clauses of their instrument which, if
applied, may violate a jus cogens norm despite the fact that
these clauses were initially lawful. It is also possible that an appa-
rently legitimate clause may some times cover under its inoffensive
language the intention of the States-parties to virtually violate a jus
cogens norm without being liable to invalidity.*
Although the final text of the article appears to exclude the pos-
sibility of the invocation of invalidity of a treaty whose execution in-
volves the violation of a jus cogens norm, the preparatory work
shows that this matter did occupy the drafters at an early stage of
the preparation of the article. Indeed, during the drafting of the arti-
cle by the International Law Commission, all possible shades of incom-
patibility of a treaty with a jus cogens norm were discussed:
incompatibility of the object (content), incompatibility of the appli-
cation and incompatibility of both the object and application.
The first version of the article on the illegality of treaties, which
was drafted by Lauterpacht,® appears under the part «Legality of
the Object of the Treaty»® but its text provides that «[a] trea-

4. A good example of the possibility of a deterioration of the subject-matter

of a treaty through its execution may be found in the hypotheticalillegal application
of a defensive pact, such as the NATO or the Warsaw Pact, for goals alien to its ori-
ginally defensive character. A defensive alliance is not, in principle, inconsistent
with the prohibition of the use of force as long as it complies with the notion of col-
lective defense (article 51) of the Charter of the United Nations and/or with Cha-
pter VIII (on Regional Arrangements) of the same instrument. It may, howerer,
become inconsistent if the States-parties to such a defensive pact decide to attack
a third State, using the machinery and the procedures provided by that very same
pact. In these circumstances, the parties would be actually proceeding to ade fa-
cto modification of their defensive alliance which would hence lose its initially
legitimate character. The question which therefore arises is whether any party to
such a pact, or any third State, could ask for its invalidation on the ground that it
violates the norm prohibiting the use of force. It would appear that the letter of ar-
ticle 53 of the Convention does not permit a positive answer to the above question.
The wrongdoers might actually claim that they acted independently of their defen-
sive alliance when they committed the illegality, or maintain that article 53 provides a
ground of invalidity only when the subject-matter of a treaty violates the subject-
matter of a jus cogens norm.
Din SU Dina dae
6. Emphasis added.
 The Sanctioning Power of the Jus Cogens Norms 99

‘ty... 1s void if its performance _ involves an act which is il-

legal...».7 It appears that for the second Special Rapporteur, the
«object» of a treaty, as such, was inseparable from its application.
The notion of performance actually included for Lauterparcht all the
possible uses of the given object of a treaty —that is to say, all pos-
sible legal acts based on the interpretation of a treaty’s content by
its parties — and constituted, in consequence, the sole determinant
factor in judging the compliance or non-compliance of a treaty with
the fundamental norms of public policy.
The third Special Rapporteur, Sir Gerald Fitzmaurice, took quite
a different view in his draft articles: the object of the treaty was for
him the only determinant factor in attesting its legality and no con-
sideration was given to the application.§
The fourth Special Rapporteur, Sir Humphrey Waldock, propo-
sed a solution covering both the illegality of the object of a treaty
and the illegality of its execution.® In his draft article a treaty was
considered illegal either because its object was illegal as such, or be-
cause its execution involved the infrmgement of a norm having the
character of jus cogens; or, conceivably, because both object
and execution were illegal.
The part in Waldock’s draft article where the distinction is made
between object and execution was not approved by the majority of
the members of the International Law Commission to which it was
submitted for consideration. The Commission preferred to adopt the
proposed draft article, in its general lines, without including the exe-
cution of a treaty as a criterion of illegality and it eventually redra-
fted the article omitting that criterion.1° All subsequent draft arti-
cles were discussed on the basis of the approved formula «a treaty
is void if it conflicts with a peremptory norm of general international
law». That formula was eventually contained in draft article 50 which
was accepted by the Commission and submitted to the consideration
of States. The commentary accompanying it made it, moreover, clear
that the Commission considered that the legal or illegal character of a
treaty was to be determined only on the basis of its object; in other
words, the sole criterion was to be the compliance or non-compliance

7. Emphasis added.
Cf. draft articles 17, 20 and 22. [ILC Yearbook, 23-46 (1958,IT) ].
So Payal doe
© OmUuLT Game
me
CO amb oro Ke, 24 Sen (963se ie
100 The Concept of Jus Cogens

of the provisions of a treaty with the subject-matter of a Jus co-

gens norm.!
The position of States vis-a-vis the above formula cannot be di-
rectly inferred from a perusal of the deliberations of the Conference.
The latter do not include any direct reference to the meaning of the
opening sentence of draft article 50. Consequently, it may be presu-
med that there was a general consensus on the part of the participa-
ting States with respect to the position of the majority of the mem-
bers of the International Law Commission which had asked for the
deletion of the word «execution» as a factor for the determination of
the illegality of treaties.
The fact that-article 53 provides only for the illegality of the ob-
ject of a treaty may create some difficulties in the future. Indeed,
should a group of States ever decide to violate a norm of jus co-
gens by means of an agreement, they would certainly take the pre-
caution to formulate such agreement in a concealed manner so as to
exclude the immediate consequences of the illegality.
On the other hand, however, the inclusion of execution as an ex-
clusive or concurrent factor of the determination of illegality might
put an unbearable burden to the presumption of validity of treaties ®

11. Although no specific reference to that matter is to be found in the Commen-

tary of the Commission, the latter’s attitude may be inferred from the general spi-
rit of the text of the commentary as a whole. An express, moreover, indication of
the Commission’s position may be found in a remark made in another context. In
commenting on the nature of the }us cogens norms, the Commission observed,
inter alia, that at would ... be going much too far to state that a treaty is
void if its provisions conflict witha rule of general international law».
(Gommentary, 67. Emphasis added). It can be seen that here, too, the Com-
mission refers exclusively to the provisions of a treaty and not to its execution.
12. Throughout the section on invalidity of the Vienna Convention, a treaty is
considered, in principle, as valid unless some specific defect, determined exhausti-
vely by a rule of law, exists which may or does invalidate it. This presumption of
validity is clearly delimited in article 42 (Validity and Continuance in
Force of Treaties) where it is stipulated that «{t]he validity of a treaty
or of the consent of a State to be bound by a treaty may be impeached only through
the application of the present Convention». (Emphasis added). The presumption of
validity set forth by this paragraph (1) of the article becomes clearer if read in con-
junction with the second paragraph of the same article dealing, inter alia, with
termination : «The termination of a treaty, its denunciation or withdrawal of a
partymay take place only as a result of the application
of the provisions of the treaty orof the present Gonyen-
tion». (Emphasis added). In commenting on draft article 39 (present article 42)
‘The Sanctioning Power of the Jus Gogens Norms 101

through the fact that the validity of an instrument might be chal-

lenged before its execution on the basis of hypothetical acts that
its performance would allegedly involve, thus leading to a conjectu-
ral search into the possible conformity of its execution with a jus
eogens norm.
Such likelihood should not be altogether excluded: if the crite-
rion of execution applied, any State wishing to invalidate a treaty could
indeed challenge its legality at a time prior to its execution on the
basis of an alleged probability of illegal performance. It should not
be forgotten, after all, that article 53 is aimed at preventing
an illegality from taking place by actually rendering inoperative the
means through which the illegality will be materialized.
De lege ferenda, however, the article could be formula-
ted in such a manner as to exclude a priori allegations of illega-
lity on the basis of a hypothetical execution. This could be attained
if its text clearly provided that the criterion of execution would be
valid only in cases of actual manifestations of illegality in the appli-
cation of a treaty. Such arrangement would be welcome and would
certainly enhance the function of the jus cogens concept in
the imternational legal systems.

B. The. Type of Invalidity under Article 53 and its Consequences

The opening sentence of article 53 of the Vienna Convention pro-

vides that a treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. The article it-
self does not proceed to any explanation of the term «void» which in
the theory of international law seems to have retained all the chara-
cteristics attributed to it by municipal legal systems: the term «void»
is generally used to denote an absolute nullity, or nullity ab ini-

the Commission remarked, inter alia, the following :

«(1). The substantive provisions of the present part of the draft articles concern
a series of grounds upon which the question of the invalidity or termination
of a treaty or of the withdrawal of a party from a treaty or the suspension
of its operation may be raised. The Commission accordingly considered it
desirable, as a safeguard for the stability of treaties, to underline in a
general provision at the beginning of this part that the validity and
continuance in force of a treaty is the normal state of things which may be
set aside only on the grounds and under the conditions provided for in the
present articles» (Commentary, 56).
102 The Conceptof Jus Cogens

tio, whose basic characteristics are its automatic and retroactive ef-
:
fects and its wide range of invocation (erga omnes).
The exact nature of the type of invalidity under article 53 occu-
pied for long the deliberations of all the drafting bodies of the Vienna
Convention. The International Law Commission, which had introdu-
ced the term «void», consistently referred to the term «absolute nul-
lity» (nullity ab initio), without further clarifying whether it
was used with a connotation resembling, in its general lines, the scheme
of absolute nullity as conceived by the municipal orders. Yet, in its
various occasional comments, the Commission made it clear that it
attributed to the term «void» the features generally accepted by the
major legal systems.'4
The Vienna Conference adopted in its deliberations the pattern
of «absolute nullity» bequeathed to it by the International Law Com-
mission. In discussions which took place during official meetings, se-
veral efforts were made to give substance to a term the context of
which seemed to many States obscure ans confusing. A number of re-
presentatives assigned to the notion of «absolute nullity» (the terms
«nullity ab initio and ipso facto void» were also used)
its municipal law characteristics while others seemed extremely relu-
ctant to accept an arbitrary identification of the invalidity under draft

A Seelnet ria, 145 est isiesqe

14. In its commentaries on the jus cogens draft articles, the Commission
often referred to the notion of absolute nullity or to similar notions. For example,
in its commentary on draft article 50, it explained that under that article the «tre-
aty is wholly void because its actual provisions are in conflict with a
peremptory norm of general international law». It continued: «[Draft] [a ]r-
ticle 61, on the other hand, concerns cases where a treaty, valid when concluded,
becomes void and terminates by reason of the subsequent establishment of a
new rule of jus cogens with which its provisions are in conflict. The words
‘becomes void andterminates’ make it quite clear... that the emergence
of anew rule of jus cogensis not to have retroactive effects on the validity of
a treaty». (Commentary, 68. Emphasis supplied in the second quotation). Fur-
ther, in commenting on draft article 61, the Commission wrote that the possibility
of separation of treaty provisions was not appropriate «when a treaty is void ab
initio under [draft] article 50...» (Commentary, 81). Also in its commen-
tary on the consequences of the nullity or termination of a treaty conflicting with
a peremptory norm of general international law (draft article 67, present article
71), the Commission referred to the nullity of draft article50as nullity ab initi 0,
hasting though to underline that the nullity under that draft article was «a special
case of nullity». (Commentary, 86).
The Sanctioning Power of the Jus Cogens Norms 103

article 50 with the respective notion of the internal legal systems.

Unable to agree on the exact meaning of these terms the Con-
ference asked for the legal assistance of Sir Humphrey Waldock, who,
in his capacity as the last Special Rapporteur of the International Law
Commission and as the Expert Consultant of the Conference, was
the most appropriate person to delimit the meaning of the word «void»
of the draft article. During the 40th meeting of the first session, Sir
Humphrey came up with the following explanation:

In some cases the Commission had used the expression «a State

may invoke», whereas in articles 49 and 50 it had preferred to
say «a treaty is void». The difference took into account the fact
that a large number of articles dealt with the matter of the con-
sent of States, whereas articles 49 and 50 dealt not only with the
consent of States but also with a question of public order. In ar-
ticles 49 and 50 the words «a treaty is void» meant. that if the
nullity was established the effect of that nullity related to the tre-
aty itself, not merely to the consent of the States concerned.

He continued:

The Danish representative’s comment that the legal terms «void»,

«null», «anvalid», «voidable», did not necessarily have the same
meaning in the different systems of internal law was correct. The
Commission had considered that a treaty became void either for
reasons of public order or as a result of a defect in consent. Al-
though it had recognized that in many cases either one or both
of the parties should be considered as having the choice of invo-
king the ground of invalidity for the purpose of avoiding it, the
Commission had not contemplated the possibility that a treaty
should become void only from the date on which its invalidity
had been established. It had tried to resolve the difficulties rai-
sed by the use of the words «ground of invalidity» and «void»
and had drafted specific provisions on the consequences of the in-
validity of a treaty. In general, it might be said that the term
«void» applied when the avoidance of a treaty was established

145. UNCLT Official Records, irst Session. See statements by Cuba,

the United Kingdom and Denmark at the 39th and 40th meetings of the Committee
of the Whole.
104 The Concept of Jus Cogens

for some reason of public order and the expression «ground of in-
550 : ; 16
validity» when what was involved was a States’s consent only.

The clarifications made by the Expert Consultant of the Vienna

Conference (who was, moreover, the person who had drafted the ar-
ticles on jus cogens) touched upon some points of primary im-
portance for the understanding of the invalidity under article 53:
First of all, he pointed out that the invalidity under that article was
not automatic but had to be established; secondly, that the term «void»
was used not as a term incorporating the corresponding notions of mu-
nicipal legal systems but as a special term having a particular conno-
tation for the purpose of the Vienna Convention; finally, his above
comments made it clear that the best means to find out the exact
characteristics of that term was to refer to the text of the Convention
and examine all rules relevant to the implementation of the substantive
article 53.
The explanatations given by Waldock during the deliberations
of the Conference, and particularly his remark on the independence
of the law of the Convention from extraneous connotations, seem to
be part of a more general approach of the International Law Commis-
sion toward the law on invalidity. Indeed, the drafters of the articles
which were presented for the consideration of States made an effort
to introduce a complete system of rules providing for an autonomous
and self-sufficient means for the invalidation of treaties. Their aim
was apparently to present, for the first time in international law, an
efficient system of legal rules adjusted to the needs and peculiarities
of international relations, and to dissociate, once and for all, the con-
cept of the invalidity of treaties in international law from any corre-
sponding notions or analogical references to alien legal systems.!”

16. UNCLT Official Records, 1rst Session, 40th meeting of the Com-
mittee of the Whole.
17. As a result of the paucity of international partice in matters of invalidity
of treaties, international law did not develop a complete system of rules on that
matter. The rather sparse practice and the infrequent theoretical studies always
used as a prototype the corresponding notions of domestic legal systems. Almost
invariably, the doctrine has tended to introduce these notions more or less
unaltered in international law, this being a quite distinguishable phenomenon in
most theoretical studies. Consequently, neither practice nor the doctrine ever
contributed to the creation of what might be called asystem of rules on invalidity;
indeed, one might argue that until the drafting of the Vienna Convention,
international law did not possess any complete system on the invalidity of
The Sanctioning Power of the Jus Cogens Norms 105

The Commission fulfilled the above aim by imposing the appli-

cation of its entire system, in its integrity (grounds, procedure, -con-
sequences), to all future parties to the Convention who would wish
to impeach the validity of a treaty, and by excluding for such par-
ties the possibility to resort to any other means of invalidation out-
side the Convention. This was achieved, firstly, by the fact that the
application of one article on invalidity under the Convention auto-
matically entails the application of all the rest of the latter’s re-
levant articles necessary for completing the process of invalidation; 8
and, secondly, by the fact that for a party to the Convention, the va-
lidity of a treaty can be impeached only through the application of
that instrument. In other words, in order to impeach the validity of
a treaty, a party to the Vienna Convention cannot resort to means
other than those provided by the latter.
Yet the explanations given by the Expert Consultant did not con-
siderably contribute to convince some States to cease making inappro-
priate references to the municipal notions of invalidity and to discuss
the problems raised by the articles of the Convention on the basis of

treaties, depending for such matters on theoretical proposals and incomplete

— from
a systematic point of view —rules. For an approach to the problem of invalidity
see the much celebrated Draft Convention on the Law of Treaties
of the Harvard Law School.
18. This was so arranged from the beginning. Part V ofthe draft articles (pre-
sently also Part V) had three sections respectively covering the questions of grounds,
procedure and consequences of invalidity in a uniform manner so that the applica-
tion of one of those sections would entail the application of the others. In its
commentary on draft article 39 (present article 42), and more particularly on the
phrase «application of the present articles» indicating the means through which
the validity of a treaty might be impeached, the Commission explicitly referred to
the above arrangement in its following statement :
«The phrase ‘application of the present articles” ...refers, it needs to be stres-
sed, to the draft articles as a whole and not merely to the particular article deal-
ing with the particular ground of invalidity or termination in question in any
given case. In other words, it refers not merely to the article dealing with the
ground of invalidity or termination relevant in the case but also to other ar-
ticles governing the conditions for putting that article into effect ; for example,
article 4 (treaties which are constitutent instruments of international organi-
zations), article 41 (separability of treaty provisions), article 42 (loss of a right
to invoke a ground for invalidating, terminating, etc.) and, notably, articles
62 (procedure to be followed) and 63 (instruments to be used).» (Co mm en-
GRR al.
19. It is so stipulated by final article 42 (seesupra, note 12, Chapter IV),
106 The Concept of Jus Cogens

such references.2° Indeed, the records of the Conference reveal a re-

markable lack of coherence in the way in which States viewed the
question of invalidity. Many confusing and irrelevant statements were
forwarded probably due, inter alia, to the lack of an organi-
zed approach to the various problems of invalidity and of a systema-
tic discussion to that effect.
Despite, however, the general confusion, which was rendered even
worse by the insistence of States on an indiscriminate use of terms
which had a specific connotation in the context of the draft articles,
the text of these articles referring to the types of invalidity, and, more
specifically, to the type of invalidity under draft article 50, remained
unaltered. Thus the basic points analyzed by the Expert Consultant
are also to be found in the text of the relevant final articles and are
therefore still valid in attesting the type of invalidity provided by ar-
ticle 53. After all, the inconclusiveness of the deliberations in Vienna
makes the text of the Convention the exclusive detector of the will
of States. For the above reasons, therefore, it would appear advisable
to turn to the text of the Convention in order to determine the spe-
cific characteristics of the type of invalidity under article 53.

Among the eight grounds of invalidity provided by the Conven-

tion, only article 53 appears to be a clear and unequivocal case of a
«public interest» ground.”4 In other words, it is the only ground of
invalidity whose main purpose is not to protect the individual rights of
a party to a treaty but the more general interests of the internatio-
nal community. This becomes evident from a mere reading of the eight
articles incorporating the eight grounds of invalidity. Indeed, the first

20. See, for instance, the position of the Portuguese representative who, after
the explanations given by the Expert Consultant, continued to consider that tha
sanction under draft article 50 was absolute nullity, this being, in his opinion, in-
compatible with international law because, inter alia, absolute nullity operates
ipso jure and it has effects, erga omnes. Instead of substantiating those
arguments, if possible, on the basis of what the draft articles provided for such
situation, Portugal and other States adhered to the characteristics of domestic
rules on invalidity and drew their conclusions accordingly.
21. The other seven grounds cf invalidity provided by the Vienna Convention
are: article 46 (Provisions of Internal Law Regarding Competence to Conclude
Treaties); article 47 (Specific Restrictions on Authority to Express the Consent of
a State) ; article 48 (Error) ; article 49 (Fraud) ; article 50 (Corruption of a Repre-
sentative of a State); article 51 (Coercion of a Representative of a State); article
52 (Coercion of a State by the Threat or Use of Force).
The Sanctioning Power of the Jus Cogens Norms 107

seven articles (46 to 52) are aimed at safeguarding a State from be-
coming bound by a treaty without its proper will.22 Article 53, on the
other hand, provides a ground of invalidity which intends to protect
every State of the international community from an illegal treaty and
not solely the parties to it.
A more careful reading of the articles in question may reveal some
more specific characteristics of their provisions which seem to be con-
sonant with the special types on invalidity stipulated. by them. Most
of the articles, and more particularly articles 46 to 50, evidence clearly
their intended function to provide protection to individual States.?3
Two elements witness especially the intention of the drafters: first,
the fact that the text of the articles stipulates that a State whose
consent to be bound by a treaty was irregularly induced may (or may
not) 4 invoke the defect of its consent to invalidate the treaty. The
invalidation, therefore, of a consent or a treaty falling under these ar-
ticles depends upon the will of a party to proceed or not to such mea-
sure. If the State-party prefers not to invalidate the consent or treaty,

22. Article 52, however, seems to protect not only an individual State whose
consent to be bound by a treaty was procured by a threat or use of force but also
the integrity of the norm prohibiting the threat or use of force in international rela-
tions. That was the intention of the drafters as indicated in the preparatory work.
Hence, article 52 incorporates a ground of invalidity protecting both individual
and social interests.
23. Although protecting individual interests as well (see, however, preceding
note on article 52), articles 51 and 52 are formulated in a manner almost identi-
cal to that of article 53. The text of article 51 stipulates that «[t]he expression of
a State’s consent to be bound by a treaty which has been procured by the coercion
of its representative through acts or threats directed against him shall be wi-
thout any legal effect.» (Emphasis added). Article 52 stipulates that
«f{a] treaty is y oid if its conclusion has been procured by the threat or useof force
in violation of the principles of international law embodied in the Charter of the
United Nations:» (Emphasis added). It seems that with respect to article 51, the in-
tention of the drafters was to stress the condemnation of all forms of coercion by
the international community, while with respect. to article 52 their intention was
to protect the inviolability of the prohibition of the threat or use of force. Yet,
neither of these articles are genuine grounds of invalidity of a public interest type.
For a further discussion, on these grounds, see Rozakis, «The Law on Invalidity
of Treaties» ; same, «The Conditions of Validity of International Agreements»;
Ténékidés, «Les effets de la contrainte sur la validité des traités».
24. Articles 46 and 47 are formulated in the manner: «[a] State may not invo-
ke... unless...», in order to make it clear that invocations of these two grounds
of invalidity under their respective texts are restricted to special cases only.
108 | The Concept of Jus Cogens

the defect is by that fact remedied and the treaty continues to ope-
rate on the international plane as an absolutely valid instrument.
The second element witnessing the intention of the drafters of these
articles is that, according again to theif text, only a State whose
consent is defective may (or may not) invoke the defect in order to
invalidate its consent or the treaty. No other State, party or non-
party to that treaty, may invoke the defect to that effect. For the
rest of the parties—and, a fortiori, for the non-parties to the
treaty—the latter is and remains valid as long as the State whose
consent is defective does not invoke the defect.
A contrario, the formulation of article 53 does not leave
much room for any conclusions other than it is a «public interest»
ground of invalidity. Being intended to protect the international con-
munity at large, it neither provides for a possibility of remedy nor
for a specific beneficiary who alone can invoke a treaty’s invalid cha-
racter. As such, the sanction of article 53 is established as an irreme-
diable, automatic, erga omnes_ invalidity: an illegal treaty is
irretrievably void, it does not need an establishment of its invalid cha-
racter, and any member of the international community, party or non
party, may invoke its void character when confronted with its ille-
gal operation.
However, a study of the rest of the provisions of the Convention
dealing with the establishment of the general legal framework within
which article 53 is intended to function, the procedure for the application
of that article’s sanction and the consequences of the latter upon an
illegal treaty, lead to a number of conclusions which differ in many
respects from those drawn from a comparative approach to the arti-
cles on the grounds of invalidity. In examining through the «implemen-
ting» articles the type of invalidity under article 53, the following re-
marks can be made which will be dealt with more extensively in the
following pages: (a) The invalidity of a treaty falling under article 53
must be established through a compulsory procedure; it is not auto-
matic. (b) The invalidity of a treaty falling under article 53 can be
invoked through the machinery of the Vienna Convention on] y by
a party to that treaty; it is not, therefore, an erga omnes in-
validity for the purposes of the Convention. (c) The provisions of an
illegal treaty are not separable; all the provisions unexceptionally be-
come void regardless of whether they actually conflict with a jus
cogens norm or not. (d) The confirmation of validity of an ille-
gal treaty is excluded; an illegal treaty is void beyond redress. (e) The
The Sanctioning Power of the Jus Cogens Norms 109

consequence of the invalidation of an illegal treaty under article 53

is a retroactive extinction of all its legal and factual effects.

a. The Establishmen! of the Invalidity of an Illegal Treaty.

The invalidity affecting an illegal treaty is not automatic. It has

to be established through the compulsory procedure of paragraphs 4
and 2 of article 65 of the Convention which read:
1. A party which, under the provisions of the present Conven-
tion invokes either a defect of its consent to be bound by a
treaty or a ground for impeaching the validity of a treaty,
terminating, withdrawing from it or suspending its operation,
must notify the other parties of its claim. The notification
shall indicate the measure proposed to be taken with respect
to the treaty and the reasons therefor.
2. If, after the expiry of a period which, except in cases of spe-
cial urgency, shall not be less than three months after the re-
ceipt of notification, no party has raised any objection, the
party making the notification may carry out in the manner
provided in article 67 the measure which it has proposed.”

Article 65, which is entitled «Procedure to be Followed with Re-

spect to Invalidity, Termination, Withdrawal from or Suspension of
the Operation of a Treaty» actually consists of five paragraphs. The
first two paragraphs, whose text is given above, deal with the pro-
cedure to apply inter alia for the invalidation of a defective
consent or treaty if no dispute arises between the parties, while the
rest of its paragraphs refer to the settlement of disputes which may
arise following the invocation of invalidity of a consent or treaty.
The provisions of paragraphs 1 and 2 of article 65 constitute a
compulsory procedure to be followed unexceptionally in all cases of
invocation of invalidity by the parties to a treaty. The reason of such
uniform treatment of all cases of invalidity, regardless of their legal
basis, must be found in the determination of the drafters of the Vienna
Convention to discourage arbitrary allegations of invalidity. Indeed,
the procedure of invalidation of a treaty applying to all grounds of
invalidity excludes the possibility of disengagement from a burdensome

25. For paragraphs 3, 4 and 5, see infra, 155, 156.

110 | The Concept of Jus Cogens-

agreement to any State unilaterally contesting the validity of a treaty

to which it is a party or of its consent to be bound by that treaty.
According to article 65, a contesting State must follow the indi-
cated procedure and secure the consent of the rest of the parties to
the treaty on the measure (namely, the invalidation) which it propo-
ses. The consent of the parties may be given either expressly or implie-
dly. Expressly, if they all accord their agreement to the invalidation
of the consent or treaty through a notification to the contesting par-
ty; impliedly, if they do not object within the time limit provided
by paragraph 2 against the measure proposed by the contesting party.
Hence, article 65, paragraphs 1 and 2, establishes what can be called
a «consensual invalidation» in the absence of which a treaty cannot
be considered definitively void.
The intention of the drafters to preclude unilateral assertions of
invalidity by individual parties may be easily traced in the prepara-
tory work of the Convention. The International Law Commission which
formulated the basic patterns of the arrangement of «consensual inva-
lidation» commented on its final draft article 62 (present article 65)
as follows:

Many members of the Commission regarded the present article

as a key article for the application of the provisions of the pre-
sent part dealing with the invalidity, termination or suspension
of the operation of treaties. They thought that some of the grounds
upon which, treaties may be considered invalid or terminated or
suspended under those sections, if allowed to be arbitrarily asser-
ted in face of objection from the other party, would involve real
dangers for the security of treaties... Accordingly, the Commis-
sion considered it essential that the present articles should con-
tain procedural safeguards against the possibility that the nullity,
termination or suspension of the operation of a treaty may be
arbitrarily asserted as a mere pretext for getting rid of an incon-
venient obligation.?°

The advisability of the inclusion of such procedural safeguards

was not disputed by the States in the Conference. Although the deli-
berations in Vienna appeared for a moment to be threatened by a
stalemate on account of the wording of draft article 62, the contested

26.) Grom mye

mt aur ye ode
The Sanctioning Power of the Jus Cogens Norms 111

points did not concern the article’s first two paragraphs.2” A great num-
ber of States were fervent proponents of the retention of the proce-
dural safeguards. Some States, moreover, made efforts to secure that
the letter of draft article 62 apply, in its entirety, to all cases of in-
validity provided by the Convention, including, of course, the ground
of invalidity of draft article 50. Hence, article 65 was finally retained
having first been clarified in the issues which appeared obscure to
some States.?8
In analyzing, now, the provisions of paragraphs 1 and 2 of arti-
cle 65, it must be pointed out that the procedure of invalidation of
a treaty by one of its parties claiming its illegal character — namely,
its conflict with a jus cogens norm— must begin with a noti-
fication of the claimant to all other parties to that treaty on the pro-
posed measure and on the reasons which led it to propose such mea-
sure. The notification must take place in accordance with articles 78
and 67, paragraph 1, of the Convention.?®
The notification, therefore, of the contesting party must, first of
all, contain the claim of that party, in other words the measure that
it proposes to take. According to Sir Humphrey Waldock, the term
«measure» is intended to refer to a step or legal act performed with
respect to the treaty.°° Actually, the «measure to be taken» should
refer to the invalidation of the illegal treaty and to the exact conse-
quences of such an invalidation in accordance with the provisions of

Ae Miia, AO en Seep
Oe Inga. diye
29. Article 78 reads :
Except as the treaty or the present Convention otherwise provide, any noti-
fication or communication to be made by any State under the present Conven-
tion shall: (a) if there is no depositary, be transmitted direct to the States for
which it is intended, or if there is a depositary to the latter ; (b) be considered
as having been made by the State in question only upon its receipt by the
State to which it was trasmitted or, as the case may be, upon its receipt by
the depositary ; (c) if transmitted to a depositary, be considered as received by
the State for which it wasintended only when the latter State has been informed
by the depositary in accordance with article 77, paragraph 1 (e).
Moreover, paragraph 1 of article 67, entitled Instruments for Declar-
ing Invalid, Terminating, Withdrawing from orSus-
pendingthe Operation of a Treaty, reads:
The notification provided for under article 65 paragraph 1 must be made in
writing.
30. ILC Yearbook, 150-51 (1966, II).
112 The Concept of Jus Cogens

article 71, paragraph 1, and the particular circumstances of the speci-

fic case.3} , \
Further, the notification of the contesting party must contain the
reasons which led it to ask for the invalidation of the treaty. If a
State contests the legality of a treaty (in which case article 53 applies)
it must presumably prove that the treaty is illegal because it viola-
tes a peremptory norm of general international law as that term is de-
fined under article 63 of the Convention.
Paragraph 2 of article 65 confers to the claimant the right to pro-
ceed to the taking of this measure if no objections have been raised
by the other parties to the defective treaty. The taking of the mea-
sure is allowed, as has been seen, three months after the date in which
it was proposed, which apparently means three months after the par-
ties to the illegal treaty receive the notification of the contesting party
regarding the proposcd measure.
The effect of the taking of the measure, namely the actual esta-
blishment of the invalid character of an illegal treaty, is attained by
a unilateral act of the claimant State.** The silence of States parties

31. For a discussion on the consequences of invalidity, see infra,129 et seq.

32. Rosenne («The Settlement of Treaty Disputes under the Vienna Conven-
tion», 37) made the following comments with respect to the meaning of notifica-
tion :
«Article 25 of Sir Humphrey Waldock’s Second Report had contained detai-
led proposals regarding the notice of the claim by the party wishing to take ac-
tion with regard to the treaty, and its communication to the other party or
parties to the treaty. These proposals carried the implication that in the hypo-
thesis contemplated by what has become paragraph 3 ofarticle 65, a dispute
would rapidly come into existence. However, in the discussion of the I.L.C. in
1963 criticism was voiced at the idea that the language of this provision should
be close to that found in the text governing international litigation. As a result,
this part of the article was substantially recast, and practically reached its pre-
sent form (subject to certain textual revisions introduced in 1966). In this con-
nexion, it will be noted that the excision of the element of «dispute» from
article 65 was further emphasized at Viennaby the fact that this concept which,
as we have seen, has a certain technical configuration in modern internatio-
nal law, makes its first and indeed only appearance in article 66. Article 65 is
thus firmly placed within the framework of the diplomatic processes, and the
use of the word «notification» instead of «notice of claim» or the like gives ad-
ded stress to this.» See also infra, 155 et seq.
33. Article 67, paragraph 2, of the Convention provides the method in which
the act of invalidation takes place. It reads :
Any act declaring invalid... a treaty pursuant to... paragraphs 2 or 3 of ar-
ticle 65 shall be carried out through an instrument communicated to the other
The Sanctioning Power of the Jus CGogens Norms 113

to the illegal treaty is considered, as already mentioned, as an impli-

ed consent with regard to the invalid character of their instrument.
As a result, the establishment of the invalid character of the treaty
by the sole action of one of its parties (in accordance with article 65,
paragraphs 1 and 2) has the effect of rendering the treaty void for
all its parties.
As for the complementary measures that the contesting party may
propose in order to substantiate the invalidation of the illegal treaty
and re-establish the status quo ante, these should be car-
ried out in accordance with the provisions of article 71 of the Conven-
tion.*4 This is, however, a separate issue involving negotiations between
all the parties as to the exact application of that article in the factual
situation existing at the time of the invalidation.
In the event of a dispute between the parties over the application
of the particular measures proposed, the usual means of the peaceful
settlement of disputes must apply.*° It must, however, be stressed
that a dispute over the application of the provisions of article 71 to
the particular circumstances of the illegal treaty does not indicate, as
such, an objection to the measure of invalidation proposed by the
contesting State. Consequently, in the event that objections have been
raised solely with respect to the proposed way of re-establishment of
the status quo ante, the contesting State can proceed to the
invalidation of the illegal treaty after the lapse of three months, as ar-
ticle 65, paragraph 2, provides.
On the other hand, the contesting State may simply and solely
propose the invalidation of the illegal treaty without proposing any
particular measure on the re-establishment of the status quo
ante. In that case, the problem of the steps to be taken with a view

parties. If the instrument is not signed by the Head of State, Head of Govern-
ment or Minister for Foreign Affairs, the representative of the State com-
municating it may be called upon to produce full powers.
34. Infra, 129f. By «complementary measures» is meant the actual measures
which must be taken to extinguish the effects of an illegal treaty. For instance, the
application of a treaty which violates the rule prohibiting the use of force may re-
sult in the occupation of a foreign territory by the armed forces of the contra-
cting parties and the building of military installations therein. The avoidance of
the illegal treaty shall unquestionably extinguish those factual results of its appli-
cation in accordance with article 71 of the Convention. The same certainly applies
to cases where the illegal consequences of a treaty are onlyinter partes.
Selanne ao) oe lumesae
ey«
114 The Concept of Jus Cogens

to re-establishing the situation existing before the conclusion of the

illegal treaty is to be settled by negotiations between all the parties
or, in the event of disagreement, through the traditional means for
the pacific settlement of disputes.

It may be observed that, according to the wording of article 65,

paragraph 1, the content of the notification of the claimant State is
limited to the proposal of the measure to be taken and does
not refer to the actual taking of that measure; the latter may be ta-
ken only after the consent of the rest of the parties has been secu-
red. The consent alone of the parties may therefore bring about the
actual invalidation of the instrument.
The meaning of the consensual invalidation provided by article
65, paragraphs 1 and 2, is that even an illegal treaty operates nor-
mally and is binding upon its parties as long as it is not authoritati-
vely invalidated by the parties themselves. In other words, it is the
consent of the States which establishes the invalid character of the
treaty and not the operation of the law as such. If the opposite were
true, then the invalid character of the illegal treaty would be establi-
shed automatically so that any party would be free to disengage it-
self from the obligations of the treaty and its illegal application. How-
ever, such a thing does not seem to happen under the Vienna Con-
vention.
The rationale behind this arrangement seems to be the concern
of the drafters over the stability of treaties: conscious of the possibi-
lity of arbitrariness in the sphere of international relations, they pre-
ferred to provide a procedure which does not solely declare the inva-
lid character of an illegal treaty but virtually establishes it through
the consent of the parties to it. This seems to apply even in cases
where a dispute arises and the parties to the treaty refer it to a third
party for determination: it is the parties who retain, in principle, the
right to ultimately invalidate or not invalidate their instrument.?¢
In consequence, the first characteristic of the type of invalidity
of an illegal treaty under article 53 is that it is not automatic; it is
dependent upon the consent of the parties to it. This characteristic,
which is not to be found in the text of the substantive article 53, emer-
ges from the compulsory application of article 65, the latter being the
first step to be taken for the invalidation of an illegal treaty.

365 nim, 158) sertpesvera,

The Sanctioning Power of the Jus Gogens Norms 115

The above arrangement of article 65 represents a major deviation

of the law on invalidity under the Convention from the traditional
path of absolute nullity striking an illegal instrument (violating a jus
ceogens rule of law) under the municipal legal orders. While in
the latter systems any decision of the parties to an instrument or of
a third party has a declaratory character, the instrument being by
the operation of law void, in the circumstances of the Convention the
will of the parties is the determinant factor for the application of the
sanction provided for under article 53. This, at least, seems to be the
most plausible legal position that can be adopted in view of the pro-
cedure of article 65 (and article 66 °7) as a whole.

b. The Limitations Ralione Personnae of the Invocation

of Invalidity.

The second main characteristic of the invalidity under article 53

is that it is not an erga omnes _ invalidity for the purposes of
the Vienna Convention. In other words, the machinery of invalida-
tion provided by the above mentioned paragraphs 1 and 2 of article
65 is reserved solely for the parties to the illegal treaty. No other State
(even if party to the Vienna Convention) may invoke the invalid cha-
racter of an illegal treaty through that machinery.
The idea of an erga omnes invocation as a constitutive ele-
ment of the invalidity under article 53 was not discussed during the
drafting of the relevant provisions by the International Law Commis-
sion. Although that body often referred in its comments to the nullity
ab initio, the absolute nullity, the ipso facto nullity, it
completely avoided any reference to the erga omnes invocation
which is, nevertheless, proper to such types of invalidity. On the con-
trary, in its draft article 62 (present article 65) the Commission pro-
vided for a procedure which applied equally to all grounds of invali-
dity and which excluded the erga omnes _ invocation altogether.
In its commentary to that article the Commission made it clear (thus
dissipating any doubt arising from the text of the article) that the
invocation of invalidity may be made solely by the parties to the
defective treaty.*8

awh, Wivip ey, AMotey

38. This may indeed be easily inferred from the wording of the commentary.
Here are some examples : «They [the members of the Commission] thought that
116 The Concept of Jus Cogens

In the Vienna Conference, however, the participating States fre-

quently referred to the notion of erga omnes invocation of in-
validity as a characteristic of what they called absolute nullity un-
der the draft article 50. In their general’tendency to vaguely discuss
unsettled notions, a number of States maintained that the invalidity
under draft article 50 had an erga omnes scope and expressed
their fear concerning the adoption of such a scheme which could de-
velop into a dangerous weapon against the security of treaties and the
principle of State sovereigety.*®
The outstanding matter of erga omnes _ invocation and all
the questions arising in connection with its possible application to the
Vienna Convention were definitively settled by the adoption of an
amendment to draft article 62 proposed by France to that effect. The
proposed amendment was intended to establish beyond doubt the fact
that draft article 62 applied not only to the grounds of invalidity re-
lating to a defective consent (namely, to grounds of invalidity stipu-
lated to protect the interests of individual States) but also to all other
grounds of invalidity provided by the Convention, including the case
of draft article 50. Actually, in the place of a sentence of draft arti-
cle 62, paragraph 1, which provided that
[a] party which claims that a treaty is invalid or which alleges
a ground for terminating, withdrawing from or suspending the
operation of a treaty under the provisions of the present articles
must notify the other parties of its claim.

some of the grounds upon which treaties may be considered invalid or terminated
. if allowed to be arbitrarily asserted in face of an objectionfrem the other
party, would involve real dangers for the security of treaties». Also: «But when-
evera party to a treaty invokes one of these grounds...» ; or «Accordin-
gly, the Commission considered it essential that the present articles should
contain procedural safeguards against the possibility that the nullity ... of a tre-
aty may be arbitrarily asserted as a mere pretext for getting rid
of ingonvenient obligations» (Comment tany, 34. fmphasis
added).
39. Israel, for instance, commented at the 54th meeting of the Committee of
the Whole :
[Draft article 50] is not a case of possible invalidation but of real invalidity.
The invalidity is, therefote, objective and leaving aside any question of State
responsibility, it could be asserted by any State or any International Organi-
zation aware of the invalid treaty.
Also, see Portugal, 40th meeting of the Committee of the Whole. (UNGLT Of-
ficial Records, irst Session).
The Sanctioning Power of the Jus Gogens Norms 17

France proposed the following formulation:

A party which, under the provisions of the present Convention,

invokes either a defect in its consent to be bound by a treaty
or a ground for impeaching the validity of a treaty, terminating
it, withdrawing from it or suspending its operation, must notify
the other parties of its claim.*

In supporting the above amendment, the French representative

explained that the wording of draft article 62 of the International Law
Commission gave the impression that its letter covered only cases of
invalidity based on a defective consent. That impression created the
misconception that for cases falling under draft articles 48, 49 and 50
(present articles 51, 52 and 53) no recourse to the compulsory machi-
nery of invocation of invalidity was provided for. Consequently, Sta-
tes parties to the Vienna Convention could assume that they were
not obliged to follow the procedure of draft article 62 in cases of a
ground of invalidity falling under those articles. «The possible conse-
quence of that anomaly», Rosenne writes, «would be to enable any
party to a treaty unilaterally to claim invalidity on the very grounds
which were most difficult to establish and to open the way to
States other than the parties to“benefit by the
rivalidity provided for “by these “arrive! es
The amendment proposed by France was adopted by the Confe-
rence, thus modifying the original text of paragraph 1 of article 65.”
Consequently, by that adoption States excluded the possibility of in-
vocation of invalidity of an illegal treaty by a third party, whether
a party to the Vienna Convention or not, since the letter of article
65 refers exclusively to a party to a contested treaty as the sole sub-
ject able to set in motion the machinery for its invalidation.
That the word « [a] party», which opens article 65, means a party
to the contested treaty and not a party to the Vienna Convention is
easy to prove. The text of the Convention offers numerous instances
where the word party has the exclusive connotation of a party to a
treaty governed by the law of the Convention (and not of any party

40. A/CONF. 39/C.1/L.342.

41, «The Settlement of Treaty Disputes under the Vienna Convention», 35.
42. The amendment was adopted at the 80th meeting of the Commitee of the
Whole, by 39 votes to 31, with 20 abstentions. (ONCLT Official Reecrds
Irst Session).
118 The Concept of Jus Cogens

to the Convention): First, article 2 of the Convention in its alinea (a)

reads: « ‘treaty’ means an international agreement concluded in writ-
ten form and governed by international law...»; the same article in
its alinea (g) reads: « ‘party’ means a State which has consented to
be bound by the treaty and for which the treaty is in force». It fol-
lows that the «party» of alinea (g) is the party to the «treaty» of
alinea (a) which is a treaty governed by the Vienna Convention.
Secondly, in the sole instance that the text of the Convention re-
fers to a party to that instrument, the word «party» takes a capital
letter.
Thirdly, whenever the text refers to the Vienna Convention the
latter is called «the present Convention», not a «treaty».
Finally, whenever the word «party» or «parties» is mentioned
in the individual articles of the Vienna Convention it always concerns
parties to treaties to be governed by the stipulations of the Vienna
Convention.
The fact, therefore, that the procedure of invalidation provided
by article 65 is a compulsory procedure to be followed by all parties
to the Vienna Convention for all unexceptionally the claims of inva-
lidity of treaties to which they are parties and, further, that this pro-
cedure can be invoked solely by a party to a contested treaty, ex-
cludes the possibility of an erga omnes invocation of invalidity
even for cases falling under article 53.
The exclusion of the erga omnes_ invocation of invalidity
of an illegal treaty is total for the parties to the Vienna Convention
which are not also parties to the illegal treaty. In the first place, they
cannot invoke the invalidity through article 65 of the Convention since
the very letter of that article prevents them from doing so. Moreover,
they cannot, as parties to the Vienna Convention, invoke the invalidity
through other means since the Vienna Convention, and specifically
its article 42, paragraph 1, prohibits the recourse of its parties to any
means for impeaching the validity of a treaty other than those pro-
vided by it. The sole weapon left, therefore, to the parties to the Con-
vention but not parties to an illegal treaty is to invoke the illegal
character of the latter before a political organ (such as the United Na-.
tions General Assembly) or to raise, if possible, a question of interna-
tional responsibility of the States parties to that treaty.”
43. This occurs in the Preamble of the Convention : «The States Parties to
the present Convention...».
44. Cf. infra, 135, Note 66.
The Sanctioning Power of the Jus Cogens Norms 119

It may be concluded from the above discussion tha another fea-

ture of the type of invalidity under article 53 is the lack of an erga
omnes. invocation of the illegality of a treaty through the machi-
nery of the Convention. Actually, therefore, the type of invalidity un-
der article 53 does not drastically differ, with respect to the right of
invocation ratione personnae, from the type of invalidity
under articles 46 to 52 despite the substantive difference between these
two categories of grounds of invalidity. The sole difference between
the type of invalidity under articles 46 to 50 (and, in the last analy-
sis, under articles 51 and 5245) and the type of invalidity under ar-
ticle 53, in this respect, is that while in the former there is always
a specific beneficiary having the exclusive right to invoke the inva-
lidity, in the latter any _ party to the illegal treaty may do so. In
other words, while under articles 46 to 50 only the party whose con-
sent to be bound by a treaty is defective has the right to invoke that
fact with the purpose of impeaching the validity of its consent or of
the treaty, under article 53 any party to an illegal treaty may object
to its validity.
The above difference is quite explainable in view of the special
nature of the jus cogens_ invalidity. In the circumstances of a
treaty conflicting with a jus cogens_ norm there is legal inte-
rest on the part not only of a sole State but of the international com-
munity at large. Therefore, all the States of the community should
actually have the right to impeach the validity of an illegal treaty,
including, of course, the parties to the latter. Unfortunately, from that
large number of legitimate contestors of an illegal treaty, the Vienna
Convention chose only the parties to such a treaty to be the sole exe-
cutors and trustees of the international community. Indeed, the ar-
rangement of the Convention represents the minimum _ that a
legal order could offer for the objective extinction of an illegality.
From the point of view of legislative policy, article 65, paragraphs
1 and 2, seems quite inadequate to fulfil the purpose for which arti-
cle 53 has been adopted. By leaving the question of invalidation to
be settled exclusively by the parties to an illegal treaty, the interna-
tional community having no right to act, this article creates a type
of invalidity whose invocation depends entirely on the will of the par-
ties; the very same parties, that is, which voluntarily, by and large,

45, Supra, 107, Note 23:

120 The Concept of Jus Cogens

contributed to the illegality. This virtually alters the nature of the

ground of invalidity under article 53 as a ground protecting the ge-
neral interests of the world society. In the sphere of international law
where the notion of nullity and the notion of effectiveness fight con-
stantly against each other, the exclusion from third States of the right
of invocation of invalidity may prevent the operation of the Jus co-
gens norms as an instrument for the enforcement of law and order
thus causing serious damage to their legal aim.
The question now is whether there is any way at all, outside the
machinery of the Vienna Convention, for the invocation of the inva-
lid character of a defective treaty by States which are neither parties
to such a treaty nor parties to the Vienna Convention. It is possible
that the concept of jus cogens may develop more freely in the
sphere of customary law to the extent of also embracing the erga
omnes invocation so that States non-parties to the Vienna Con-
vention — or all the States of the international community if the Vienna
Convention never comes into force — would also have the right to in-
voke the invalidity of an illegal treaty.
However, the position taken by the Conference in Vienna through
the adoption of article 65 of the Convention is indicative of the po-
sition that States would probably also take vis-a-vis the problem of
the erga omnes _ invocation in customary law. Indeed, if they
were reluctant to accept this scheme in a conventional arrangement
where at least some control would have been exerted by a careful as-
sertion of their will, how could they be expected to accept it in the field
of customary law where, admittedly, it could be more freely shaped
and interpreted? Moreover, even if the concept developed in such a
way in the area of customary law as to allow an erga omnes
invocation, the lack of compulsory means for the settlement of dispu-
tes would certainly challenge the effective functioning of the scheme.
Under the present circumstances of a decentralized international
legal system insofar as the settlement of disputes is concerned, the
invocation of invalidity of an illegal treaty may be made before the
authority of some international organization assigned to the preser-
vation of the international legal order, to which both the «delinquent»
and the invoking States are members. For the present, the United Na-
tions would seem as the most appropriate forum for such invocation.
However, the political organs of the United Nations are unable
to invalidate an illegal treaty; they can only exert some political pres-
sure upon the wrongdoers by means of recommendations or decisions
The Sanctioning Power of the Jus Cogens Norms 121

condemning the violation of a jus cogens norm. The sole instance

where invalidation of an illegal theaty would be feasible through the
intervention of the United Nations would be if the Security Council
decided that the violation of a jus cogens norm constituted a
threat to the international peace and security. Under such circumstan-
ces the Security Council might resolve that the illegal treaty should
be invalidated as a measure for preventing a breach of the interna-
tional peace and security, and its decision would be binding upon the
members of the Organization."
The invocation of the illegality of a treaty by third States can also
be made directly to its parties in the form of protest. However, that
kind of diplomatic step has clearly no power to invalidate a treaty.
It may only have political implications which can eventually lead to
the invalidation of the defective treaty by its parties in whose will
alone (and not in that of third parties or even of the international
community at large) that decision ultimately lies.
Considering, therefore, the loose character of international rela-
tions, one can hardly speak of an effective third party invocation. Admi-
mittedly, the era of non-recognition has not yet been surpassed. The
only effective means which presently exist with respect to the inva-
lidation of an illegal treaty are to be found in the will of its parties
or in some form of compulsory procedure offered in exceptional cir-
cumstances at the level of the semi-organized international society.”

46. The invalidation of an illegal treaty may be asked by the Security Coun-
cil on the basis of articles 39, 41 and 25 of the United Nations Charter. Article 39
reads : «The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommendations,
or decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.» Article 41 reads : «The Secu-
rity Council may decide what measures not involving the use of armed forces are
to be employed to give effect to its decisions, and it may call upon the Members of
the United Nations to apply such measures...» Article 25 reads: «The Members
of the United Nations agree to carry out the decisions of the Security Council in
accordance with the present Charter».
47. At this level, treaties other than the United Nations Charter, and, generally,
any other conventional obligations of the parties to an illegal agreement may of-
feralocus standi for non-parties to the illegal treaty to invoke its invalid
character. However, even if the parties to an illegal treaty violate,inter alia,
a pre-existing conventional obligation, the invalidation of their treaty can only be
secured if there is some form of compulsory settlement of the disputes arising bet-
ween the parties to the illegal treaty and the parties to the pre-existing conventio-
nal obligation. Also, the invalidation of an illegal treaty may be achieved if a plea
422 The Concept of Jus CGogens

In view of these inadequacies of the international law in general,

the arrangement of article 65, paragraphs 1 and 2, seems extremely
unsuccessful. Instead of attempting to remedy the deficiency of the
international society in this respect, the Vienna Convention provides
an arrangement disarming both its parties and the non-parties to it
from any possibility of invoking the invalidity of a treaty which vio-
lates a rule of law of general interest.

c. The Non- Separabilily of the Provisions af an Illegal Treaty.

Article 44, paragraph 2, of the Vienna Convention introduces what

might be called a general rule on the non-separability of a treaty’s
provisions in the event of its invalidation. It reads:
A ground for invalidating... a treaty may be invoked only with
respect to the whole treaty except as provided in the following
paragraphs...

In the following paragraph (3) the exceptions to the general rule

are formulated in a manner which seems to allow a considerable de-
gree of deviation from the ostensibly rigid rule of paragraph 2:

If the ground relates solely to particular clauses, it may be in-

voked only with respect to those clauses where:
(a) the said clauses are separable from the remainder of the treaty
with regard, to their application;
(b) it appears from the treaty or is otherwise established that
acceptance of those clauses was not an essential basis of the con-
sent of the other party or parties to be bound by the treaty as
a whole; and
(c) continued performance of the remainder of the treaty would
not be unjust.

The provision of paragraph 3 is particularly important at the pre-

sent stage of development of conventional relations. Indeed, a great

of invalidation by a non-party is made before the ICJ in the event that the parties
to the illegal treaty and the third party are parties to the ICJ Statute and have ac-
ceded to its optional clause under conditions permitting the jurisdiction of the Court
in this respect. (See article 36, paragraphs 2 and 3 of the Statute of the ICJ. Also,
Rosenne, The Law and Practice of the International Court,
364-421 ).
The Sanctioning Power of the Jus Cogens Norms 123

number of international agreements, particularly of a large participa-

tion, may contain a number of clauses which although belonging to
the same instrument differ drastically from each other as to their ra -
tio legis, the object and purpose which they intend to serve. For
that reason it would be unjust if a conventional arrangement contai-
ning a variety of rules some of which untainted with illegality, or en-
joying the consent of the contesting party, became invalidated as a
whole.
Although the rationale of the separability of treaty provisions
would seem to apply equally to cases of illegal treaties (namely, trea-
ties violating a jus cogens_ norm), the drafters of the Vienna
Convention preferred to specifically exclude such cases—as well as
the cases of treaties falling under articles 51 and 52 — from the bene-
ficial treatment of paragraph 3. Paragraph 5 of article 44 provides that
[ijn cases falling under articles 51, 52 and 53 no separation of
the provisions of the treaty is permitted.
The original draft of the fourth Special Rapporteur, Sir Hum -
phrey Waldock, on the concept of jus cogens_ provided for a
possibility of separation of treaty provisions which, as such, did not
violate a jus cogens norm.® That formula was eventually re-
jected by rhe International Law Commission which decided that it
was advisable to prohibit the separation of treaty provisions in the
circumstances falling under draft article 50. The Commission conside-
red that the jus cCogens norms are so fundamental in character
that a violation of such a norm through a conventional instrument
would always be of such primary importance as to virtually affect
that instrument in its entirety.4® The Vienna Conference accepted, in
principle, the formula of the Commission, which was eventually ado-
pted without any changes.*°

Goel GeyYeear books s2) (1963.00).

Qe byindy11.99)
50. Many discussions took place, however, before the adoption of the article,
in which the major problem proved precisely to be the acceptance or non-accept-
ance of the principle of separability. Some States opposed the formula of condit-
ional separability as it appeared in the draft article of the Commission, altogether.
(See positions, e.g., of Israel, 41rst meeting ; Spain, 42nd meeting ; Canada, 42nd
meeting. UNCLT Official Records, irst Session). A quite interesting
remark, illustrating the basic divergent positions of States, was made by the
representative of Greece, who argued that draft article 41 fell not within the
category of codification but within that of progressive —or, perhaps, progressist
124 The Concept of Jus Cogens

The formula of article 44, paragraph 5, of the Convention seems,

however, to be of a questionable legislative wisdom. By prohibiting
the separation of untainted provisions in conformity with the con-
ditions set up by the rest of the article; it does not offer any real
service to the law on invalidity, to the concept of jus cogens
or to the international community for that matter. Its real purpose
would rather seem to be the penalization of the parties to an illegal
treaty for their wrongdoing. That purpose becomes more evident if
one takes into consideration the fact that the separation of the un-
tainted provisions is allowed, ceteris paribus, for treaties
falling under article 64 of the Convention, namely for treaties beco-
ming illegal after the time of their conclusion on account of the po-
sterior emergence of anew jus cogens norm. The drafters ap-
parently felt that the law should be less severe toward treaties (and
their parties) which did not intend to violate a peremptory norm of
general international law.®! However, it appears that the drafters of
article 44 did not take into account that one of the basic goals of the
law on invalidity, as formulated in the Vienna Convention, is to pre-
serve, whenever possible, the validity of conventional arrangements.
rather than to altogether destroy it by considerations alien to that goal.
Moreover, the concept, as such, of the non-separability of the pro-
visions of illegal treaties is based on a wrong premise. The drafters
considered, as has been already pointed out, that the violation of ru-
les so fundamental as the Jus cogens norms cannot be deemed
as a secondary concern of States parties to a treaty even if incorpo-
rated in some isolated (and thereby separable) provisions of that treaty.
Hence, from a pragmatical point of view, the significance of the pro-
visions infringing a Jus cCogens norm —and the intention of the
parties reflected therein — taint the whole treaty with illegality.

— development of internaticnal law. Since the Conference, he cbserved, «was not

confronted with alex lata, the problem could be considered in terms of legislative
policy. In the circumstances, the fundamental question was whether the principle
of the integrity of a treaty was so sacrosanct that it must serve as a point of
departure. In the choice between integrity and separability, integrity might at
first sight be considered preferable, as a concept more congenial to the treaty
maker’s mind and even having a certain moral flavour, but it led to the logical
conclusion that it was better to destroy something totally than to preserve it.
partially, if that was possible. UNCLT Official Records, irst Session,
42nd meeting of the Committee of the Whole.
Dion nirias laos
The Sanctioning Power of the Jus Gogens Norms 125

The above argument may be considered valid at the present stage

of development of the concept of jus cogens when the limited
number of the proposed peremptory norms are apparently identified
with the most fundamental rules of international law. However, the
future of the concept of jus cogens should not be prejudged on
that basis. As has already been stressed, the international community
may develop, in the future, legal rules which, not withstanding their
importance for the legal order, may not be of such fundamental na-
ture as to bear the moral undertones of the present norms which ap-
parently make their violation a quite reprehensible act in the eyes
of the international community.
A future legal order may indeed be enriched by norms of jus
cogens character which will simply be of a technical nature. Un-
der such circumstances, one cannot see why provisions not violating
such a rule could not be separated from illegal provisions in the same
treaty without any harm to that treaty or to the society. Indeed, nei-
ther the character of the jus cogens norm is sacrosanct nor does
the violation have to be necessarily so fundamental as to exclude the
continuance in force of the clauses which are untainted with illegality.
After all, article 44 provides its own means of protection against
the arbitrary use of the benefit of separability. The separation of the
clauses which do not suffer from any defect is allowed only under the
condition that the invalidated clauses of the treaty do not constitute
an essential basis of the consent of the States to be bound by that
treaty, and provided that their invalidation does not block the conti-
nuing application of the remainder of the clauses.
If in the given circumstances of a treaty illegal for conflicting with
a jus cogens norm these two conditions were satisfied, the se-
paration of its legal clauses from the illegal ones would not present
the problems anticipated by the drafters: if the illegal clauses consti-
tuted, that is, the kernel of the treaty, without which the agreement
could not apply as an integral instrument, their separation from the
untainted clauses would not be possible under the letter of paragraph
3. If, on the contrary, the illegal clauses were isolated and secondary
in importance, and separability of the untainted clauses was thus per-
mitted, the very fact of the insignificance of the illegal clauses for the
operation of the remainder of the treaty would satisfy the legal order,
even morally so, since it would thus be proved that the predominant
intent of the parties, when they concluded the treaty, was not conne-
cted with the violated jus cogens norm, and aimed rather at
126 The Concept of Jus Cogens

the creation of a legal regime which would have been viable even in
the absence of the clauses violating that norm.
In any event, leaving aside the discussion de lege ferenda,
the provision of paragraph 5 of article 44 ‘stipulates unnecessarily strict.
law which seems to reflect a retributory tendency of the drafters, and
which is bound to create future problems of application that would
not arise if the adoption of that provision had simply been avoided.

d. The Irreversible Character of ihe Invalidity under Article 53.

A treaty void under article 53 cannot become valid through con-

firmation, acquiescence or the conduct of its parties. This conclusion
may be drawn from the text of article 45 ofthe Vienna Convention
which reads:
Loss of a@ Right to Invoke 4 Ground tor in
validating, Terminating, Withdrawing from
or Suspending the Operation of a Treaty.
A State may no longer invoke a ground for invalidating, termi-
nating, withdrawing from or suspending the operation of a treaty
under articles 46 to 50 or articles 60 and 62 if, after becoming
aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or re-
mains in force or continues in operation, as the case may be; or
(b) it must by reason of its conduct be considered as having ac-
quiesced in the validity of the treaty or in its maintenance in force
or in operation, as the case may be.

The drafters of article 45 contended that its provisions incorpo-

rate the principle that a party is not permitted to benefit from its
own inconsistencies (allegans contraria non audien-
dus est).°? Indeed, article 45 discourages any attempt on the part
of a State-party to a treaty to disengage itself, whenever it deems
it advisable, from an agreement which, despite its original defect, it
has already accepted expressly or through its conduct as binding upon it.
Apart from incorporating, however, the above principle, whose
foundation «is essentially good faith and fair dealing», 8 article 45 also

52. Gomme n tary, 69:

Doalebainde
The Sanctioning Power of the Jus Cogens Norms 127,

indicates another important fact: that the invalidity under articles 46

to 50 of the Convention is remediable; in other words, that it can be
cured through the will of the parties to the treaty, and more preci-
sely through the will of that party whose consent is defective, and
who therefore alone has the right to invoke that defect in order to
invalidate its consent or the treaty.
The above feature is typical of the type of invalidity which is ai-
med at protecting individual subjects of law from becoming bound by
an agreement despite the absence of their consent to that effect. For
the invalidity to be remediable, there must exist a beneficiary who
alone may judge on the advisability of invalidating or not the agree-
ment, and this can only happen, as we have seen, when the sanction
of invalidity is specifically aimed at protecting an individual interest.
Conversely, the possibility of remedy is inconsistent with the type
of invalidity which is intended to protect general social interests; the
beneficiary being in that case the society at large, no party to an a-
greement infringing a rule which protects a general concern of the so-
ciety can, or is competent to, endue that agreement with validity. Only
the society at large may decide whether to eventually accept the in-
fringement or to sanction it accordingly.
The drafters of the Vienna Convention did not fail to take into
consideration the incompatibility of the reversible invalidity with the
case of a treaty violating a jus cogens norm and to exclude,
as a result, such a possibility in cases falling under article 53 (as well
as under articles 51 and 52). In commenting on draft article 42 (pre-
sent article 45) the International Law Commission expressed the fee-
ling that it was inappropriate «that the principle should be admitted
in cases of jus cogens or of supervening jus cogens»;* the
same conviction may be evidenced in the deliberations of the Vienna
Conference which did not alter the formula of the general provision
of article 45.
The question which certainly arises with regard to the notion of
irremediable invalidity is to what extent an illegal treaty falling un-
der that type of invalidity cannot, realistically speaking, be validated
if, for some reason, it operates unimpededly in the sphere of interna-

Dea bade
55. UNCLT Official Records, 1irst Session, especially 66th and
67th meetings of the Committee of the Whole.
128 The Concept of Jus Cogens

tional law. The answer must be that under certain circumstances the
validation of a treaty illegal under article 53 in in fact possible.
Certainly, since such a treaty cannot be validated through the
conduct of its parties, its mere operation in the sphere of internatio-
nal law would not imply the deletion of its illegal character. However,
while the parties to an illegal treaty are unable to validate it, the
international community as a whole may do so through its conduct.
Indeed, a treaty operating for some time in the field of international
legal relations, may earn the acquiescence of the rest of the States
of the international community or even their express acceptance of
the legal regime that it generates. Under such circumstances, the il-
legality of the treaty would be exonerated and, consequently, the tre-
aty validated; furthermore, the law of that treaty would probably be-
come the law governing the whole international community. In other
words, instead of being irreversibly invalid, the treaty could become
a source producing new law for the community. It should be stres-
sed once more, however, that what validates the treaty is not the
conduct of the parties to it, but the general conduct of the interna-
tional community at large. Being the sole beneficiary in favour of
which a treaty is sanctioned with invalidity, the community has the
exclusine right to decide whether to validate such treaty or leave it
permanently invalid.
A validation under the above circumstances would be absolutely
legitimate and in conformity with the rationale of the irreversible in-
validity as a legal sanction protecting general interests. However, bey-
ond such de jure ‘validation, it may also be argued that in the
particular circunistances of international legal relations a de facto
validation of an irreversibly invalid treaty cannot be altogether exclu-
ded. The international legal system is and remains decentralized even
under the regime of the Vienna Convention which has introduced the
concept of jus cogens -in the law of treaties. As has been seen
in a previous discussion, the Convention provides a ground of invali-
dity in article 53 which is clearly aimed at protecting general interests.
This protective device of the community’s concerns is not, however,
backed by a number of procedural safeguards which could give effect
to its intended function. Instead of providing a procedure that would
allow all States of the community to successfully invoke the invalid
character of an illegal treaty, the Vienna Convention hermetically
closes all channels of such invocation through its machinery not only
for the non-parties to it (something which might have been conside-
The Sanctioning Power of the Jus Cogens Norms 129

red as reasonable) but also for the parties to it but not parties to the
illegal treaty. As a result, the character of invalidity under article 53
actually deteriorates into a matter of «private» concern to be settled
between the parties to the illegal treaty.
In view of the inability of the international legal system to san-
ction illegalities in the absence of a specific machinery to that effect,
cases may be conceived where a de facto validation of an ille-
gal treaty would be possible. An international agreement comes into
being and operates in order to serve some specific purposes of the par-
ties to it through the creation of certain facts and situations. If an
illegal treaty operates unhindered in the international field for the time
that it needs to achieve its purported function and if, moreover, its
results remain intact for as long as that was intended by the parties,
one might safely claim that this treaty has been validated de fa-
cto. For it is of little value if the treaty is in theory irreversibly
invalid if the law is unable to impose in time the due sanction. After
all, invalidity is not an abstract notion of a theoretical value. It is
a legal device having pragmatic purposes and service real needs. If the
sanction of invalidity cannot check the illegality prior to its causing
harm to the legal structure, or, ar least, before all its effects are fully
developed, an ex post facto restitution, if at all achieved, is
not likely to satisfy the international order.
In terminating the discussion on the irreversible character of the
invalidity under article 53, it may be concluded that despite all the
difficulties involved in its establishment, the fact remains that the let-
ter of article 45 of the Convention intended to prohibit any possibility
of cure of an illegal treaty by the consent of its parties. This should
be considered, therefore, as another characteristic of the type of inva-
lidity provided by article 53 of the Convention.

e. The Retroactive Invalidation of an Illegal Treaty.

The Vienna Convention comprises a separate article on the con-

sequences of invalidity resulting from a violation of a Jus cogens
norm. Article 71, entitled «Consequences of the Invalidity of a Treaty
which Conflicts with a Peremptory Norm of General International Law»,
consists of two paragraphs: the first deals with the consequences of
the invalidity affecting a treaty falling under the letter of article 53,
while the second deals with the consequences of the termination of a
9
130 The Concept of Jus Cogens

treaty falling under the letter of article 64. The first paragraph of that
article reads:
In the case of a treaty which is void under article 53 the par-
ties shall: _ ;
(a) eliminate as far as possible the consequences of any act per-
formed in reliance on any provision which conflicts with the pe-
remptory norm of general international law; and
(b) bring their mutual relations into conformity with the perem-
ptory norm of general international law.

In analyzing, therefore, the consequences affecting a treaty inva-

lidated in accordance with the machinery of article 65 (and article 66
as well ®*) the following conclusions may be drawn:
First of all, the illegal treaty, as an instrument of rights and obli-
gations, is altogether extinguished. The introductory phrase of article
71, paragraph 1, stresses that the treaty is void. The meaning which
should be attached to this wording must however be concordant with
the conclusions drawn from the examination of the machinery of in-
validation provided by the procedural provisions of the Convention;
in brief, the term «void» must be taken as meaning that if the il-
legal treaty is invalidated in accordance with the machinery of the
Convention, then the character of the invalidity affecting it is abso-
lute and the instrument is as if it never existed.
Secondly, the results produced by the operation of an illegal tre-
aty during the-time that it functioned regularly in the international
system, are also affected. Indeed, the parties to an illegal treaty are
obliged to eliminate «as far as possible» all the consequences of the
operation of their treaty’s illegal provisions. The invalidation, there-
fore, of an illegal treaty is retroactive: it goes back to the time of
the conclusion of the illegal treaty with the intent to efface all its
consequences. The optimum _ goal of such retroactive invalidation
is to eliminate all the results of the committed illegality unexceptio-
nally in order to achieve the restoration in full of the status existing
before their appearance.
Yet, although alineas (a) and (b) of paragraph 1 of article 71 wi-
tness that the intention of the drafters was to provide an arrangement
of retroactive invalidation, their wording leaves some room for a more

96, Infra, 1169;

The Sanctioning Power of the Jus Cogens Norms 131

lenient treatment of the effects of an illegal treaty. In the first place,

alinea (a) provides that the elimination of the consequences must take
place as far as possible. Moreover, the same alinea provides that the
elinination refers only to consequences of acts which were performed
in reliance on any provision conflicting with anorm of jus cogens.
With respect to the first point, the words «as far as possible» are
indeed quite problematic. Nowhere in the preparatory work is a word
of explanation to be found concerning that ostensibly innocuous phrase.
Although it did refer to these words both in its draft articles and
in its commentaries to them, the International Law Commission ap-
parently considered that they were self-explanatory and did not pro-
ceed to any clarification.” The same is true of the Conference in Vienna
where the meaning of these words was also left undiscussed.
In reality, however, these words might not be as inoffensive as
they seem to be prima facie. Their inclusion in article 71 ®
introduces an element of uncertainty as to the exact scope of the eli-
mination of the consequences of an illegal treaty in the event of its
invalidation. They actually give the impression that the drafters fa-
voured the idea of permitting a certain freedom in the determination
of what should be extinguished from the consequences and what should
not. Indeed, no other reasonable construction may be given to these
words.
Normally, the extinction of the consequences of a legal act can
always be achieved. From a legal point of view, there is not problem
of «possible» or «impossible». This is not to say, of course, that the
re-establishment of the status quo ante may be in na-
tura in all cases and that the extinction of the consequences of an
illegal treaty may always reconstruct the physical situation which exi-
sted prior to their creation through the operation of the treaty. This

57. Paragraph (3) of the Commission’s Commentary on draft article 67 (pre-

sent article 71) reads:
«Paragraph 1 requires the parties to a treaty void ab initio under ar-
ticle 50 first to eliminate as far as possible the consequences of any act done
in reliance on any provision which conflicts with the rule of jus cogens,
and secondly, to bring their mutual relations into conformity with that rule.
The Commission did not consider that in these cases the paragraph should con-
cern itself solely with ensuring that the parties restored themselves to a posi-
tion which was in full conformity with arule of jus cogens.» (Commen-
Har yan 86))e
58. Cf. also the wording of article 69 of the Convention.
132 The Concept of Jus Cogens

can be extremely difficult in the circumstances of international re-

lations as it admittedly is in those of any human relations. However,
when a restitution in natura- is not possible, or desirable, re-
course to other means may be had which, from a legal point of view,
are also considered as extinguishing the consequences of an illegality
and restoring the previously existing situation. Such are, for instance,
the pecuniary compensation of the victims of an illegality, or other
arrangements which duly satisfy the States or human beings who suf-
fered from an illegality. These devices which substitute the in na-
tura_ satisfaction are considered by many legal systems as quite ac-
ceptable means of restitution.
In consequence, since elimination, in one form or another, is le-
gally always feasible, the words «as far as possible» must have a mea-
ning which goes beyond the problem concerning the possibility of the
re-establishment of the status quo ante. That wording may
be construed as meaning that the drafters of the Convention felt it
desirable to leave untouched certain acts or situations which were pro-
duced as a result of the operation of the illegal treaty. But if so, which
would be these acts or situations and who would decide on their extin-
ction or non-exinction?
Certainly, an interpretation concerning the exact scope of the phrase
«as far as possible» may eventually be established through a relevant
jurisprudence as and when the Vienna Convention comes into force
and begins to apply. As it is, the inclusion of that phrase in the text
of article 71 might create considerable problems in the future appli-
cation of the system of invalidity under the Convention by its being
susceptible to arbitrary interpretations on the part of former parties
to an invalidated treaty. Such situations would be particularly dan-
gerous to the efficient operation of the system of invalidity, especially
if the settlement of disputes on the specific measures to be taken in
order to give effect to the invalidation of an illegal treaty did not fall
under the provisions on the settlement of disputes of paragraph 3 of
article 65 and, subsequently, of alinea (b) of article 66 of the Conven-
tion.®?
In other words, if the specific measures to be taken with a view
to carrying out the invalidation by extinguishing the consequences of
the invalidated treaty are covered by the scope of the term «measure»
of paragraph 1 of article 65, and if, consequently, an objection to

59. Infra, 178 et. s.eq:

The Sanctioning Power of the Jus Cogens Norms 133

such measure is covered by the term «objection» of paragraphs 2 and

3 of that same article, then such specific measures and any disputes
arising therefrom, are equally covered by the machinery of article 65,
paragraph 3, as well as by that of article 66, alinea (b). If it were
not so, namely if the nature and the scope of the specific measures
were left to be freely settled after the invalidation of the illegal tre-
aty, then the provision, at least, of alinea (b) of article 66 would noi
apply.
Yet, as will be seen later, such an interpretation should be ex-
cluded. Indeed, the most reasonable approach to the above question
is that the provision of article 71, paragraph 1, is inseparably con-
nected with the «measure» to be taken in accordance with article 65,
paragraph 1. As a consequence, the proposed details of invalidation
must be included either in the notification of the contesting State or
in the negotiations following such notification. In any event, the exi-
stence of an objection as to the application of the provisions of ar-
ticle 71, paragraph 1, is a valid objection which, though not able
to prevent the invalidation as such,®! may nevertheless set in motion
the machinery of the settlement of disputes of the Convention. The-
refore, any problems of interpretation, including the interpretation
of the phrase «as far as possible», can be definitely settled, at least
for the purposes of each particular case.
The second point of article 71 indicating a certain leniency to-
wards the effects of an illegal treaty is the phrase «any act performed
in reliance on any provision which conflicts with [a Jus cogens
norm] », which is also to be found in the first paragraph of that ar-
ticle. That phrase reveals that the drafters did not wish to affect the
consequences of an illegal treaty which originate from provisions un-
tainted with illegality.
The wisdom of that provision can hardly be disputed. It is con-
ceivable that one or more provisions of a treaty conflicting with a
jus cogens_ norm may be prefectly lawful. During the opera-
tion of the illegal treaty, these provisions may produce effects (acts
and situations) which are in turn lawful. The drafters rightly felt that
such effects should not be eliminated by the retroactive sanction of
article 71. It appears that this treatment is in line with the needs of
the international legal relations. Moreover, by reason of its clear wor-

GOsein fer aen ho olts

Cimon pied Ad th
134 The Concept of Jus Cogens

ding, this provision is not likely to burden the process of the re-
establishment of the status quo ante with vague notions al-
lowing multifarious and far-reaching constructions, as is the case with
the phrase «as far as possible» discussed: in the previous paragraphs.
The above formula was proposed by the Commission which fol-
lowed here a line totally different from its previously discussed at-
titude on the non-separability of the provisions of an illegal treaty.
Although the philosophy lying under the two arrangements (that of
paragraph 5 of article 44 and that of paragraph 4 of article 71) is
essentially the same, the treatment is unnecessarily different: here the
Commission makes a distinction between an illegal provision and a
legitimate one; there it does not.® As a result, it produces two pro-
visions which are contradictory. Indeed, although an act or situation
may continue its life not relying on any conventional provision, there
might be cases where the continuance in force of such an act or si-
tuation would depend upon the continuance in force of those provi-
sions of the illegal treaty from which it emanated. However, the con-
tinuance in force of those provisions would not be permitted by the
application of article 44, paragraph 5, on the non-separability of tre-
aty provisions and, consequently, the act or situation would also be
extinguished unable to profit from the provision of article 71, para-
graph 1,8
In examining now alinea (b) of paragraph 1 of article 71 (accor-
ding to which the parties to a void treaty must bring their mutual
relations into conformity with the peremptory norm of general inter-
national law) it would suffice, in order to illustrate the rationale behind
it, to cite from the relevant commertary of the International Law Com-
mission:
The nullity of a treaty ab initio. by reason of its conflict
with a rule of jus cogens in force at the time of its conclu-
sion is a special case of nullity. The question which arises in con-

6295S) Usp ma 22h

63. Under such circumstances, the continuance in force of the untainted pro-
visions could be achieved by ade facto agreement of the parties to the inva-
lidated treaty ; or, the parties wishing the continuance of the consequences of the
invalidated treaty could proceed to the conclusion of another agreement to that
effect. In either case, anyway, the continuance in operation of the relevant provi-
sions would rely on a new agreement and not on the invalidated one. For such
continuance, therefore, the consent of the parties would de required in novo.
The Sanctioning Power of the Jus Gogens Norms 135

sequence of the invalidity is not so much one of the adjustment

of the position of the parties in relation to each other as of the
obligation of each of them to bring its position into conformity
with the rule of jus cogens.®

As the above passage of the Commentary indicates, alinea (b)

of paragraph 1 is intended to serve the need of uniformity in the le-
gal order which is a basic quest of the concept of jus cogens.
Unlike article 69 of the Vienna Convention, dealing with the conse-
quencses of the invalidity of treaties falling under articles 46 to 52,
which is intended to provide an arrangement based exclusively on a
concern for the mutual rights and interests of the parties to an in-
validated treaty, article 71 is concerned, furthermore, with the pro-
tection of the legal order. The general and broad provision of its ali-
nea (b) has the capacity of embracing all those acts or situations which
alinea (a) may leave unaffected. Beyond the direct consequences of
their illegality, the parties to an illegal treaty must efface all other
acts or situations (even if only affecting themselves) which, although
not falling under the rubric of «consequences», in the sense that they
are only peripherally connected with the illegal treaty, may never-
theless have a significance for the legal order. Hence alinea (b) in-
corporates a strong protective device for the preservation of the le-
gal order, and is, therefore, an excellent safeguard of the special fun-
ction of the jus cogens norms.® |

64. Commentary, 86.

65. The relevant part of article 69 reads:
2. If acts have nevertheless been performed in reliance on such a treaty : (a)
each party may require any other party to establish as far as possible in
their mutual relations the position that would have existed if the acts had
not been performed ; (b) acts performed in good faith before the invalidi-
ty was invoked are not rendered unlawful by reason only of the invalidity
of the treaty.
66. It is beyond doubt that alinea (a) of article 71, paragraph 4, raises in a di-
rect fashion a question of international responsibility. Indeed, the quest for the re-
establishment of the status quo ante which is made in that alinea is a quest
of reparation reminiscent of the famous dictum of the PCIJ inthe Chorzow
Factory case. («The essential principle contained in the actual notion of an il-
legal act ... is that reparation must, as far as possible, wipe out all the consequen-
ces of the illegal act and re-establish the situation which would, in all probability,
have existed if that act had not been committed». See PCIJ Series A, No 17, 47).
The reparation must take place through the previous establishment of the responsi-
bility of the parties with respect to the specific acts, actions and situations created
136 The Concept of Jus Cogens

The application of the provisions of article 71, paragraph 1, is

the last step to be taken by the parties to an illegal treaty following
their agreement on the invalidation ‘of their instrument. That article
constitutes an integral part of the system of invalidity of the Con-
vention and is applied compulsorily as all other provisions of Part V
of that instrument. As a consequence, States-parties to an illegal tre-
aty are not allowed to deviate in their settlement of the details of
invalidation from the guidelines provided by article 71. Any effort to
provide their own arrangement would constitute a violation of the
Vienna Convention.

In terminating our discussion on the type of invalidity under ar-

ticle 53, it may be concluded that the examination of the aggregate
of the articles of the Convention pertaining to the application of the
sanction under that article has shown that the type of invalidity af-
fecting a treaty illegal by reason of its conflict with a jus cogens
norm is a special case of nullity. Although bearing some resemblance
to what is called in a number of legal systems (international law in-
cluded) «absolute nullity», its most familiar feature being in this re-
spect its retroactive and irreversible character, it nevertheless differs
substantially from that type of invalidity in one fundamental point:
although theoretically brought about ipso jure, in reality
it has to be established through the common consent of the parties
to the treaty whose legality is contested.
The consensual character of the invalidation of an illegal treaty,
which is admittedly one of the most important features of the type
of invalidity affecting such treaties, is stipulated, as has been seen, by
article 65 of the Convention. Aside from all theoretical considerations,
that article, which is, therefore, chiefly responsible for the actual type
of invalidity under article 53, must be appraised on the basis both
of its positive and its negative aspects. Its main positive contribution

at the time of the operation of an illegal treaty. The «distribution» of the collective
responsibility of the parties to the individual parties concerned must take place in
accordance with the usual rules on responsibility as they have been accepted in
customary international law since the Vienna Convention does not contain speci-
fic rules on that matter. (Article 73 of the final text, entitled «Cases of State Suc-
cession, State Responsibility and Outbreak of Hostilities», states that «[tJhe pro-
visions of the present Convention shall not prejudge any question that may arise
with regard to a treaty from a succession of States of from the international respon-
sibility of a State of from the outbreak of hostilities between States». )
The Sanctioning Power of the Jus Cogens Norms £37

is that it safeguards the stability of treaties, which is a fact of pri-

mary importance for the international community. Indeed, the ar-
rangement for a consensual invalidation should undoubtedly discou-
rage unilateral false allegations. On the other hand, however, the ex-
clusion of third parties from the machinery of invocation ofinvalidity
provided by the Convention (and, as a consequence, from the machi-
nery of the settlement of jus cogens disputes) is an unfortunate
disservice done to the concept of jus cogens. That sole characteri-
stic has the power not only to radically dissociate the type of inva-
lidity affecting treaties illegal under article 53 from any existing coun-
terparts of other legal systems, but also to threaten the functional
capacity of the concept of jus cogens under the Vienna Con-
vention.

2. The Termination of Treaties in Accordance with the Provisions

of the Vienna Convention.

Article 64 of the Vienna Convention, entitled «Emergence of a New

Peremptory Norm of General International Law (Jus Cogens)»
will be analyzed in conjunction with the rest of the provisions of the
Vienna Convention which are intended to implement its sanction, on
the model of our examination of article 53 of the previous section (1).
In a first subsection (A) an analysis of the ground of termination shall
be made, while in a second subsection (B) the type cf termination
and its consequences will be established.

A. Article 64 as a Ground of Termination

As has already been mentioned, article 64 organically belongs to

Section 3 of Part V of the Vienna Convention, referring to the «Ter-
mination and Suspension of the Operation of Treaties». Furthermore,

67. The other articles on Termination under the Convention are the following :
article 54 (Termination of or Withdrawal from a Treaty under its Provisions or
by Consent of the Parties)‘ article 55 (Reduction of the Parties to a Multileteral
Treaty Below the Number Necessary for its Entry intro Force) ; article 59 (Termi-
nation or Suspension of the Operation of a Treaty Implied by Conclusion of a La-
ter Treaty) ; article 60 (Termination or Suspension of the Operation of a Treaty
as a Consequence of its Breach ) ; article 61 (Supervening Impossibility of Perfor-
mance) ; article 62 (Fundamental Change of Circumstances) ; article 63 (Seve-
rance of Diplomatic and Consular Relations)
138 The Concept of Jus Cogens

it has been seen that the article stipulates that in case of an emer-
gence of a new jus cogens norm, any treaty conflicting with
that norm «becomes void and terminates». In other words, the
violation of anew jus cogens norm by a treaty concluded prior
to its emergence constitutes a ground of termination. Unlike, however,
the rest of the grounds on termination under the Vienna Convention
which are intended to protect the individual interests of the parties
to a treaty, article 64 is intended to protect the general interests of
the international community.
The fact that article 64 is a ground of termination and not a ground
of invalidity for the purposes of the Convention raises a question which
should be briefly discussed at this point. The question simply is whe-
ther by being included within the section on «Termination» of the
Convention, article 64 does not acquire a residual character with re-
spect either to the sanction that it incorporates or to the rest of the
provisions of the Convention which are intended to implement that
sanction. To be more specific, it must be reminded that all articles on
termination of the Vienna Convention are governed by paragraph 2
of article 42 which reads:
The termination of a treaty, its denunciation or the withdrawal
of a party, may take place only as a result of the application of
the provisions of the treaty or of the present Convention. The
same rule applies to suspension of the operation of a treaty.

The meaning of that paragraph of article 42 presumably is that

the question of termination of treaties, unlike that of invalidity, may
be legally arranged either through the application of the Vienna Con-
vention or through provisions on termination contained in individual
treaties. Indeed, the formulation of the paragraph is such that it may
allow the construction that if a treaty comprises some specific pro-
visions determining its own conditions and procedure of termination,
then the parties to that treaty may choose to apply their own pro-
visions and not those of the Vienna Convention which become, there-
fore, residual in character.
lf the above interpretation is accepted, it must also be accepted
that the sanction provided by article 64 (and implemented by arti-
cles 65, 66 and 71 ®*) would apply only residually, that is to say, only

68. Infra, 155, 168 and 146 respectively.

The Sanctioning Power of the Jus Cogens Norms 139

in case that the parties to an individual treaty do not choose to ap-

ply the latter’s provisions on termination. One could argue, of course,
that the above three articles, through which the sanction of article
64 is basically effectuated, have a peremptory character not permit-
ting contrary or different arrangements by individual treaties. Howe-
ver, such an argument could not be easily sustained since paragraph
2 of article 42 does not seem to distinguish between some grounds
of termination with respect to which the application of the implemen-
ting articles on termination is compulsory and others for which it is
not. On the contrary, the legal arrangement of paragraph 2 seems to
be uniform for all grounds of termination.
The possible subordination of the ground of termination of arti-
cle 64 to the provision of paragraph 2 of article 42 was discussed du-
ring the deliberations of the Vienna Conference and many States poin-
ted out that the likelihood of such an interpretation could mean the
destruction of the whole legal edifice of the concept of jus cogens
and its sanctioning power. Two amendments were therefore introdu-
ced to the effect of removing draft article 61 (present article 64) from
the section on termination and adding to the text of draft article 50
(already in the section of invalidity) a second paragraph containing
the substance of draft article 61.° Those amendments seeked to
bring the ground of termination of draft article 61 under the regul-
ation of invalidity and, hence, under the arrangement of paragraph
1 of draft article 39 (present article 42) dealing with invalidity and
providing for the compulsory application of the implementing pro-
visions of the Vienna Convention.
The proposed amendments were eventually withdrawn because
many States proved unwilling to accept the repercussions that the pro-
posed transfer would have.” However, the discussion on the meaning

69. A/CONF. 39/C.1/L.255 and A/CONF. 39/C. 1/L. 254. The text of the se-
cond amendment (which proposed the incorporation of draft article 61 to draft ar-
ticle 50) had as follows : «If a new peremptory norm of general international law is
established any existing treaty which is in conflict with that norm becomes void».
At the 52nd meeting of the Committee of the Whole this amendment was withdrawn
(UNCLT Official Records, irst Session).
70. They feared that transposition of the provision of draft article 61 under the
section on invalidity and its rewording would have as a result the alteration of the
nature of the sanction of that draft article from one of ex nunc termination to
one of ex tunc invalidity. It would appear, however, that no such danger would
have arisen since, in any event, the retention of the provisions on the jus cogens
emergens implementing the sanction of the substantive article would have
been (as they have actually been) retained.
140 The Concept of Jus Cogens

of paragraph 2 of article 42 as well as the effort to find a solution

which would correct the discrepancies of the arrangement went on.
Eventually the Expert Consultant, Sir Humphrey Waldock, came out
with an explanation with respect to that problem which is recorded
as follows:
With reference to the relation between article 39, paragraph 2,
and the rule laid down in article 61, that any treaty became void
and terminated if it conflicted with a new peremptory norm of
general international law he [Waldock] said that he did not think
that the issue raised by the Indian representative [the problem
of the relationship between the draft article 39, paragraph 2, and
the draft article 61] was very likely to arise. The words «only as
a result of the application of the terms of the treaty or of the
present articles» should be read in their context namely «a tre-
aty may be terminated or denounced or withdrawn from», and
then it was clear that the application of the «terms of the tre-
aty» and the application of «the present articles» were separate
cases and the two provisions were cumulative.”

However, the explanation of Sir Humphrey does not seem to eli-

minate, beyond dispute, the difficulties involved in the interpretation
of article 42, paragraph 2. If what is meant by the above statement.
is that the phrase «a treaty may be terminated» is exclusively rela-
ted to the phrase «the present articles» (the Convention), while the
phrase «the terms of the treaty» refers to the denunciation of or with-
drawal from such a treaty (an interpretation which would have been
more probable under the wording of the draft article as compared to
the final one), then one does not see why termination was not inclu-
ded under the provision of paragraph 1 of article 42. If, on the other
hand, the above statement means that some of the grounds of the
Convention on termination would allow the application of the indivi-
dual arrangements of particular treaties while others, by their nature,
would not, then one could argue that although such an interpretation
would seem reasonable and in conformity with the spirit of certain
grounds of termination, the fact is that the wording of paragraph 2
clearly indicates that not only certain but all the grounds of termi-
nation under the Convention fall within the scope of article 42, pa-

71. UNCLT Official Records, rst Session, 40th meeting of the

Committee of the Whole.
The Sanctioning Power of the Jus CGCogens Norms 141

ragraph 2, which makes the application of the implementing articles

residual in character.
In any event, it is to be hoped that any bona fide _ interpre-
tation will admit that the special nature of the concept of jus co-
gens should not be threatened by the application of provisions o-
ther than those provided by the Vienna Convention — to the extent,
at least, that such provisions would be less severe and effective than
those stipulated by the convention —and that the need for the eli-
mination of fundamental illegalities in the legal order can be served
only whem a uniformity is secured with regard to the quality and
degree of sanction affecting violations of a jus cogens norm.
It seems that the incorporation of article 64 into article 53 would
have been a sound solution dissipating all ambiguities as to the exact
provisions to be applied. However that solution was rejected by the
States at the Conference as it had also been rejected by the Interna-
tional Law Commission for reasons which will be discussed in the fol-
lowing paragraphs.

B. The Type of Termination under Article 64 and the Consequences

The arrangement of termination provided by article 64 of the Con-

vention seems quite appropriate for the material circumstances of the
cases falling under that article. In principle, termination means the
ex nunc extinction of an illegal treaty, namely its extinction for
the future which «cannot of itself prejudice any right definitively and
finally acquired under the treaty».72 Thus, termination may suit all
cases in which a treaty was legitimate when it came into force, and
where, as a result, an invalidation ab initio, affecting the tre-
aty from the time of its conclusion would be not only unjust but also
legally absurd.
The idea of proposing a draft article to deal separately with the
case of jus cogens emergens or superveniens be-
longed to the International Law Commission. The draft article 61 which
was presented to the Conference of the representatives was almost iden-
tical to the final article and was already contained in the Section on
«Termination». In explaining the necessity of drafting two articles
ONG Us: 6 oge ns, instead of one, the Commission made the fol-
lowing remark:

72. Parry, «The Law of Treaties», 240.

142 The Concept of Jus Cogens

The Commission discussed whether to make this rule part of ar-

ticle 50, but decided that it should be placed among the articles
concerning the termination of treaties. Although the rule opera-
tes to deprive the treaty of validity, its effect is not to render it
void ab initio, but only from the date when the new rule
of jus cogens_ is established; in other words it does not
annul the treaty, it forbids its further existence and performance.
It is for this reason that the article provides that «f a new
peremptory norm of general international law... is established»,
a treaty becomes void and terminates.”

The term «terminates» preceded by the words «becomes void»

of the text of the draft article 61 occasioned some lengthy discussions
in the Conference. It seems that there was a certain confusion over
the exact significance of the association of these two terms with respect
to the legal nature of the sanction under the article. The starting point
of the discussion was an amendment proposed by Chile with a view
to modifying the phrase of the draft «becomes void and terminates»
so as to read «may be objected to with a view to its termination».%
As the Chilean representative explained, the purpose of that amend-
ment was to avoid the use of the words «becomes void» and «termi-
nates» as being synonymous. In explaining the motives of his propo-
sition he said:

For Chile and for some other countries the two terms were not
synonymous, since nullity did not always coincide with invali-
dation through some circumstances arising subsequent to the
conclusion of the treaty. Some delegations were able to accept
that a subsequent ground could render a treaty void but that
view presented difficulties for others. The purpose of [the |amend-
ment was to solve the problem of the two different approaches
by avoiding a reference to nullity and referring only to the ter-
mination of the treaty, which led in practice to the same result.76

73. It read: «If a new peremptory norm of general international law of the
kind referred to in article 50 is established, any existing treaty which is in conflict
with that norm becomes void and terminates».
74. Commentary, 814.
79. Ay GONE. 39/l. 34/ Corr. in
76. UNCLT Official Records, 2nd Session, 22nd Plenary meeting.
The Sanctioning Power of the Jus Cogens Norms 143

The basic reason of confusion «for Chile and for some other coun-
tries» was the fact that in civil law countries, nullity and termination
are two distinct concepts which while bearing the common characteristic
of extinguishing a contractual instrument, have a different function
and legal ratio.” For that reason, the Chilean amendment provo-
ked a series of favourable comments by many representatives, mainly
from civil law countries, who vacillated over the exact legal nature
of the sanction of jus cogens under draft article 61.
The discussion on the Chilean amendment brought into light the
divergence of views existing on that matter. The majority of States
which expressed an opinion were inclined to accept that the sanction
under draft article 61 was a nullity ab initio and not termina-
tion in the proper sense. At any rate, the Chilean amendment was
rejected because States felt that its proposed reformulation of the draft
article 61 would change the nature of the sanction from one which
renders a treaty «void» to one which renders it «voidable» with all
the attendant consequences.”
Again, the study of the records of the Conference shows that Sta-
tes discussed in rather vague and theoretical terms problems whose
solution was offered by the very text of the then draft articles. Article
64 has (as did already draft article 61) its own implementing provisions
within the Vienna Convention, both general and particular. One should
therefore turn to these provisions in order to detect the particular fea-
tures of the sanction generally stipulated by article 64. For indeed,
the fact that this article belongs to the Section on «Termination»

77. In most of the civil law systems «termination» is a type of extinction quite
different from «invalidity». The main difference lies with the fact that termination
(of a contract) presupposes the existence of a valid obligation. What is termina-
ted is the obligation of a party or parties ; while in the case of invalidity, there is
no obligation to be extinguished: in point of fact such obligation never existed.
It is the defective instrument which is extinguished or the defective consent as the
case may be. See Ripert, Traité Elémentaire de Droit Civil HI,
636.
78. UNCLT Official Records, 2nd Session, 22nd Plenary meeting,
79. Cf., e.g., Spain (ibid.) who maintained that the proposed amendment
could harm the notion of jus cogens, since «the act of objecting to a treaty
would entail, first, the objection being made only by the party to whom the right
of objection is available ; secondly, since the right of objection was optional, it could
be waived, that was to say the treaty could be confirmed expressly or tacitly ;
and thirdly, since the option was open to one party only, it could not be exercised
by a third State».
144 The Concept of Jus Gogens

or that its text employs the term «terminates» has no particular si-
gnificance insofar as that term is not used, or may not be used, with
its traditional connotation to be found in internal legal systems.

An examination of the articles of the Convention pertaining to

the implementation of article 64 leads to the conclusion that the san-
ction under that article constitutes a special case of termination in
favour of the law. In other words, it is a ground of termination which,
unlike the rest of the provisions of the Convention on termination,
is not intended to serve the particular interests of the parties to a
treaty, but the interests of the community at large. Its basic charact-
eristics, to be discussed in the following lines, are: (a) the termin-
ation of a treaty falling under article 64 must be established, accord-
ing to any good faith interpretation, through the procedure of article
65; (b) the termination of a treaty falling under article 64 may be
asked, through the machinery of the Convention, only by the parties
to it; (c) in the event of the termination of ana posteriori illegal
treaty a separation of the treaty’s provisions is possible; (d) the
termination of a treaty falling under article 64 is compulsory and
the possibility of a confirmation of its validity is excluded; and, (e)
the termination of a treaty falling under article 64 takes place ex
nunc, in the sense that there is no retroactive extinction.

a. The Establishment of the Termination of an Illegal Treaty.

In line with the concept of prevention of unilateralism embodied

in article 65 of the Convention, the termination of a treaty falling
under article 64 should be consensually established. In other words,
a State wishing to terminate a treaty to which it is a party by rea-
son of its conflict with a }us cogens norm in the circumstances
described by article 64 of the Convention, must follow exactly the same
procedure that applies to the invalidation of a treaty falling under
article 53.8° Article 65, paragraphs 1 and 2 should therefore apply to
the termination of a treaty under article 64, while paragraphs 3 and
4 of the same article as well as article 66 should apply in the event
of a dispute concerning such termination.®!

80. For the procedure of the establishment of the invalidity of a treaty under
article 53, see supra, 109 et seq.
31. Supra, 109 et séq and intra, et seq,
The Sanctioning Power of the Jus Cogens Norms 145

b. The Invocation Ratione Personnae of the Illegal Character

of a Treaty.

As is the case with treaties illegal under article 53, the right of
invocation of the illegality of a treaty which conflicts with a jus
cogens norm emerged after its conclusion with a view to its ter-
mination is granted only to the parties to such treaty under the pro-
visions of the Vienna Consention.®2

c. The Separabilily of Treaty Provisions.

Unlike the case of treaties conflicting witha jus cogens norm

at the time of their conclusion, the provisions of a treaty which vio-
lates a posteriori a jus cogens norm are severable.8? This means
that all provisions which are not tainted with illegality can be seve-
red from the illegal part of the treaty and continue to be valid and
to produce effects which will be absolutely lawful. It goes without
saying that this arrangement, which may be freely decided upon by
the parties, must comply with the terms and conditions of article 44,
paragraph 3 of the Convention.*4
This favourable arrangement was devised by the International
Law Commission —and accepted by the Conference — which consi-
dered that in the circumstances of draft article 61, the rigidity applying
to cases falling under draft article 50 was not appropriate.®

d. The Irreversible Character of the Termination under Article 64.

The ground of termination under article 64 is a ground which is

stipulated in favour of the law and the international community. It

SQ) ol plane 1 Lom eur iS 61g.

83. Supra, 122 et seq.
84. Supra, 122.
85. The relevant extract from the commentary reads:
«(3) Similarly, although the Commission did not think that the principle of se-
parability is appropriate when a treaty is void ab initio under article
50 by reason of an existing rule of jus cogens, it felt that different con-
siderations apply in the case of a treaty which was entirely valid when con-
cluded but is now found with respect to some of its provisions to conflict
with a newly established rule of jus cogens. If these provisions can
properly be regarded as severable from the rest of the treaty, the Commis-
sion thought that the rest of the treaty ought to be regarded as still valid.»
(Commentary, 81).
410
146 The Concept of Jus Cogens.

is a compulsory termination, in the sense that, theoretically at least,

it is not in the free will of the parties to an a posteriori ille-
gal treaty to choose not to terminate their treaty. Since, therefore, the
parties cannot impose their choice vis-a-vis their treaty, they cannot,
a fortiori, validate the character of that treaty; the right of that
validation is exclusively conferred to the international community
which is the beneficiary of compulsory termination under article 64.
Obviously for that reason, article 45 of the Convention does not refer
to article 64 in providing for the conditions of validation of a treaty
through the express or implied consent of the parties to it.%®
There is no need, of course, to stress once again that in the cir-
cumstances of the decentralized international legal system and in view
of the inadequate arrangement of article 65 of the Convention, the
likelihood of a de facto _ validation cannot be excluded.%

e. The Ex Nunc Termination of a Trealy under Article 64.

Regarding the consequences of the termination of a treaty under

article 64, it must be noted that paragraph 2 of article 71 deals ex-
clusively with the details of the termination of such treaty.It reads:

In the case of a treaty which becomes void and terminates un-

der article 64, the termination of the treaty:
(a) releases the parties from any obligation further to perform
the treaty;
(b) does not affect any right, obligation or legal situation of the
parties created through the execution of the treaty prior to its
termination; provided that those rights, obligations or situa-
tions may thereafter be maintained only to the extent that their
maintenance is not in itself in conflict with the new peremptory
norm of general international law.

The above paragraph makes it clear that the termination of a

treaty falling within its scope is an ex nunc extinction. By that
is meant that the treaty is considered by the law as terminated from
the time that it starts to conflict with a new peremptory norm of

86. Supra. 126. The commentary of the ILC expressly excludes the case of
treaties conflicting with a «supervening j us co gens» norm from the application
of the principle incorporated in its draft article 42. Cf. Commentary, 59.
SIP Sau rae do 7a.
The Sanctioning Power of the Jus Cogens Norms 147

general international law. For the time prior to the emergence of that
norm it is considered absolutely legitimate. Hence, all rights, obliga-
tions or legal situations produced before the coming into being of the
Jus c€ogens norm are, in principle, valid.
The distinction between the legitimate and illegitimate operation
of a treaty falling under article 64 (as well as under article 71, pa-
ragraph 2) begins to exist at the very moment of the emergence of
the new jus cogens norm conflicting with its content. In conse-
quence, if notwithstanding its a posteriori illegal character, a
treaty continues to operate for a certain amount of time, its termina-
tion, when it occurs, will have as a result not only to prevent its fu-
ture operation but also to destroy all consequences produced illegitima-
tely between the time that it became terminated by law (article 64)
and the time of its actual termination through the machinery of the
Convention. Hence, the stipulation of paragraph 2 of article 71 should
only apply to the consequences of a treaty produced before it became
illegal; while for the consequences produced after the emergence of a
new jus cogens_ norm the provision of paragraph 1 of article
71 seems to be more appropriate. The term ex nunc termination
has therefore a specific connotation as it is used in the present con-
text: it is based on the premise that the termination of a treaty ta-
kes place upon the emergence of the jus cogens norm with which
its provisions are in conflict.
The above construction seems quite plausible. Moreover, its ac-
ceptance would signify that in both articles of the Convention which
deal with a jus cogens conflict (article 53 and 64) the function
of the jus cogens_ norms is conceived in a uniform way. In o-
ther words, both in the case of article 53 (a treaty conflicting with
a jus cogens_ norm at the time of its conclusion) and in the
case of article 64 (jus cogens emergens), the termi-
nus post quem _ of the sanctioning effects of these articles is
the moment of the conflict between the treaty and the jus co-
gens norm. In both cases, the function of the Jus cogens norms.
is thus perfectly illustrated.
Article 71, paragraph 2, does not leave unaffected all rights, obli-
gations or legal situations created through the execution of the tre-
aty prior to its termination by the law, but only those which do not
objectively conflict with the legal regime created by the new jus
cogens norm. That arrangement is in line with the need for uni-
formity in the legal order which, as has been repeatedly stressed, can-
148 The Concept of Jus Cogens

not afford the simultaneous existence of imperative norms and legal

regimes or situations conflicting with each other. Again this chara-
cteristic of termination under article 71 indicates that the type of ter-
mination of treaties conflicting with a newly emerged jus cogens
norm is exclusively stipulated to serve the concerns of the internatio-
nal community.
It would seem, prima facie, that there is an inconsistency
between the stipulation or article 71, paragraph 2, alinea (b) and that
of article 44, paragraph 3, alineas (a) and (b). Article 71 leaves unaf-
fected all rights and obligations created through the execution of an
a posteriori illegal treaty; it virtually, therefore, leaves unaf-
fected that part of the treaty which does not violate a Jus cogens
norm and upon which these rights and obligations presumably rest.
On the other hand, article 44 makes the possibility of separation of
the provisions of a treaty conditional upon the already known requi-
rements of its paragraph 3, alineas (a) and (b).88 The question which
therefore arises is what would happen in the event that the continuing
validity of rights and obligations created through a terminated treaty
would require the continuance in force of the provisions upon which
they rest, since such continuance would not be possible under ali-
neas (a) and (b) of paragraph 3 of article 44. It appears, however,
that this obstensible inconsistency between article 44 and 71 is not
likely to create any problems. Article 71 isa lex specialis with
regard to article 44. Consequently, should a problem of the kind re-
ferred to in the above lines arise, the parties to a terminated treaty
would most probably apply the provision of article 71 instead of that
of article 44 on that matter.

In concluding the discussion on the termination of treaties under

article 64 of the Vienna Convention, it must be stressed that here,
as in the case of article 53, the sanction provided by the Convention
is a special type of sanction. On the one hand, it bears the basic cha-
racteristic of termination as accepted by domestic legal systems in
the sense that it brings about the extinction of rights and obligations
which were valid until the emergencee of the ground of ter-
mination, namely the emergence of anew jus cogens norm. On
the other hand, the termination under article 64 differs from the ter-
mination of domestic systems in that it is not a legal device purpor-

88. Supra, 122.

The Sanctioning Power of the Jus Cogens Norms 149

ted to protect individual rights and obligations. Its main function,

which gives it precisely its special character, is to protect the inte-
rests of the international community and to preserve the uniformity
of the legal order, a function which is dictated, needless to say, by
the very fact that its provisions are intended to protect and to impose
the unhindered function of the jus cogens in the sphere of in-
ternational law.
 CHAPTER V

THE SETTLEMENT OF DISPUTES

Section 4 of Part V of the Vienna Convention provides the pro-

cedure to be followed with respect to invalidity, termination, with-
drawal from or suspension of the operation of a treaty. Two of the
articles contained in that section deal with the settlement of disputes
arising out of the application and interpretation of the provisions of
the Convention on jus cogens. Article 65, paragraphs 3 and 4,
provides the means for the settlement of a dispute arising out of a
disagreement on the measure proposed under its paragraphs 1 and 2,
while article 66 specifically deals with disputes concerning the appli-
cation or interpretation of the articles of Part V of the Convention.
The adoption of these two provisions was a major success of the
Vienna Conference. This is particularly so, since it is quite conceiva-
ble that most of the time some kind of disagreement may arise and
prevent the invalidation of an illegal treaty from taking place in ac-
cordance with paragraph 2 of article 65. In order, therefore, to se-
cure in all cases the due application of the provision of that paragraph
and, hence, the invalidation of an illegal treaty, a procedure must exist
through which the disagreement may be removed and the way to the
invalidation cleared.
The question of an institutionalized machinery for the settlement
of disputes (and of the establishment of a mechanism implementing the
substantive articles on invalidity) was raised early in the discussions
of the International Law Commission on the first drafts and remained
hence a permanent concern which accompanied all successive draftings
of the articles throughout the various stages which finally led to the
adoption of the Convention.
The inclusion of a procedural machinery in the draft articles on
the law of treaties proved to be one of the major controversial issues
in the drafting history of the Convention. Many members of the Com-
The Settlement of Disputes 151

mission altogether disagreed with the idea of including procedural ar-

ticles with respect to the invalidity, termination or suspension of a
treaty. Furthermore, and here lies the basic controversy, there was
a total lack of consensus, among those of its members who accepted,
in principle, such inclusion, on the delimitation of the procedural ma-
chinery in actual terms. A number of them supported the idea of a
loose machinery; others considered as indispensable a concrete type
of machinery but of a non-compulsory character; finally, there were
those who asked for a compulsory form of establishment of the com-
mands of the substantive provisions of Part V of the then draft ar-
ticles.t
Eventually, the International Law Commission produced a draft
article (62) which provided an arrangement for the implementation
of the substantive provisions on jus cogens based on the com-
mon consent of the parties to a contested treaty. Insofar as the
‘settlement of disputes was concerned, in the event of a failure of the
‘parties to reach an agreement the Commission proposed a resort to
the means indicated in article 33 of the Charter of the United Nations.®
For the Commission, this reference to the traditional means of
‘settlement of disputes was the optimum that the States could
accept and comply with. It «did not find it possible to carry the pro-
cedural provisions beyond this point without becoming involved in
some measure and in one form or another in compulsory solution to
the question at issue between the parties»,* and considered that com-
pulsory means of determination of disputes were unacceptable by the
majority of States at the present stage of development of internatio-
nal law. However,

[e] ven if, for the reasons previously mentioned... the [ILC] felt
obliged not to go beyond Article 33 of the Charter in providing
for procedural checks upon arbitrary action, it considered that
the establishment of the procedural provisions... as an integral
part of the law relating to the invalidity, termination and sus-
pension of the operation of treaties would be a valuable step for-
ward. The express subordination of the substantive rights arising
out of the provisions of the various articles to the procedure pres-

i, (Chie Wanuieey, aly

2. Cf. Commentary, 81f.-
By IPley Ola, te
152 The Concept of Jus Cogens

cribed in the present article and the checks on unilateral action

which the procedure contains would... give a substantial measure
of protection against purely arbitrary assertions of the nullity,
termination or suspension of the operation of a treaty.*

The above position of the Commission, namely that a codifica-

tion of rules of law may be more successful if it provides, apart from
substantive rules, procedural safeguards, was not shared by all the
States participating in the Vienna Conference.® The procedure of com-
pulsory settlement of disputes proposed by a number of States was
criticized by some others as introducing a novel element traditionally
not acceptable in international law. That law, claimed the latter Sta-
tes, was a legal system working, by and large, effectively with a mi-
nimum_ of, or without any, procedural safeguards accompanying
the existing substantive rules. For that reason, these States asked for
the complete deletion of the proposed article on the procedure as re-
dundant and not representative of the realities of the international
system.®
The States which accepted the need of procedural safeguards, on
the other hand, had their own unresolved problems. As had been the
case with the discussions among the members of the Commission, a
great variety of opinions was observed here, too, in connexion with the
form that the procedural article(s) should ultimately take. A number
of States were satisfied with the procedural safeguards offered by draft
article 62. They thought that under the present circumstances, a re-
ference to the means of settlement provided by the Charter was the
best course to be followed for the settlement of a dispute over inva-
lidity, termination or suspension of a treaty.

4. Tbid.
5. Two blocs of States were created in Vienna with respect to the question of
procedural provisions. The first bloc consisted by and large of the States of the We-
stern World and asked for strong procedural safeguards. The second bloc consisted
mainly of states of the Eastern World and the Third World and it was either against
any form of procedure or against a compulsory procedure for the settlement of
disputes.
6. See the characteristic positions of some States representing the two camps
inUNCLT Official Records, Irst Session, meetings of the Committee
of the Whole. More particularly : 52nd meeting (Iraq, Kenya, Lebanon) ; 53nd
meeting (Sierra Leone, Austria, the United Kingdom, Cyprus); 54th meeting (Fran-
ce, Ethiopia, Israel).
The Settlement of Disputes i

Other States, however, did not think that a simple reference to

the means of the Charter would be sufficient since it would not se-
cure the compulsory determination and settlement of disputes by impar-
tial agents. The insecurity of such an arrangement, according to these
States, would be harmful to the curtailment of unilateralism that the
International Law Commission claimed to have achieved, and in some
cases, such as the jus cogens, might threaten the proper fun-
ctioning of the grounds of invalidity.
The divergence in the opinions of States with respect to the pro-
cedural provisions threatened the very adoption of the Convention
as a whole. Both camps insisted on their own positions while attem-
pting to proselytize other States to their cause. Meanwhile, in an ef-
fort to avoid the impending stalemate, several States proposed a num-
ber of amendments in which both extreme and conciliatory positions
were represented.”
Among the various amendments proposed with a view to chan-
ging the formula of the International Law Commission, one by Japan
provided for a solution which might be considered as the turning point
which eventually led to the present arrangement. That proposal asked
for the substitution to paragraph 3 of draft article 62 of a new scheme
having as follows:

If objection has been raised by any other party, the parties con-
cerned shall seek the settlement of the dispute out of the claim
in the following manner:
(a) In a case where the dispute relates to a claim under article
50 or article 61, the dispute shall be referred to the Internatio-
nal Court of Justice for decision at the request of either of the
parties to the dispute;
(b) In all other cases, the parties to the dispute shall first of all
seek a solution of the dispute through the means indicated in ar-
ticle 33 of the Charter of the United Nations. If no solution has
been reached within twelve months, the dispute shall be referred
to arbitration by a tribunal provided for in the Annex to the pre-
sent Convention, unless the parties to the dispute agree to refer
the dispute to the International Court of Justice.®

TaN ele Droncnitnne mites yal O7 091,

8, A/CONF. 39/C. 41/L. 339.
154 The Concept of Jus Cogens

The Japanese amendment made a clear distinction between dis-

putes relating to draft articles 50 and 61 (the substantive provisions
on jus cogens) and all other disputes relating to the rest of
the grounds of invalidity, termination or.suspension. In the first case
it referred to a compulsory adjudication while in the second case it
referred to the means of article 33 of the Charter and, as a last re-
sort, to arbitration. This proposal satisfied those States which favou-
red a compulsory settlement at least for the disputes regarding the
provisions on jus Cogens as well as the States which desired the
imposition of stricter means in general with a view to excluding uni-
lateral assertions regarding the provisions of the Vienna Convention.®
Despite, however, the fervent support of many States, the Japa-
nese amendment suffered the same fate as all the other amendments
proposed for the improvement of draft article 62. The insistence of
the opposition blocked any definite solution and, as a result, when
the first session of the Conference ended, the problem of procedure
under Part V of the draft articles was still in suspense.
In the second session of the Conference, the problem of procedure
was re-discussed but the positions of States had not substantially chan-
ged. Only when the deliberations reached a complete deadlock and
the work of the Conference seemed seriously at stake, did the States
become more accomodating and eager to save the efforts of almost
two decades of preparation and drafting.
A compromise was finally reached on the basis of what was cal-
led the «all-States» formula. The Western countries, traditionally a-
gainst the open character of multilateral treaties to which they were
parties, accepted the adoption of a declaration requesting the United
Nations General Assembly to consider inviting all States to participate
in the Vienna Conference on the Law of Treaties. In return for this

9. In introducing its amendment, Japan made, among others, the following

comments : «The Japanese amendment was designed to provide a sure guarantee
for the settlement of any dispute that might arise under Part V... Questions of
jus cogens involved the interest of the entire community of nations and the
question whether a provision of a treaty was in conflict with a rule of general inter-
national law and whether that rule was to be regarded as peremptory norm, could
be settled authotitatively only by the International Court of Justice: his delega-
tion could not argue that a dispute of that kind should be left to private settlement
between the parties through ad hoc procedure». (A/CONF. 39/C. 1/SR. 68, 3).
10. Western countries were, and still are, against the participation in the con-
ventions of a multilateral character, of entities of ambiguous (for them) international
The Settlement of Disputes 155

concession, the States of the Eastern bloc accepted the general arran-
gement of draft article 62 and a compulsory settlement of disputes
over the substantive provisions on jus Cogens as well as an ar-
rangement of conciliation for all disputes arising over the remainder
of the provisions of Part V. The Conference thus avoided the impasse
only at the very last moment. A new article was added (article 66)
to the draft articles together with an annex to it referring to the terms
of constitution of the Conciliation Commission in conformity with the
provision of alinea (b) of the article.t

1. The Provision on the Settlement of Disputes under Article 65.

Paragraphs 3 and 4 of article 65 deal exclusively with the set-

tlement of disputes resulting from the application of paragraphs 1 and
2 of the same article. They read:

3. If, however, objection has been raised by any other party,

the parties shall seek a solution through the means indicated
in Article 33 of the Charter of the United Nations. :
4. Nothing in the foregoing paragraphs shall affect the rights
or obligations of the parties under any provisions in force
binding the parties with regard to the settlement of disputes.

A. The’'General Rule

Paragraph 3 applies in the event that consensual invalidation un-

der paragraphs 1 and 2 of articles 65 is not reached. An objection rai-
sed by one party (or a number of parties) to the measure proposed
by another party does not, however, automatically create the mate-

status such as, for instance, North Korea and North Vietnam. On the other hand,
Eastern countries have always insisted, usually without success, on the possibility
of accession to such conventions of all international entities without specific qual-
ifications (such as «members of the United Nations», etc.). In other words, they
have sought the opening of the law-making treaties to all States regardless of
recognition, participation in international organizations or any controversy over
their political status under international law. The compromise reached on the basis
of the all Stateformula, in Vienna, was formulated by a coalition of African
and Asian States and was accepted by the Conference through a vote of 61 States
in favour, 20 States against and 26 abstentions. (A/CONF. 39/SR. 34-May 21,
4969 ; also A/CONF. 39/L. 47/Rev. 1).
Vil, UA PA), AI CE ee
156 The Concept of Jus CGogens

rial circumstances required for the application of paragraph 3 because

at the time that the objection is raised no actual difference exists.
Although in using the word «objection» the drafters obviously tried to
dissociate the application of paragraph 3 from the technicalities of a
search as to whether a dispute has emerged, the fact remains that
some kind of real difference should exist between the party objecting
the measure and the party proposing the measure to justify applica-
tion of the peaceful means of settlement.1? Only when the party con-
testing the validity of the treaty does not accept the terms of the
other party’s objection (expressly or by its conduct) does the original
divergence between them definitely mature into an outstanding dii-
ference calling for a peaceful settlement. It is at that stage, therefore,
that one of the parties to the dispute may ask for the application of
paragraph 3 of article 65.3
Insofar as the nature of a dispute falling under the provision of
paragraph 3 is concerned, it should be noted that the content of no-
tification (article 65, paragraph 1) and all possible following exchanges
between the interested parties will presumably determine the content
of the objection since the latter should refer, according to the spirit
of article 65, to the contentions of the contesting party, that is to
say, to the proposed measure of invalidation (or termination), and
declare that such measure is not applicable in the particular circum-
stances of the contested treaty. In other words, the objecting party
will contest either the existence of a valid ground of invalidity, or
the appropriateness of the type of the proposed invalidity. Moreover,
it appears that.in so doing, the party may refer to the asserted rea-
sons of invalidation and make an effort to prove that they are not
valid or pertinent.'* Finally, the objection may refer to the details

12. For the technical meaning of the term «dispute» as developed by the
International Court of Justice, see Rosenne, The Law and Practice of
thes ln term a toma Co ulrat 292-296)
13. That means that a dispute, as conceived by the international jurispruden-
ce, should actually exist for paragraph 3 to apply. Cf. the Mavrommatis
Palestine Concessions case, where the Court enunciated that «a dispu-
te is a disagreement on a point of law or fact, a conflict of legal views or of interests
between two persons». (ibid., 292).
14. Contra Rosenne, «The Settlement of Treaty Disputes under the Vienna
Convention», 38. At this point of the discussion it would be advisable to cite the
text of paragraph 5 of article 65 which being self-explanatory does not seem to
require any specific comment. It reeds : «Without prejudice to article 45, the fact
The Settlement of Disputes 157

of the re-establishment of the status quo ante in accordance

with article 71 of the Convention. This particularly applies in the ca-
ses falling under article 53; it may also apply, however, in cases fal-
ling under article 64, if the treaty does not terminate at the time of
the emergence of a new peremptory norm but continues instead to
operate in the international system for some time.!®
The means provided by paragraph 3 for the settlement of disputes
are those indicated in article 33 of the United Nations Charter. It must
be noted that paragraph 3 refers to the «means indicated» and not
to article 33 as such. The intention of that wording apparently was
to avoid any implication that the conditions of application of article
33 (the existence of a dispute «the continuance of which is likely to
endanger the maintenance of international peace and security») apply
in the case of paragraph 3.16 The reference in paragraph 3 to arti-
cle 33 is limited to the means of peaceful settlement contained the-
rein, namely to «negotiation, enquiry, mediation, arbitration, juri-
cial settlement, resort to regional agencies or arrangements, or other
peaceful means of their [the parties to the dispute] choice». While
these means — which are indicatively enumerated in article 33% —
are also currently accepted in the sphere of international customary
law, the drafters of the Convention preferred a reference to the Char-
ter’s article, instead of a direct reference to the peaceful means as cu-
stomarily developed, probably because article 33 represents the ori-
ginal source of law in this respect, and, moreover, is a written text
offering clarity of provision.

In order to better understand the overall function of the jus

cogens concept under the Vienna Convention, a few clarifications
must be made concerning a number of questions arising with respect
to the application of paragraph 3 of article 65. A first such question
would be whether the third party (mediator, arbitrator, judge) which

that a State has not previousmade ly the notification prescribed in paragraph 1 shall
not prevent it from making such notification in answer to another party claiming
performance of the treaty or alleging its violation.»
155 Supa, lade
16. As well as to avoid any such implication with respect to the provisions of
its paragraph 2 which stipulates that «[tJhe Security Council shall, when it deems
necessary, call upon its parties to settle their dispute by such means».
17. Goodrich, Hambro, Simons, Charter of the Usenet eid Nea tao mrss,
263.
 158 The Concept of Jus Cogens

may possibly interfere according to the above paragraph, can act, un-
der certain circumstances, as the agent of the international commu-
nity and seek the extinction of the*invalid treaty, thus changing the
pattern of «consensual invalidation» provided by paragraphs 1 and 2
of the same article.
Another question which arises with respect, this time, to the fate
of an illegal treaty during the procedure for the settlement of a dis-
pute over its validity is whether such treaty is to operate regularly
during the time required for the completion of that procedure. Fi-
nally, a third question would be whether an illegal treaty shall con-
tinue to operate in the international system in the event that the
parties to it fail to reach a settlement of a dispute over its validity,
or to comply with a proposed settlement.

Regarding the first question, it should be stressed that the means

indicated in article 33 of the Charter may be classified into two ca-
tegories: the first one comprises the diplomatic means of settlement,
namely negotiations, enquiry, good offices, conciliation and, most
usually, the means provided by regional agencies or arrangements. The
second category comprises the compulsory means of settlement, in
other words arbitration and judicial settlement.
Under ordinary circumstances, the parties to a dispute of the kind
referred to in paragraph 3 of article 65, will first try to settle their
differences through negotiations. If the dispute is settled in this way,
the invalidation of the treaty may subsequently be reached through
the common consensus of the parties to it. If, however, negotiations
fail to settle the dispute, the parties to the latter may decide to re-
_—_—_
=
sort to other methods chosen from the above mentioned category of
«diplomatic» means.
It is a quite known fact, however, that none of the means of
settlement belonging to this category provides for a compulsory pro-
cedure (in the absence of an agreement to the contrary) and that
the decision reached through them is not binding upon the parties
to the dispute. In consequence, even if the point at issue is the va-
lid or invalid character of a disputed treaty, a third party (mediator,
conciliator, etc.) is in principle unable to invalidate that treaty. It
would appear, therefore, that the diplomatic means of settlement do
not have the power to invalidate ipso facto an illegal treaty
and thereby play a social role in the international system.
Te Settlement of Disputes 159

It is nevertheless conceivable that the parties may decide to con-

sider as compulsory a decision of a third party regarding a dispute
over the validity or invalidity of their treaty. In such case, the de-
cision would of course be binding but this fact would obviously not
change the character of the invalidation from consensual to compul-
sory and automatic since the extraordinary power to assume a role
originally preserved for the parties would be conferred to the third
party by the will of the parties themselves.
With regard to the compulsory means of settlement, things do
not appear to differ substantially. Assuming that the reluctance of
the parties to refer their dispute to an objective, compulsory deter-.
mination is overcome, 8 the next problem will be to obtain the consen-
sus of all the parties to refer the problem of whether the tre-
aty is valid or invalid. to arbitration or to a court. For
if they refer to the compulsory means a dispute which is only peri-
pheral to the issue of invalidity as such, it will be rather difficult to
argue that the tribunal or court will (or must) incidentally in-
validate that treaty.
With respect to an arbitral tribunal, its award must settle only
the questions submitted by the parties to the dispute in their com -
promis. In commenting on that limitation of the arbitral tribunals,
Oppenheim cites a number of cases where awards were not recogni-
zed by the disputing parties because of actual or alleged excess of
jurisdiction and concludes:

In this matter [the non-recognition of the binding character of

an award by reason of excess of jurisdiction] arbitral tribunals have
been exposed to the possible conflict of two fundamental princi-
ples governing their activity. The first is that their jurisdiction
is essentially grounded in the will of the parties as expressed in
the compromis_ or ir the general arbitration treaty, and
that an award rendered in excess of the power conferred upon

18. As all other means of settlement, arbitration cr judicial settlement is also

based on the consent of the parties to a dispute. In the Eastern Care lia ca-
in in-
se (Advisory Opinion) the PCIJ said on that matter : «It is well established
its consent, be compelled to submit its
ternational law that no State can, without
other kind
disputes with other States either to mediation or arbitration, or to any
settlement. Such consent can be given once and for all in the form of an
of pacific
also be given in a special
obligation freely undertaken, but it can, on the contary,
case apart from any existing obligation». (P CT J Series B. No 5, 27).
160 The Concept of Jus CGogens

them is null and void as having no legal basis whatsoever. The

other principle is that in case of doubt the arbitrator is entitled
to interpret the compromis or the treaty and thus to de-
termine the scope of its jurisdiction.’®

If, therefore, the parties to a dispute carefully circumscribe in

the text of their compromis_ the limits of jurisdiction of the
arbitral tribunal, the latter is apparently unable to widen the range
of its award so as to cover issues not raised by the disputing parties.
As a consequence, the arbitral tribunal cannot decide on the actual
invalidation of an illegal treaty unless asked directly by the parties:
if the issues involved in the dispute do not refer to the question of
validity but merely to peripheral problems whose solution would as-
sist the eventual invalidation of the treaty by the parties, the tribu-
nal can only settle these problems and leave it to the parties to pro-
ceed to the invalidation on the basis of its pronouncements over the
peripheral questions.
Let us assume now that a number of parties to an illegal treaty
submit a dispute, which touches only peripherally on the question of
the validity of their treaty, to judicial determination and, more spe-
cifically, to the jurisdiction of the International Court of Justice.?°
It may come to the knowledge of the Court that the treaty, which
entered into the proceedings incidentally, is illegal and threatening
by its operation the international community. The question is whe-
ther the Court, as a court of law and as an international organ, may
proceed to the invalidation of that treaty proprio motu, bey-
ond the terms of reference of the parties and the jurisdiction confer-
red to it by the latter.
It seems that the answer to the above question must be in the
negative. The Court cannot proceed to such a bold expansion of the
subject-matter of the dispute by pronouncing, presumably through
a separate decision, on an issue which was not raised at all by the
parties. At some instances, it is true, the jurisdiction of the Court
may exceed the power conferred by the terms of reference as for exam-
ple in the case where the Court indicates interim measures of prote-

19. Lautarpacht/Oppenheim, International Law MII, 28.

20. The ICJ is chosen here as a model Court of the international system; and,
moreover, because it will probably be the forum most likely to receive in the future
most of the disputes of such nature (over the concept of jus cogens).
The Settlement of Disputes 161

ction proprio motu.” It is also true that the Court enjoys a

juridical independence which allows it to manipulate a dispute as it
deems it desirable in order for the judges to easily reach a decision
complying with the principles of justice and based upon the rules of
international law. Nevertheless, it should not be forgotten that the
Court functions on a consensual basis which regulates its movements
in two ways: in the first place, it may not go beyond the confines of
the Statute and the Rules of Procedure which represent the extent
of the consent of the States insofar as its jurisdictional capacity is
concerned. Furthermore, the determination of its decision must com-
ply, inter alia, with the conditions of the litigating parties as
to what is to be covered by that decision.2? The Court should in all
cases decide on the basis of these considerations. Its jurisdictional ca-
pacity is governed by the principle of non ultra petita. As
Rosenne has put it:
[I]n priaciple it is the duty of the Court, in deciding on the ba-
sis of international law questions submitted to it, to limit itself
to the terms of the reference to it—the special agreement, the
submissions, or the question put for an advisory opinion, as the
case may be. This—the non ultra petita rule— gives
the parties the last word in the efficacy of the Court to settle
their dispute.??

There may be some authorities, however, who will not accept that
this inherent limitation of the jurisdiction of the Court can act as a
deterrent to the invalidation of an illegal treaty by an ex officio
pronouncement. The Court has followed a practice of discretionary
exercise of its legal authority which might be interpreted by certain

21. Cf. IGJ Rules of Procedure, article 61, par. 6. Also see Christodoulidis,
[«The Jurisdiction of the International Court to Take Interim Measures»], 112 f.
Rosenne, The Law and Practice of the International Court,
426 f.
22. While Lauterpacht (The Development of International
Law, 205) declares that «[t]here are other ways in which the Court has occasio-
nally shown a disposition to act upon the maxim boni judicis est amp li-
are jurisdictione m he hastens tc concede that this may happen «so long
as that maxim does not conflict with the principle that its juridiction is ultimately
grounded in the will of the parties».
23. The Law and Practice of the International Court,
“Wis
44
162 \ The Concept of Jus Cogens

publicists as a tendency to serve more the purposes of the law than

the strict interests of the parties. Yet it should be admitted that whe-
never the Court proceeded to a discretionary use of its power, this
was always expressly or impliedly dictated by its Statute or Rules of
Procedure.24 It appears, at least for the present, that while the In-
ternational Court of Justice is a court of law, in the sense that it de-
cides on the basis of existing law, it is not competent to impose this
law whenever it deems it desirable and just unless specifically empo-
wered to that effect.
Apart from the legal there is also a political argumentation on
the limits of the jurisdiction of the Court, which restricts the latter’s
ex officio action. Under the present scheme of international re-
lations, an expansion of the Court’s jurisdiction beyond what is re-
quested by the parties to a dispute may provoke the reluctance of
the States of the international Community to resort to compulsory set-
tlement. States would indeed hesitate to refer their disputes to a fo-
rum which would be likely to scrutinize other aspects of their relations
as well, and come up with decisions which would exceed their requests.
In an era when the Court traverses a crisis of confidence with respect
to some of the members of the international community, any attempt
to change the whole pattern of its past attitude might be the final
stroke to its autority.*

In concluding, it seems that although it should be in the compe-

tence of the Court, as an international body, to authoritatively con-
trol the compatibility of international agreements with international
law, even in the absence of a request by the parties to a dispute to

24. The most usual exercise of a discretionary power by the Court is its right
to refuse the examination of cases submitted to it under its advisory jurisdiction.
(Cf. Cheng, «The Scope and Limits of the Advisory Jurisdiction of the Interna-
tional Court of Justice», 188). Another expression of the Court’s discretionary
power is the determination of its own jurisdiction in all cases, the so-called da
compétence de la compétence». (Cf. Fitzmaurice, «The Law and Procedure of
the International Court of Justice, 1951-4», 26-29).
25. A sharp decline in the prestige of the World Court has been noticed after
its pronouncement on the 1966 South West Africa case (second phase) which
has been heavily criticized particularly among African States and newly independ-
ent ones. Eastern countries have also shown disfavour to judicial settlements of
disputes. Cf. Gross, «The International Court of Justice: Consideration of Requi-
rements for Enhancing its Role in the International Legal Order» ; same, «Rey-
iew of the Role of the International Court cf Justice».
The Settlement of Disputes 163

that effect, its presently accepted role is not so ample as to actually

permit the assumption of such an initiative. It is rather for the pu-
rely political organs of the United Nations to take measures banning
illegalities coming from the violations of a fundamental jus co-
gens norm. The International Court of Justice has apparently un-
dertaken a particular role in the «maintenance of international peace
and security» and, more specifically, that of the settlement of dispu-
tes as they are submitted to it. It certainly enjoys a judicial propriety
and independence in its search for a settlement but only to the ex-
tent that this may help toward a better administration of justice with
respect to the submitted difference.
In consequence, the answer to the question as to whether the Court
may pronounce proprio motu the invalidity of a treaty which
has incidentally entered into the proceedings of an outstanding dispute
should be in the negative. Only the consent of the parties to that
effect may give the Court the necessary jurisdiction to pronounce on
the matter. Hence, even under the circumstances of a dispute referred
to a compulsory settlement, the ultimate decision on the invalidation
of an illegal treaty les in the will of the parties to the latter.”

26. It should be noted at this point that adjudication of a dispute involving

the concept of jus cogens by the Court opens the door to a right of interven-
tion pendente liti of third States which are not parties to the dispute. Arti-
cle 62 of the Statute provides : «1. Should a State consider that it has an interest
of a legal nature which may be affected by the decision in the case,itmay submit
a request to the Court to be permitted to intervene. 2. It shall be for the Court to
decide upon this request». Further, article 63 of the Statute reads : «1. Whenever
the construction of a convention to which States other than those concerned in the
case are parties is in question the Registrar shall notify all such States forthwith.
2. Every State so notified has the right to intervene in the proceedings; but if it
uses this right, the construction given by the judgment will be equally binding upon
it». -The two articles in principle allow members of the international community
of
to intervene and protect their interests which might be harmed by a decision
arising under the circumstances of
the Court. Presumably in the case of a dispute
article 65 of the Convention the parties to the Statute of the ICJ which may use the-
tre-
se two articles may be quite numerous: first, there may be parties to the illegal
dispute; secondly, there may
aty which are not parties to the specific outstanding
be third parties — which are neiher parties to the illegal treaty nor to the Vienna
illega] tre-
Convention — whose interests may be affected by the execution of the
be parties to the Vienna Conven-
aty iavolved in the dispute ; thirdl;, there may
and interested in the construction of the provisions of
tion willing to participate
Convention. These States may intervene, by invoking article 62 or 63,
the Vienna
does not mean that
in order to preserve their rights or interests. However, this
164 The Concept of Jus Cogens

Regarding now the second question arising from the application

of paragraph 3 of article 65 of the Convention with respect to the
fate of an illegal treaty during the procedure for the settlement of
a dispute of the kind referred to in that paragraph, it must be no-
ted that this problem was discussed early in the first session of the
Vienna Conference when an effort was made to clarify the exact sta-
tus of a treaty during the procedure for its invalidation. The text of
draft article 62 remaining silent on that matter, a number of States
proposed some amendments which would make it clear that an impea-
ched treaty would remain in force throughout the procedure for its
invalidation. A Swiss amendment proposed to that effect read as fol-
lows:

Throughout the duration of the dispute, in the absence of an

agreement to the contrary between the parties or of provisional
measures ordered by the Court of jurisdiction, the treaty shall
remain in operation between the parties to the dispute.?’

Two other amendments were proposed on that matter, one by

the United States and another by Japan, both in support of the con-
tinuance of the operation of the treaty during the procedure for its
invalidation.2*> However, all proposed amendments were eventually
withdrawn by their sponsors, and the States did not finally take an

they may,-by their intervention, divert the focal point of the outstanding dispute
to some other matters of their own concern, such as invalidation of the illegal tre-
aty by the Court as a means of protecting these rights or interests. Their interven-
tion must keep in line with the subject matter of the dispute and the jurisdictional
basis of the adjudication of the case.
275 A/ GONE §39/C. 1/1347.
28. Paragraph 4 of the amendment proposed by the United States clearly
indicated that the treaty continued to be in force during the time that a settlement
is reached. It read: «[W]hen an objection has been raised, the party claiming the
invalidity of a treaty or alleging a ground for termination, suspension or withdra-
wal from a treaty may not carry out the measure pr. posed in its notification until
the matter is resolved unless : (a) the parties agree that such measure may be ta-
ken ; or, (b) any international tribunal to which the parties have submitted the
dispute or, if they have not submitted the dispute to such a tribunal, the GCommi-
sion on Treaty Disputes established in the annex of the present Convention, shall
have issued an order lying down provisional measures to be taken to preserve the
respective rights of either party». (A/CONF. 39/C. 1/L. 355). From -the
wording of that paragraph one can safely assume that the treaty would remain in
operation throughout the procedure for settlement, unless the conditions of alinea
The Settlement of Disputes 165

express position on the matter. Therefore, it would appear that the

text of article 65, paragraph 3, remains the sole criterion for resol-
ving this question.
Actually, the final text of article 65 does not appear to leave any
doubt that a treaty whose validity is contested under its provisions
remains in force as long as the procedure for the settlement of a dis-
pute takes place in accordance with paragraph 3. The very legal na-
ture of that article is such as to exclude any alien interference with
the operation of a treaty, as long as the aggregate of the parties to
the latter do not agree to that effect. Any other interpretation of the
article would involve the possibility of unilateralism which, as already
mentioned, was precisely the element that the States in the Conference
tried to avoid above all.
Certainly, the parties to a contested treaty may commonly agree
to suspend its operation while the procedure of its invalidation takes
its course so that no further damage may occur by the continuance
of its operation.?® The parties can also let this matter be arranged by
a decision of an impartial agent to which a dispute over the treaty
has been referred. Interim measures of protection in the form of sus-
pension of the operation of the treaty may also be asked in the event
that the parties have referred their dispute to arbitration or judicial
settlement. This can be done either by the compromis (or by
all the parties) in the case that the dispute has been relegated to ar-
bitration;*®° or by any party to the treaty in the case ofjudicial set-
tlement.?! The interim measures of protection may also be proposed

(a) or (b) could apply. The amendment submitted by Japan (A/CONF. 39/C.
1/L. 339) expressly provided in its paragraph 3 bis that «[p] ending the settle-
ment of the dispute in accordance with paragraph 3, the treaty shall continue in
force, provided that the performance may be suspended : (i) by agreement of the
parties or (ii) by a decision of the body to which the dispute has been referred in
accordance with paragraph 3.».
2°, Suspension of the operation of a treaty may take place in accordance with
article 57 of the Convention. It reads : «The operation of a treaty in regard to all
the parties or to a particular party may be suspended : (a) in conformity with the
provisions of the treaty ; or (b) at any time by consent of all the parties after
consultation with the other contracting States».
30. Cf. Cheng, General Principles of Law, 267-274.
31. The taking of interim measures of protection by the ICJ is governed by
article 41 of its Statute.
166 The Concéptof Jus Cogens

proprio motu by the Court in the form, again, of suspension

of the operation of the contested treaty.”
Finally, the third question arising out of the application of ar-
ticle 65, paragraph 3, relating to the fate of a treaty in the event of
a failure in the settlement of a dispute in accordance with the for-
mula of that article, should be answered in the light of the conclusions
drawn from the examination of the second question. As has been seen,
a treaty whose validity has been impeached under the procedure of
article 65 remains in operation until the moment of its actual invali-
dation. If, therefore, the procedure for its invalidation reachesa dea-
dlock either because (a) a settlement of a dispute is not reached or
(b) the settlement reached does not contribute to eliminate the disa-
greement of the parties to the contested treaty, the latter will remain
in operation probably ad infinitum.
The only case where a deadlock can be safely prevented is if a
dispute over an illegal treaty is submitted to an arbitral tribunal
through a compromis conferring to the tribunal the competence
to judge on its validity; or when the International Court of Justice
assumes the settlement of a dispute over the validity of a treaty and
acquires thus jurisdiction to invalidate it accordingly. In all other cases
of settlement whether by diplomatic or compulsory means (if, that
is, in the latter case the question of validity is not directly at issue),
there is always a possibility of a deadlock and the attendant likeli-
hood of the continuance of the operation of the impeached treaty.

32. According to article 41 of the ICJ Statute interim measures of protection

may be taken to preserve the «respective rights of the parties». The concern, there-
fore, of the Court in taking these measures proprio motu is exclusively over
the interest of the parties and not over those of the international community. As
Rosenne (The Law and Practice of the International Court,
426) puts it, «{rjatione materiae interim measures may only be indicated
to ‘preserve the respective rights of either party’. This means to preserve
the respective rights pending the decision-of the Court, the Court being concerned
to preserve by such measures the rights which may be subsequently adjudged».
33. At his stage it must simply be noted that the application of article 66 of
the Convention, when possible, does not as such achieve the invalidation of a con-
tested treaty, unless the parties to the dispute submitted to the means cf settle-
ment of that article agree to that effect. In principle the marchinery of article 66
assists the parties to reach a settlement of their dispute and, therefore, opens the
door to an eventual, consensual, invalidation. Unfortunately, article 66 applies
only to specific cases (not to all possible disputes over a jus cogens norm and
an illegal treaty) and, hence, the possibility of a deadlock remains for all cases not
falling under that article [and more particularly under its alinea (a)].
The Settlement of Disputes 167

B. The Provision of Paragraph 4

Paragraph 4 of article 65 complements paragraph 3 of the same

article by making it residual in character. It reads:

Nothing in the foregoing paragraphs shall affect the rights or

obligations of the parties under any provisions in force binding
the parties with regard to the settlement of disputes.

The meaning of this paragraph obviously is that if a treaty bet-

ween parties to the Vienna Convention provides its own means of set-
tlement of disputes arising out of the application or interpretation of
that treaty (or, possibly, out of the relations of the parties outside
the treaty), the provision of article 65, paragraph 3, may be super-
seded by the relevant provisions of that treaty, depending upon the
will of the parties or the obligations of the latter as embodied in some
specific clause of their instrument.
In reality, however, paragraph 4 does not change the situation
much since such individual provisions would in actual terms designate
one or more means of settlement from the rich gamut indicated in
article 33 of the Charter —just as paragraph 3 suggests. Indeed, the
only difference which might exist between the application of an in-
dividual clause on settlement and that of paragraph 3, is that the
former would most probably designate a specific means to the exclu-
sion, probably, of all others. Arbitration or judicial settlement, for
instance, might be altogether excluded, thus making compulsory legal
settlement impossible. But such settlement is by no means secured by
the application of paragraph 3 of article 65 either. In effect, the set-
tlement of a dispute can either profit or be harmed by the application
of an individual clause on settlement depending upon whether such
clause provides for a solid arrangement or not without excluding at
least, in the latter case, the alternatives provided by paragraph 3.
The meaning of paragraph 4 is not completely free from interpre-
tative difficulties. A problem seems to arise with regard to the exact
meaning of the phrase «foregoing paragraphs» in its text. The fact
the
that the word «paragraphs» is in a plural form could imply that
s
rule of paragraph 4 applies equally to all the foregoing paragraph
that pa-
of article 65. This might allow the far-reaching construction
the settlemen t of disputes and
ragraphs 1 and 2 (a) deal as well with
of paragraph 4, have
(b) as a result of their falling within the scope
kind would
also a residual character. Clearly, a construction of this
168 The Concept of Jus Cogens

make it possible for the whole matter of invalidation to be settled

through individual clauses of treaties in a manner different from that
provided by these paragraphs; needless to say, such a likelihood would
defeat the efforts of the States to prevent unilateral disengagements
and arbitrary allegations of invalidity. Indeed, such an interpreta-
tion could be extremely hazardous to the spirit of non-unilateralism
presumably reigning in article 65 and to the development of a system
of law on invalidity as set forth by the letter of article 42.
However, the above interpretation could not, with any degree
of good faith, be seriously sustained. Obviously enough, paragraphs
1 and 2 of article 65 do not refer to the settlement of disputes at all.
They embody a solid procedure of invalidation to be followed in the
absence of a dispute. In other words, while all three pa-
ragraphs of article 65 together constitute the procedure for invalida-
tion, paragraphs 1 and 2 apply when no dispute arises, while para-
graph 3 applies when a dispute does arise. It seems that the reference
of paragraph 4 to the «foregoing paragraphs» was simply intended to
cover the mention of the word «objection» which introduces an ele-
ment of dispute in the text of paragraph 3, and was not by any means
intended to change the legal character of paragraphs 1 and 2 of article
65 as a compulsory procedure.
It is obvious that, as a whole, the procedure of settlement of dis-
putes provided by article 65 is not impeccable. Its general reference
to the pacific settlement of disputes does not promote the efforts made
by the drafters to avoid, as far as possible, unilateral assertions of
invalidity. In effect, unilateralism remains the ultimum refu-
gium of even good faith States: if they become frustrated by un-
successful attempts to settle through the non-compulsory, consensual
means of article 65 an outstanding dispute which blocks the invali-
dation of an illegal treaty to which they are parties, they may resort
to unilateral «withdrawal» from that treaty. Such an eventuality may
prove not to be a rare phenomenon in the relations to be governed
by the law of the Convention. It goes without saying that the ina-
dequacy of the law provided by article 65 is particularly serious in
the circumstances of the jus cogens_ norms.

2. The Compulsory Means of Settlement of Disputes under Article 66.

The Vienna Convention provides for a compulsory settlement,

as a last instance, for only one category of disputes arising over a jus
The Settlement of Disputes 169

cogens norm and an illegal treaty; while compulsory reference to

a non-compulsory means, again as a last instance, is provided for ano-
ther category of the same nature. Article 66 containing the provisions
on these two categories of disputes and their means of settlement re-
ads:

Procedure for Judicial Settlement, Arbitration

an dOo med leatron:

If, under paragraph 3 of article 65, no solution has been reached

within a period of 12 months following the date on which the ob-
jection was raised, the following procedures shall be followed:
(a) any one of the parties to a dispute concerning the applica-
tion or the interpretation of article 53 or 64 may, by a written
application, submit it to the International Court of Justice for
a decision unless the parties by common consent agree to submit
the dispute to arbitration;
(b) any one of the parties to a dispute concerning the applica-
tion or the interpretation of any of the other articles in Part Vv
of the present Convention may set in motion the procedure spe-
cified in the Annex to the Convention by submitting a request
to that effect to the Secretary-General of the United Nations.

Of all the possible categories of disputes which may arise as a

result of a contest of validity in accordance with article 65 (such as
disputes over facts or law concerning assessment of situations, the ap-
plication or interpretation of the clauses of the contested treaty, the
application or interpretation of the rules of customary law of treaties
or of the Vienna Convention), article 66 applies exclusively to dispu-
tes over the application or interpretation of the provisions of Part V
of the Convention. More specifically, this article distinguishes two ca-
tegories of disputes for which separate means of settlement are pro-
vided for. Alinea (a) deals with disputes arising solely from the ap-
plication or interpretation of the substantive jus cogens pro-
53 and 64), and provides for the
visions of the Convention (article
a decision of the In-
compulsory settlement of such disputes through
ternational Court of Justice. Alinea (b) deals with disputes arising out
V of
of the application or interpretation of all other articles of Part
the Convention, and provides for the settlement of such disputes through
conciliation.
170 The Concept of Jus Cogens

The general condition for the application of article 66, for either
of its alineas, is that the parties to a dispute which arises in the
material circumstances described in paragraph 1 of article 65 have
failed to reach a settlement within a time period of twelve months
following the date on which the objection was raised. In other words,
a party to a dispute requesting the application of the rule of article
66 should prove that no solution has been reached through the means
provided for by article 65, paragraph 3, or by a clause (or clauses)
of an individual treaty (article 65, paragraph 4), regardless of whe-
ther those means were exhausted or never used at all.
The party asking for the application of article 66 should prove
that an effort was made to achieve a settlement but failed either be-
cause a stalemate was produced or because of the reluctance of one
or more parties to participate in a procedure for settlement or to a-
gree on a proposed one. Such failure, of course, can occur only in the
event that the proposed solution is not binding on the parties; if the
solution is binding but a party refuses, for one reason or another, to
comply with it, the other party (or parties) cannot invoke article 66.
Given that in the diplomatic means of settlement a solution is not
considered reached unless all the parties agree to the proposed settle-
ment, while in the compulsory means of settlement the solution is con-
sidered reached through the very award of an arbitral tribunal or a
decision of a court, it follows that article 66 can be invoked only in
the first case, namely, when a non-binding solution is proposed (but
not reached). In case of a compulsory settlement its invocation is ex-
cluded.*4
If the general condition of application of article 66 is fulfilled,
then any of the parties to a dispute over the application or interpre-
tation of the provisions of Part V may ask for a settlement in accor-
dance with alinea (a) or (b) of that article. Ratione perso-
sonnae, the parties to such a dispute are only the parties to the
contested treaty which disagree on a point of law or fact over the pro-
posed measure of invalidation, relating to the provisions of Part V of
the Convention. No State which is not a party to that treaty can
invoke the machinery of article 66 because the types of disputes to

34, It also seems reasonable that article 66 cannot be invoked even after
the lapse of twelve months in the event that the dispute has been sub-
mitted to compulsory means of settlement and at the end of the twelveth month
is still pending.
The Settlement of Disputes 174

be settled through that machinery have already matured in the cir-

cumstances of application of article 65, paragraphs 1 to 3. This al-
together excludes any interpretation allowing for an expansion rati-
one personnae of the right of invocation of invalidity to the
parties of the Vienna Convention which are not also parties to the
contested treaty.
The parties to a dispute falling under article 66 are therefore the
parties to the contested treaty, and, more specifically, the claimant
party (or parties), that is to say the party which proposed the mea-
sure to be taken with respect to the illegal treaty, and the party (or
parties) objecting to that measure. The only difference between arti-
cle 65, paragraph 3, and article 66 with respect to their application
ratione personnae_ is that the parties which resort to the
application of article 66 are probably a part only of the parties among
which a dispute had matured under the provisions of article 65. This
is certainly explained by the fact that article 66 applies only to a h-
mited number of disputes (namely to disputes over the application or
interpretation of the provisions of Part V), whereas the disputes un-
der article 65 are not limited as to their subject-matter.
In the following lines the two different kinds of settlement pro-
vided for by article 66 with respect to the two categories of disputes
falling under that article, will be separately examined in order to het-
ter understand the mode of operation of the machinery of the set-
tlement of disputes as well as the possible repercussions of the appli-
cation of article 66 upon the validity of a contested treaty.

A. The Compulsory Settlement of Disputes under Alinea (a).

A party to a dispute concerning the application or interpretation

of article 52 or 64 may submit the dispute to the International Court
of Justice by a written application provided, of course, that the re-
quirements of the introductory sentence of article 66 are satisfied. The
right to proceed to such a step for the settlement of the dispute is
conferred to a party through the interplay of the provision of the
Vienna Convention (article 66) and article 36, paragraph 1, of the
Statute of the Court which reads as follows:
The jurisdiction of the Court comprises all cases which the par-
ties refer to it and all matters specially provided for in the Charter
Or in treaties and conventions in TOP Gea

35. Emphasis added. The party to the dispute, submitting it to the Court,
 472 The Concept of Jus Cogens

The actual in concreto jurisdiction of the Court over a di-

spute falling under alinea (a) of article 66 is acquired by the submis-
sion of a written application, as a form of instituting proceedings, by
the party to the dispute in accordance with article 66 of the Conyen-
tion and with paragraph 1 of article 40 of the Statute of the Court.
The latter reads:

Cases are brought before the Court, as the case may be, either
by the notification of the special agreement or by a written ap-
plication addressed to the Registrar. In either case the subject of
the dispute and the parties shall be indicated.*®

The peculiarity of the written application, as a form of instituting

proceedings, based ona right conferred by a provision of a treaty
(in the present case by article 66 of the Vienna Convention) is that
it secures, in principle, the jurisdiction of the International Court of
Justice over the submitted dispute irrespective of the will of the rest
of the parties to that dispute regarding such submission. While, the-
refore, in all cases the submission of a dispute to the Court requires
the consent of the parties to it, in the case of a written application
of that kind no particular agreement is required and the Court is sei-
zed by the application. The fact that the parties to the dispute are
at the same time parties to the Vienna Convention and therefore sub-
jects to the provision of article 66 (which confers the special jurisdi-
ction to the Court) indicates the existence of the consent of the par-
ties to the arrangement provided by article 66. There is, therefore,
no further need of renewing this once and for all given consent of the

a may be a member of the United Nations —a fact which automatically makes it a

party to the Statute of the Court — or it may be a party to the Statute of the Court
without being a member of the United Nations, or, finally, it may be neither a mem-
ber of the United Nations nor a party to the Statute. In the latter case article 34,
paragraph 2, of the Statute of the Court applies which reads : «The conditions un-
der which the Court shall be open to other States [non-members of the UN and
non-parties to the Statute] shall, subject to the special provisions contained in tre-
aties in force, be laid down by the Security Council, but in no case such conditions
place the parties in a position of inequality before the Court.» Also, see article 36
of the Rules of Procedure.
36. The other paragraphs of that article read: «2. The Registrar shall forth-
with communicate the application to all concerned. 3. He shall also notify the
Members of the United Nations through the Secretary-General, and also any other
State entitled to appear before the Court».
The Settlement of Disputes 173

parties to the Vienna Convention in each particular case submitted

to the Court on the basis of article 66.
If the jurisdiction of the Court is acquired by a written applica-
tion, the other parties to the dispute, duly notified, must present them-
selves before the Court and participate in the proceedings. If a party
does not appear «the other party may call upon the Court to decide
in favour of its claim» *7, However, according to paragraph 2 of arti-
cle 53,
the Court must, before doing so, satisfy itself, not only that it
has jurisdiction in accordance with Articles 36 and 37, but also
that the claim is well founded in fact and law.

Indeed, the Court must satisfy itself, even if all the parties to
the dispute are present, that it actually has jurisdiction over the sub-
mitted case.38 The search relating to the existence of jurisdiction should
include a careful sifting of the relevant provisions both of the Sta-
tute of the Court and of the Vienna Convention, which confer juris-
diction, and an examination as to the compatibility of the material
circumstances of the submitted case with these provisioms.
More particularly, the Court must satisfy itself that all the con-
ditions of application of article 66, alinea (a) are fulfilled: that the
submitted dispute is one over the application or interpretation of ar-
ticle 53 or 64 of the Convention; that the party submitting the dispute
has the right to do so; that the time limit of twelve months following
the date on which the objection was raised has been observed; that
an attempt was made by the party to use the machinery of paragraph

37. Article 53, paragraph 1 of the ICJ Statute.

38. Paragraph 6 of article 36 of the ICJ Statute states that «[iJn the event
of a dispute as to whether the Court has jurisdiction, the matter shall be settled
by the decision of the Court.» But even in the absence of a dispute there is a reco-
gnized practice, at least as far as the ICJ is concerned, according to which the Court
must examine the basis of its jurisdiction vis-a-vis a submitted dispute. As it was
stated by the Court in the Nottebohm case (Jurisdiction, Cre ie Or rats
419 (1953) ] «[pJaragraph 6 of Article 36 merely adopted in respect of the Court,
a rule consistently accepted by general international law in the matter of intern-
ational arbitration. Since the Alabama case, it has been generally recognized,
following the earlier precedents, that, in the absence of any agreement to the contr-
ary,an international tribunal has the right. to decide as
to its own jurisdiction and has the power to interpet
for this purpose the instruments which govern that
jurisdiction». (Emphasis added).
174 The Concept of Jus Cogens

3 of article 65; that no solution was reached under that machinery;

and that no outstanding dan ab ae of that dispute before another
court or tribunal exists.
The Court must satisfy itself that the parties to the dispute have
not decided by common consent to refer their dispute to an arbitral
tribunal. Indeed, article 66, alinea (a) subjects the reference of a dis-
pute to the Court to an absence of a common agreement between the
parties to submit it to arbitration. In consequence if such an agree-
ment exists, the Court is prevented from adjudicating on the dispute
and must declare a lack of due jurisdiction.®
It is unfortunate that the wording of the last paragraph of alinea
(a) of article 66 conditioning the submission of a dispute to the Court
is not successful in conveying what is exactly meant by an agreement
of the parties: does article 66 prevent the reference of a dispute to
the Court in all cases that an agreement — however general and vague
— exists, or does it do so only when such agreement specifically pro-
vides for the actual details of the constitution?
Basically, the wording inadequacy of the last phrase of alinea (a)
may allow for a certain abuse of the above condition of reference of
a dispute to the Court owing to the fact that there exists a funda-
mental difference between an agreement to refer a dispute to arbi-
tration and a final agreement on the constitution of the arbitral tri-
bunal (compromis ). Experience in international law has shown
that while an agreement may exist to the effect of referring a dispute
to arbitration, the agreement on the constitution of the relevant body
is quite usually affected by subsequent differences of the parties to the
dispute over the details of the constitution, such as the number and
the qualifications of the judges, the terms of reference, the extent of
the award, etc. Indeed, a failure in the eventual constitution of an
arbitral tribunal despite the existence of an original agreement is a ra-
ther usual phenomenon in the history of arbitration in international
law. 4°
The wording of the last sentence of alinea (a) creates the impres-
sion that what can prevent the Court from assuming jurisdiction over

ae aljeeay, GLE
40. As Professor Johnson concedes («The Constitution of an Arbitral Tribu-
nal», 152) «... the constitution of the [arbitral] tribunal is, on the whole, the f u n-
damental problem of arbitration and the failure of this particular method of
settling international disputes is a total failure». (Emphasis supplied).
The Settlement of Disputes 175

a submitted dispute is the general, initial, agreement of the parties

to submit their dispute to arbitration. It does not seem to require that
in order for the Court to reject a written application, the agreement
on the details of the constitution of a tribunal must have been rea-
ched; still worse, it does not clearly indicate a time period within
which the constitution must take place or the award of the tribunal
be delivered.
It must be assumed, however, that despite the wording deficiency
of article 66 on that matter, the Court, which under the circumstances,
is exclusively competent to determine its own jurisdiction with respect
to a submitted dispute, will decide on the basis of a number of con-
siderations. Considering the undisputed importance involved in a
timely and definite settlement of a dispute of the kind falling under
article 66, and given that the inadequacy of a general agreement to defi-
nitely settle such dispute is patently known, the Court should inter-
pret the wording of that article as requiring an agreement on the con-
stitution of an arbitral tribunal within a reasonable time limit. Any
other interpretation would actually threaten to defeat the relevant
provision of article 66, alinea (a).

As soon as it is decided by the Court that it has jurisdiction upon

the submitted case, the examination of the dispute concerning the ap-
plication or interpretation of one of the substantive provisions on jus
cogens may begin. The Court is limited in its decision over the
dispute by two determinant factors. First, by the content of the ju-
risdiction confered to it by the Vienna Convention, namely by the
command of article 66 stipulating that the Court shall adjudicate and
decide on a dispute concerning exclusively the interpretation or appli-
cation of article 53 or 64. The wording of article 66 certainly allows
the Court to embrace within its jurisdiction a very wide number of
possible disputes, including even one directly concerning the validity
of a contested treaty; a fact which can undoubtedly enhance the le-
gal order and the ratio legis behind the Jus cogens norms.
Yet, as already seen, the jurisdictional scope of the Court, howe-
ver wide, does not cover all possible disputes that may arise with re-
spect toa jus cogens norm and an illegal treaty. It is unque-
stionable that article 66, alinea (a) leaves outside its purview a
number of disputes which are no less important than those included
therein, insofar as they are capable of producing a stalemate that
would block the way to the invalidation of an illegal treaty. The fact
A760 The Concept of Jus Cogens

that article 66 refers all disputes over the rest of the articles of Part
V of the Convention (which are extremely vital for the achievement
of invalidation), to the non-compulsory settlement of its alinea (b),
while, at the same time, it completely overlooks all peripheral disp-
utes over the application or interpretation of illegal treaties (which,
incidentally, are left to be exclusively settled by the machinery of
article 65, paragraph 3), constitutes a major drawback which may
seriously affect the fate of many disputes over an illegal treaty.
Secondly, the Court is limited by the written application of the
party instituting proceedings and the submissions of the rest of the
parties to the dispute. It goes without saying that these terms of
reference which specify the jurisdiction of the Court with respect to
a particular dispute must comply with the jurisdictional framework
of article 66. No deviation from the limitations under article 66 can
be inferred unless, of course, all parties agree to that effect.”

A decision of the Court over a dispute of the kind referred to in

article 66, alinea (a) may render a great service both tothe parties
to the dispute and to the international community at large. Insofar
as the parties to the dispute are concerned, the authoritative, binding
decision of the Court will of course settle their differences in a defi-
nite way.* That binding settlement may mean either the invalidation

41, Cf. Rosenne, The Law and Practice of.the International

Court, 322. With respect to the effects that the application of the Statute of the
Court may have upon a pending dispute as regards the taking of interim measures
of protection, intervention of third parties in the adjudication of the dispute, etc. see
supra, 158 et seq. Here it must be stressed that in the circumstances of application
of alinea (a) of article 66, intervention under article 62 of the Statute acquires a
particular significance. Indeed, it may prove to be a quite influential factor in the
development of the concept of j}us cogens in international law. If it takes pla-
ce systematically, it should bring about a close collaboration between the law-ma-
king element and a law-determining agent of international law, namely the States
which are parties to the Vienna Convention and the ICJ. This collaboration in the
construction of articles 53 and 64 may assist, (a) in the creation of a solid jurispru-
dential approach vis-a-vis these significant provisions, and (b) in the consolid-
ation of the content of the jus cogens rules. Particularly in this early stage
of development of that concept, the intervention of States, in accordance with art-
icle 63, may contribute to a clarification of the position of the genuine law-makers
toward the concept, and assist the Court, in the absence of clear practice, to defray
its responsibilities without embarking upon a law-making adventure.
42. Article 59 of the ICJ Statute declares that «[t]he decision of the Court
has no binding force except between the parties and in respect to that particular
The Settlement of Disputes AN)

of the illegal treaty (or an authoritative rejection of its alleged ille-

gality, as the case may be), or the elimination of the disagreement
which stood in the way of invalidation. In either case, the particu-
lar relations of the parties, the existing rights and obligations and the
binding or non-binding character of their instrument will be clarified.
Moreover, the binding decision of the Court will certainly determine
any further step to be taken with respect to their treaty.
The international community will also obtain a great satisfaction
from the authoritative decision of the Court since its general interest
and well-being certainly lies with the elimination of illegalities from
the international legal order to which the decision of the Court dire-
ctly or indirectly contributes. Such decision, however, is also impor-
tant to the international community in another respect: that of the
creation of jurisprudence in matters of jus cogens norms. In-
deed, although a judgment of the Court is not binding upon non-par-
ties to a dispute, the authority of the deciding organ exerts a certain
consolidating influence upon the state of general law, since, in effect,
a decision of the Court is considered by international law as a law-
determining source.*®
That is not to say that, whatever the various positions of publi-
cicts may be as to the law-creating function of the Court, the con-
tribution of the latter to the jus cogens norm-making is any-
thing but extremely limited.44 The boundaries between law-creation

case». Article 60 reads : «The judgment is final and without appeal. In the event
of dispute as to the meaning or scope of the judgment, the Court shall construe it
upon the request of any party».
43. Cf. article 38 of the ICJ Statute. Virally («The Sources of International
mode
Law», 149) writes in this respect : «[J Judicial decisions may be classified as
of law. They can, however, make particular rules only. This is exac-
of creation
rules
tly what Article 59 [of the Statute of the ICJ] provides. As respects general
constitute only a ‘subsidiary means for the
of law, for purposes of Article 38, they
determination’ of such rules».
law-making
4k. The extent of the Court’s significance in the international
in accordanc e with the respective posi-
has been usually determined by theorists
laws take vis-a-vis the role of municipal courts in the law-
tions that their internal
nal law
creating process. Continental European publicists and generally internatio
its traditio-
writers of civil law origin tend to limit the Court’s significance within
seen in article 38 of the ICJ Statute. Internati onal lawyers,
nal scope, as may be
the other hand, of a common law origin tend to attach a particular significance
on
have a law-creat-
to the decisions of the Court which, for some of them at least,
ing power. Cf. comments by Virally (ibid., 150 ff.)
42
 178 The Concept of Jus Cogens

and law-determination should be carefully kept in view at all times,

particularly with respect to the jus cogens norms. For it should
not be forgotten that article 53 of the Vienna Convention makes it
absolutely clear that such norms are exclusively created by the autho-
rity of the international community of States and that no other in-
ternational agent, however influential or esteemed, can assume that
role. In consequence, although undoubtedly the Court will contribute
to the determination of the jus cogens norms, and,
moreover, to the interpretation of the provisions of the Vienna Con-
vention on jus cogens, that contribution must be seen in its
right perspective and in the light of the strict requirements of arti-
cle 53 of the Convention.

B. The Compulsory Reference of Disputes to a Non- Compulsory

Means of Settlement Under Alinea (b)

As has been seen, alinea (b) of article 66 deals with disputes over
the application or interpretation of all other provisions, substantive
or procedural, of Part V of the Convention.* If the conditions of ap-
plication set forth in the introductory paragraph of that article are
fulfilled, any such dispute may be referred to a Conciliation Commis-
sion by the unilateral application of one of the parties to it. In that
sense, the constitution of the Conciliation Commission under alinea
(b) is compulsory since the machinery provided therein is set in mo-
tion by the unilateral request of one of the parties to a dispute, ir-
respective, that is, of the will of the rest of the parties. The request
for the constitution of a Conciliation Commission is made to the Se-
=—_—_——
ei cretary-General of the United Nations who will take the necessary
steps to that effect.
The details concerning the constitution of the Conciliation Com-
mission and its modus operandi are contained in an annex
to article 66, which is an integral and binding part of the Convention.
According to that annex, the Conciliation Commission consists of five
conciliators who are «qualified jurists». Their names are drawn from
a list of conciliators which is maintained by the United Nations Se-
cretary - General. Four of them are appointed by the parties to the

45. In the circumstances of a dispute over a jus cogens norm and an il-
legal treaty the articles of Part V of the Vienna Convention which seem to fall
within the scope of article 66, alinea (b) are: articles 42 to 45, 65,66, 67,68 and 71.
The Settlement of Disputes 179

dispute. In other words, « [t]he State or States constituting one of

the parties to the dispute shall appoint: (a) one conciliator not of the
nationality of that State or one of those States, who may or may not
be chosen from the list referred to in paragraph 1; and (b) one con-
ciliator not of the nationality of that State or any of those States who
shall be chosen from the list...» The same right of appointment is
conferred to the other disputing party. All four concilators «shall be
appointed within sixty days following the date on which the Secre-
tary-General receives the request». The fifth conciliator is appointed
by the already appointed conciliators within sixty days.
In order to avoid any stalemate in the process of constitution of
the Conciliation Commission through possible procrastinating tactics
of one of the appointing parties, paragraph 2 of the annex provides
that:
If the appointment of the chairman or of any of the other con-
ciliators has not been made within the period prescribed above
for such appointment, it shall be made by the Secretary-General
within sixty days following the expiry of that period. The appoint-
ment of the chairman may be made by the Secretary-General
either from the list or from the membership of the International
Law Commission. Any of the periods within which appointments
must be made may be extended by agreement between the par-
ties to the dispute.
Any vacancy shall be filled in the manner prescribed for the ini-
tial appointment.

The above clause is apparently a good safeguard of the unhinde-

red constitution of the Conciliation Commission and of its smooth fun-
ction once it has assumed its task. An «automatic» appointment by
a third party (in this case, the Secretary-General of the United Nations)
in the event of a failure of the parties to appoint their members with-
in a fixed time-limit, is practically the only legal guarantee of the
constitution of the Conciliation Commission. As is also the case with
arbitration, the settlement of a dispute has often been blocked by a
delay in the appointment of a third party by the State entitled to
appoint, or by the complete refusal of the latter to that effect. That
is usually due either to a stratagem (with a view to avoid an unfa-
vourable settlement) or to a genuine concern to secure the appoint-
ment of a third party which may guarantee an impartial settlement
(or favour the best interests of the appointing State).
180 The Concept of Jus Cogens

These causes of possible delay in the constitution of the Conci-

liation Commission, which are successfully avoided by the provision
of the annex, apply also to delays in the filling of a vacancy which
may be produced after the Conciliation Commission has started fun-
ctioning properly. Considering, therefore, the obstacles which may be
presented in the constitution of the Commission or in the filling of a
vacancy, the provision of the annex appears to be of inestimable va-
lue since it eliminates one of the major stumbling blocks toward a
peaceful settlement of disputes.
Paragraph 3 of the annex contains a clause which allows a con-
ditional intervention of the parties to the contested treaty, which are
not parties to the particular dispute falling under alinea (b) of arti-
cle 66; it reads:

The Commission with the consent of the parties to the dispute,

may invite any party to the treaty to submit to it its views orally
or in writing.

The intervention of the parties to the treaty, but not parties to

the dispute, is therefore subject to the consent of the parties to the
latter, a fact which makes the clause almost useless. Furthermore, the
rule does not extend to the parties to the Vienna Convention but not
parties to the contested treaty. This arrangement overlooks the fact
that the disputes under alinea (b) of article 66 refer to the applica-
tion or interpretation of the provisions of Part V of the Convention,
and that, consequently, all the parties to that instrument may be
equally interested in submitting their views on the matter; not to men-
tion the fact that their presence would certainly facilitate the constru-
ction of the provisions involved in such a dispute and assist in the crea-
tion of a solid jurisprudence.
The function of the Conciliation Commission is enunciated in pa-
ragraphs 4, 5 and 6 of the annex, which reads as follows:

4. The Commission may draw the attention of the parties to any

measures which might facilitate an amicable settlement.
on The Commission shall hear the parties, examine their claims
and objections and make proposals to the parties with a.
view to reaching an amicable settlement of the dispute.
6. The Commission shall report within twelve months of its con-
stitution. Its report shall be deposited with the Secretary-Ge-
The Settlement of Disputes 181

neral and transmitted to the parties to the dispute. The re-

port of the Commission, including any conclusions stated the-
rein regarding the facts or questions of law, shall not be bin-
ding upon the parties and it shall have no other character
than that of recommendations submitted for the considera-
tion of the parties in order to facilitate an amicable settle-
ment of the dispute.*

Paragraph 6 of the annex clearly states, therefore, that the Con-

ciliation Commission, which is compulsorily constituted under the
provisions of article 66, alinea (b) and the annex to it (in the sense
explained in a previous paragraph), has only a recommendatory po-
wer with respect to the settlement of a dispute submitted to it. It fol-
lows that the definite settlement of the dispute depends on whether
the parties to it decide to apply the measures proposed by the Con-
ciliation Commission or not. However, the fact that this body has on-
ly a recommendatory power should not be regarded as dramatically
reducing its significance as a means of settlement. In the still quite
decentralized international legal system where the last word is usually
given by politics rather than law, the existence of a certain degree of
impartiality, when secured (as is the case with the provision
of alinea (b) ), may be extremely useful even if not compulsorily im-
posed upon the parties. An impartial determination of a dispute may
serve as a solid term of reference in the subsequent diplomatic ar-
rangement, and as a strong weapon in the hands of the party most
favoured by it. The more a political settlement is based upon such
impartial determination, the more international law and order are
enhanced.

An assessment of the overall system provided by the Vienna Con-

vention for the settlement of disputes which may follow the impea-
chment of a treaty on the ground of illegality (violation of a jus
eogens norm) should take into consideration the particular signi-

Annex to
46. Other particularities of the Conciliation Commission under the
(b) of article 66: (a) the Conciliati on Commissi on decides its own proce-
alinea
dations of the
dure (paragraph 3 of the annex) ; (b) the decisions and recommen
by a majority vote of the five members (para-
Conciliation Conmission are made
annex) ; «The Secretary -General shall provide the Commissi on with
graph 3 of the
Commission shall be borne
such assistance as it may require. The expenses of the
by the United Nations». (paragraph 7 of the annex).
182 The Concept of Jus Cogens

ficance of effective means of settlement of disputes relating to the in-

validity of treaties.
Indeed, the importance of the rules on the settlement of such dis-
putes could not be easily overstressed. In all legal orders they con-
stitute one of the fundamental tools through which the invalidity of
contractual instruments is accomplished. This is due to the fact that
the invalidation of a contractual instrument is seldom a simple affair.
Certainly, if the parties commonly agree on the invalid character of
their instrument no problem should exist. But that is admittedly a
rare phenomenon. In fact, in most cases the common consensus of the
parties regarding the legitimate character of their instrument or the
legitimacy of the conditions which led to its conclusion will be found
lacking. In other words, one or more parties will usually object to the
measure proposed by the other party or parties with respect to their
instrument thus giving rise to a dispute. At that point, therefore, the
existence of an impartial, authoritative organ which may resolve the
differences existing between the parties becomes absolutely indispen-
sable for the ultimate establishment of the invalid character of the
instrument. It goes without saying that the need for such an organ
becomes infinitely greater when what is at stakeis not simply the in-
terest of a party but that of a whole community. In such cases, the
function of invalidity and, as a result, the role of the organ dealing
with disputes arising over the contested instrument, acquire an un-
questionable social value.
The appraisal of the clauses provided by the Vienna Convention
for the settlement of disputes arising over the invalidation of an il-
legal treaty must therefore be undertaken with these points in mind.
As has been seen, the Convention provides, through its article 65, pa-
ragraphs 1 and 2, for a system of invalidation (in the absence of a
dispute) which has been called «consensual». Although that system
should,in principle, be successful in preventing unilateral assertions
of invalidity, it is not able (nor, anyway, intended) to secure, all by
itself, the invalidation of an instrument in all cases. What is further
needed is the existence of effective means to settle any possible dispu-
tes arising from a contest of validity, and to secure the compulsory
invalidation of an illegal treaty.
The issues which arise, therefore, with respect to the system of
settlement under articles 65 and 66 are basically two: the first con-
cerns the capacity of these articles to definitely settle a dispute fa-
cilitating in this way the eventual invalidation of an illegal treaty;
The Settlement of Disputes 183

the second issue concerns their efficiency in providing for an autho-

ritative invalidation of such treaty. These are two distinct issues re-
quiring a separate assessment.
With respect to the capacity of these articles to definitely settle
a dispute, thus clearing the way to a consensuel invalitation, it has
been seen that the Vienna Convention distinguishes two separate ca-
tegories of disputes providing for each of them a different treatment.
More specifically, the Convention distinguishes: (a) disputes over the
application or interpretation of the substantive articles on jus co-
gens (articles 53 and 64), and (b) all other disputes arising from
the material circumstances falling under article 65. For the first ca-
tegory, the Convention provides a treatment securing a compulsory
settlement (article 66, alinea (a) ); for the second, it either does not
secure any settlement at all or it simply provides for a recommenda-
tory, non-binding settlement (article 65, paragraph 3, and article 66,
linea (b) ). Thus, while one should praise the attitude of the Conven-
tion toward the first category of disputes, one should be rather cri-
tical with the lacuna that it creates through its vague and in-
definite treatment of the disputes falling under the second category.
Indeed, due to that treatment, the settlement of disputes concerning,
inter alia, directly or indirectly, cases of jus Cogens norms
depends entirely on the good faith of the parties or on the exertion
of non-legal, namely political pressure. Under such circumstances, Ca-
ses may be conceived where an illegal treaty may continue its ille-
gitimate operation for lack of effective means for the settlement of
a dispute which has arisen over the invocation of its invalid chara-
cter.
Concerning now the efficiency of article 65 and 66 in providing
g
for the authoritative invalidation of an illegal treaty, the followin
65,
recapitulating remarks must be made: first, according to article
d by the parties to it
the validity of a treaty can only be conteste
Conventi on to
which alone may use the machinery provided by the
for an
that effect. Secondly, the parties alone seem to be able to ask
not
authoritative invalidation of a contested treaty: not other organ,
under the circumst ances of articles
even the Court, appears to be able
65 and 66 to invalidate proprio motu the contested treaty.
through
In other words, the scheme of consensual invalidation introduced
by the
paragraphs 4 and 2 of article 65 remains practically unaffected
as well as
clauses on the settlement of disputes of the same article
of article 606.
184 The Concept of Jus Cogens

The general conclusion which may be drawn is that the system

of settlement of disputes provided by the Vienna Convention appears
to be rather ineffective. De lege ferenda, insofar, at least,
as the disputes over the jus cogens norms are concerned, the
ideal arrangement would be not only a compulsory adjudication of
all disputes likely to arise with respect to an illegal treaty, but also
a compulsory determination of such treaty’s validity through the au-
thority of a court or tribunal. Any party to the Vienna Convention
as well as any State of the international community should be able
to invoke the invalid character of a treaty and ask for its invalida-
tion by its parties. If, moreover, a consensual invalidation were not
reached within a reasonable time limit, any State of the internatio-
nal community should have the right to ask for an authoritative pro-
nouncement of the invalid character of the treaty by a court or tri-
bunal.
Unfortunately, instead of such an arrangement, the realities of
international law have dictated provisions whose wisdom could har-
dly be praised since the solution of a problem concerning predominan-
tly the international community, namely the invalidation of a treaty
which violates a jus cogens_ norm, is left under these provi-
sions, to the discretion of the parties to such treaty. It remains to
be seen whether, in practice, the extra-legal considerations which from
time immemorial have played a decisive role in balancing differences
and settling divergent tendencies, will also work effectively in cases
of illegal treaties thus making up for the deficiencies of the procedu-
ral provisions of the Vienna Convention on the Law of Treaties in
this respect.
 CONCLUSIONS

The examination of the procedural provisions of the Vienna Con-

vention has completed the image of the concept of jus cogens
as it is destined to function within the framework of the law of trea-
ties. It is time, therefore, to recapitulate in brief the basic features
of all the provisions pertaining to that concept, both substantive and
procedural, before embarking on the final task of assessing their impor-
tance for the international order.
Article 53 is the basic substantive provision on the concept of
jus cogens under the Vienna Convention. Its text contains (a)
the function of the concept in the sphere of international law, and
more specifically in the law of treaties; (b) a definition of the jus
cogens norms and the test for their identification; and (c) the
method of the modification of these norms.
The function of the concept of jus cogens (or, better, of
the jus cogens_ norms) is laid down both in the first sentence
of the article where it is stated that « [al treaty is void if... it con-
flicts with a peremptory norm of general international law» and in
its second sentence according to which « [a] peremptory norm of ge-
neral international law is a norm... from which no derogation is per-
mitted...» In other words, the concept of jus cogens incorpo-
rated in the homonymous norms of law, functions in the internatio-
nal sphere as a legal device prohibiting the conclusion of international
agreements, other than general treaties, which have a content conflict-
ing with their provisions, and invalidating any agreement which,
despite that prohibition, violates a norm of law having the character
Ol ialse .©.0-2e Nis,
The function, therefore, of the concept of Jus cogens in the
of the
law of treaties is similar to that of the corresponding concepts
aspects: it has a preventi ve fun-
municipal legal systems in both its
subjects of law to
ction restricting the contractual autonomy of the
186 The Concept of Jus Cogens

fields of legal activity not pre-empted by the subject-matter of the

imperative rules, as well as a sanctioning power consisting in the ex-
tinction of all agreements violating these rules of special nature.
The second sentence of article 53 provides as well for the defi-
nition of the term «peremptory norm of general international law (jus
cogens) ». This definition is more a test of identification than aclear
and complete delimitation of the characteristics of the jus cogens
norms. As has been stressed, the efforts of the drafting bodies, and
in particular of the Vienna Conference, were directed toward the crea-
tion of an efficient test of identification. The drafters realized that
the jus cogens_ norms should be well identifiable, in the sense
that they should be discernible from all other rules of international
law which do not carry the extraordinary jus cogens function.
Indeed, only the possibility of an easy identification of the Jus co-
gens norms can assure that, in the circumstances of international
legal relations, the security of treaties will not be threatened by ar-
bitrary allegations of invalidity.
The test of identification of the jus cogens norms under
article 53 consists of the following two requirements : in the first place,
in order for a rule to be considered as belonging to the family of jus
cogens, it should be a rule of general international law, namely
a rule which has been accepted by the wide majority of States as
binding upon them either as custom or convention; secondly, a perem-
ptory norm should, beyond its being a general norm, be «accepted
and recognized by the international community of States as a whole»
asa jus cogens norm. In other words, the international commu-
nity must have agreed that it is actually a norm from which no de-
rogation is permitted through particular agreements between States.
The test of identification under article 53 does not, of course,
settle the fundamental problem of which are the jus cogens
norms in international law. One the contrary, one might say that it
makes the determination of these norms a quite difficult task by re-
quiring a degree of evidence which may not always be easily obtained.
This weakness, however, of the definition is the strength of the article:
unable to agree on the fundamental issue of a clear-cut enumeration
of the jus cogens norms, the drafters tried to eliminate any
arbitrary invocations of the invalid character of allegedly defective
treaties through the stipulation of some strict requirements for
the consideration of a rule as a peremptory norm. It seems that in
this respect the test of identification has fully succeeded. By requi-
Conclusions 187

ring a painstaking examination of the existing evidence of the practice

of States, it excludes the possibility of easily drawn generalizations
and inferences regarding alleged social values, as well as the applica-
tions of analogous schemes borrowed from alien legal systems.
The importance of the achievement of the drafters with respect
to the test of identification cannot be overstressed: they succeeded
in providing a flexible, and hence durable, test whose plancy, moreo-
ver, does in no way threaten the stability of treaties. Indeed, the re-
quirements of article 53, namely that a jus cogens norm must
be a general rule enjoying the special consent of the internation al com-
munity as to its specific nature, rigid as they are, are perfectly adju-
stable to any transformations that might occur in the mechanisms of
consent-giving which is the predominant element of the internation al
law-making. As long as the consent plays a leading role in the
creation of law and constitutes the core of the international legal sy-
stem, the requirements of article 53 may sustain any modification in
its methods and mechanisms.
For the present nothing indicates that the consensual pattern of
current
international law is in any way declining. The fact that the
trend as to the signi-
sociopolitical circumstances evidence a changing
ficance of the individual consent, does not dispose of the
interna-
overall significances of consent as the basic prerequisite of the
into-a
tional law-making; for although international law is growing
part of the legislatio n may
more centralized legal system, in which
such
eventually be conferred to a third organ outside individual States,
com-
conferment will still be based on the consent of the international
munity as the sole determinant factor of the obligatoriness of interna-
on the
tional law. Whatever change is in store, it will not be based
voluntary , consen-
restriction of consent properly speaking, but on the
order. Thus, the
sual subordination of States to the dictates of world
are another
requirements of article 53 (which, needless to stress again,
to the consensual
manifestation of the strong attachment of States
international
law-making) seem to fit well with the basic structure of
law, present and future.
of the test un-
What is furthermore encouraging for the duration
may allow the de-
der article 53 is that its strong positivist character
jus cogens so as to cover, beyond
velopment of the concept of
itutional» rules,
the present limited spectrum of «fundamental», «const
l in the sense of
a number of rules which, though not fundamenta
system, may never-
constituting the cornerstones of the international
188 The Concept of Jus Cogens

theless be of importance to the function of specific fields of interna-

tional law. We here refer to the likelihood of the emergence of rules
of law, mostly of a conventional character, which will create a solid
uniformity within many specific fields of international law, thus al-
lowing the consolidation of a legal substratum necessary for the fur-
ther development of these fields. These rules would be considered as
jus cogens norms by the very fact that they would enjoy the
consent of the States as to their specific nature, for as long as such
consent would last. In the same vein, States may find it opportune
to bestow the character of jus cogens to certain rules, of a te-
chnical or procedural nature, which, though without obvious socia]
significance, may serve interests considered by States as indispensa-
ble to their well-being at a given time. It is indeed fortunate that
the formulation of the test of article 53 allows much room in which
the concept of }us cogens may freely breathe and grow.
The merit of the test of identification becomes even greater if one
takes into consideration the difficulties that confronted the conference,
as well as the International Law Commission, in the drafting of the
relevant provisions. It should not be forgotten that the drafters were
dealing with a topic of a radical character and fundamental impor-
tance for international law, and this without the assistance of any past.
practice, or, at least, some degree of consensus between them as to
the exact scope and identity of the jus cogens norms. In fact, they
undertook the drafting of these articles with the simple understand-
ing that the time seemed ripe for the introduction of a concept limiting
the contractual activity of States. And in so doing, they had to re-
concile differences of substance, and to efface with one stroke so many
years of international experience which was undoubtedly inimical to
the philosophy underlying the concept of jus cogens. It is for-
tunate, therefore, that despite such adverse circumstances what came
out of that drafting was a test of identification which at least may
discourage abuses of the jus cogens concept, insofar as such
abuses may rest on an ambiguous and multi-semantic interpreta-
tion of the substantive provisions on the jus cogens norms.
That is not to say, however, that the test is impeccable even in
this respect. The drafting inadequacies of the second sentence of ar-
ticle 33 were discussed in the relevant section and the reader may
remember that that sentence contains an unorthodox and not well-
clarified term («the international community of States as a whole» )
which may eventually invite problems of interpretation. Yet, it would
Conclusions 189

be unfair to discard the entire test as unsuccessful on account of that

drafting deficiency; the spirit of the test is easily discerned in the
sense that a gross manifestation of bad faith would be required in
order for a State to deny the ultimate intentions of the article. Inter-
pretations of the words «as a whole» (or even of the words «general
international law» contained in that sentence) may certainly vary but
not to the extent of distorting the spirit of the «double consent» ma-
nifest in the text of article 53.
While the text regarding the test of identification conveys the
intentions of its drafters in a rather eloquent way, the same cannot
be said with respect to the rest of the second sentence of article ba,
The provision on the way of modification of the Jus cogens norms
has been criticized in this study as being rather unrealistic and, in
view of the present international legal patterns, almost incomprehen-
sible. Although the drafters of the Convention perceived the need of
providing for the modification of the jus cCogens norms, their
permane—nt and certainly justified —fear of abuses of the concept
took precedence over the equally important need of a realistic con-
frontation of the matter. The modification of the jus cogens
norms as provided by the Convention takes no heed of the traditio-
nal processes of international law in matters of modification and, mo-
reover, is in conflict with the very definition of the jus cogens
norms contained in the same article.
Finally, criticisms may also be sustained against the second sub-
stantive article on jus cogens, namely article 64. It seems that
the provisions of this article, which deals with the circumstances of
the jus cogens emergens, do not settle in an unequivocal
way the consequences of their application upon the validity of a tre-
aty. The very inclusion of article 64 in the section of termination and
the rather confusing association of the terms «invalidity» and «termi-
nation» may prove to be two serious impediments to the normal function
of the jus cogens concept. It is to be hoped that reasonable in-
terpretations will eventually prevail to correct the drafting laxities.
The foregoing conclusions drawn with respect to the substantive
articles on the concept of jus cogens indicate that the first step
tion of
taken by the international legislation concerning the introduc
circumst ances of good faith,
the concept was successful. Under normal
ive articles should
the interpretation and application of the substant
, good faith
not give rise to major clashes and divergences. However
the conduct
and impartiality can hardly be expected to be found in
190 The Concept of Jus Cogens

of States which disagree on an issue as serious as that implied by the

very interference of the jus cogens. If some conflicting interests
lead to a dispute over the valid operation of a treaty and its compli-
ance with a jus cogens norm bringing fourth the application of
article 53 or 64, it is obvious that each of the States-parties to such
dispute would argue in favour of its own position even against the
required. degree of reasonableness that might be ao to exist at
the level of inter-State relations.
In view of the likelihood of such conflicts, the mere existence of
the two substantive articles would not have been adequate. To com-
plete and realize the function of the concept of jus cogens, the
Convention had to be enriched with a machinery able to cope with two
obvious issues raised by the substantive articles: first, the issue of their
interpretation and application as legal rules in the circumstances of
the international legal relations, and more specifically within the fra-
mework of the Convention; and, secondly, the issue of the realization
of the sanction which they provide, given that their text does not con-
tain any indication of how this sanction can be substantiated. The que-
stion which, therefore, immediately arises is whether the Vienna Con-
vention does offer effective means for (a) the impartial determination
of its text, and, notably, of articles 53 and 64, and (b) the realiza-
tion of the sanction of jus cogens as laid down in the relevant
provisions.
Insofar as the first question is concerned, the answer must be
unhesitatingly in the affirmative. Problems of application and inter-
pretation of the substantive articles (and of the articles implementing
them) are rather satisfactorily covered. Article 65 of the Convention
provides that in the case of a dispute concerning, inter alia, the
application or interpretation of the articles of the Convention, the
disputing parties «shall seek a solution through the means indicated
in article 33 of the Charter of the United Nations». Since, however,
in most of the cases, this general provision may be ineffective in se-
curing a definitive settlement of a dispute over the text of articles
53 and 64, the Conference rightly added article 66 providing for a
compulsory settlement through the impartial determination of either
the World Court or an arbitral tribunal (and a non-compulsory but
potentially effective means of consideration of a dispute over the ap-
plication and interpretation of the rest of the articles of Part V). It
should therefore be admitted that the Conference of Vienna has rea-
ched a solution — especially by the addition of article 66 — which will
 191
Conclusions

undoubtedly serve the concept of Jus cogens, particularly in its

early stage of development.
As regards the second question which amounts to a query as to
whether the Convention secures through its provisions the due reali-
zation of the international community’s expectations as they are refl-
ected in articles 53 and 64, the answer, unfortunately, cannot be as
optimistic as it should have been. There are two basic points which
make the student of the concept to look at its future with much sce-
pticism. The first is the inappropriateness of the type of invalidity
with which the concept of jus cogens is endowed through the
is
aggregate of the relevant provisions of the Convention; the second
to al-
the inadequacy of the procedure provided by the Convention
ways secure the settlement of a dispute over an illegal treaty.
The obvious characteristics of the type of invalidity devised by
io legis
the Convention, which by and large conflict with the rat
the void
of the jus cogens concept are admittedly (a) the fact that
hed by a compuls ory procedur e,
character of a treaty has to be establis
omnes invocati on of
and (b) the manifest absence of an erga
is purport ed
invalidity. Indeed, paragraphs 1 and 2 of article 65 which
to discourage abusive, unilater al invocati ons of invalidi ty, applies to
tion under the Convent ion and,
all grounds of invalidity and termina
53 and 64. The result of
consequently, to cases falling under articles
definiti vely void
such application is that a treaty cannot be considered
effect. Although
until the time that all the parties to it agree to that
ing the part-
the wisdom of that provision is hardly disputable consider
relations , it seems that
icular circumstances of international legal
to be virtually
it is nevertheless inappropriate for an illegal treaty
is reached.
valid until the time that such consensual invalidation
ery of the Conven tion becomes
This deficiency of the machin
the same paragr aphs (1 and
more aggravated if one considers that
tion of the void
2) of article 65 do not grant any right of invoca
The whole machinery
and illegal character of a treaty to third parties.
to an illegal treaty,
of invalidation is left in the hands of the parties
gly most of the time,
that is to say, to those States who, knowin
law. This characteristic
violated a peremptory norm of international
of the type of invalidity
does not simply change the overall character
te nullity to a special
affecting an illegal treaty from one of absolu
distort ing the concept of jus
kind of sanction; it further succeeds in
values and
cogens as a legal device purported to protect the
The illegality of a treaty,
interests of the international community.
 AO The Concept of Jus Cogens

its extinction, the consequences of that extinction, and the methods of

the re-establishment of the status quo (article 71) are all left,
due to the provision of article 65, to the ultimate settlement of the
wrongdoers as if a violation of a jus cogens norm were a purely
private matter and concern. The international community, unable to
use the Convention’s machinery, has as its only weapon the usual
diplomatic pressures and the traditional channels of the decentralized
international legal system.
Yet, this is not the end of the matter. The fact is that even a
party to an illegal treaty which is willing to invalidate that treaty can-
not always be sure that, despite the existence of an undisputed ille-
gality, in may bring about its eventual invalidation. The machinery
of settlement of disputes under the Convention, although quite ade-
quate to deal with problems of application or interpretation of the
substantive articles 53 and 64, secures neither a compulsory settlement
of all unexceptionally the disputes which may arise with respect to
aes
an illegal treaty, nor the authorirative invalidation of such a treaty.
Under these circumstances, the likelihood of a stalemate blocking the
invalidation of an illegal treaty is certainly far from excluded.
The significance of the continuance of the operation of an illegal
treaty either through the absence of an invocation of its invalid cha-
racter or through a failure to successfully invoke it, cannot be over-
looked: the illegal treaty may continue to produce effects which will
unquestionably harm the international community in one way or ano-
ther. Moreover, the illegal treaty as an effective legal instrument re-
presents an evidence, however minimal, of what the law is in a par-
ticular instance; it is part of the practice of States indicating what
the status of a legal rule is at a given time. As aresult, while a sole
isolated instance cannot be creative of general law, it is nonetheless
an element which may hamper the foundation of the rule which is
being violated. As has been seen, the norms of jus cogens are
extremely sensitive since they must enjoy the acceptance and recogni-
tion of the great majority of States as rules not permitting violations
from their content in order to retain their higher character. Any in-
dividual violation, therefore, counts seriously in the assessment of the
comphance of the international community with the imperative nature
of a norm.

The overall conclusion which may be drawn from the examination

of the articles of the Vienna Convention which introduce in the sphere
 193
Conclusions a.

of the law of treaties the concept of jus cogens is that the pro-
cedural provisions, namely articles 65 and 66, are mainly responsible
for the virtual distortion of the nature of the concept under the Con-
vention on account of their not being bold enough in coping with the
exigencies of the substantive provisions. Indeed, while articles 53 and
64, as well as the rest of the implementing articles on jus cogens
(articles 45, 71 etc.) may be considered, in their general lines, as set-
ting in its proper context the question of peremptory norms under the
Convention, articles 65 and 66 do not back them accordingly. As a
result, the whole edifice of the concept becomes jeopardized.
It appears that here again, as in many other instances of the
international legal relations, bold intentions of substantive changes
have been neutralized by weak procedures. The aggregate of the ar-
ticles on the concept of jus cogens under the Vienna Conven-
tion is indeed a typical example of the helplessness of international
sub-
law when it comes to the creation of strong procedural rules to
stantiate essentially correct but ambitiou s intention s. The introdu-
ction of the jus cogens concept perfectly illustrates the causes
to that
of that phenomenon: the rules of the Convention pertaining
interna-
concept are the result of another compromise made by the
to reconcile the conflicti ng interests of
tional community in its effort
al State on the other.
the society, on the one hand, and of the individu
aspiring over
The international community has been increasingly
of international
the last decades to the establishment of a pattern
ation. It has aban-
relations based upon peaceful coexistence and cooper
and postur e of gladiators», na-
doned what Hobbes called the «state
war and has instead de-
mely a continuous state of real or potential
of reciprocity and mu-
veloped relations of complex forms on the basis
ational community has
tual understanding. In’ other words, the intern
has, of course, some
begun to be shaped into a real society. A society
for protec tion. The concept
prevalent interests and values which call
has therefore entered the scene of international
of jus cogens
the need of such protection
legal relations exactly at the time that
is urgently felt.
sovereign, independent en-
The individual State, however, as a
part of its powers in favour
tity was and still is reluctant to alienate
tance is probably due to
of the common well-being. Part of this reluc
in international relations; while
a mistrust and fear which still survive
inly be the current structure of
another reason behind it must certa a mo-
national community is
the international society. The «new» inter 13
194 The Concept of Jus Cogens

saic of almost one hundred and fifty independent States whose poli-
tical, cultural and economic patterns considerably differ. It is inevi-
table, therefore, that their approaches to some fundamental issues of
common interest also differ. As a result, the international decision and
law-making is confronted with a host of impediments. States prefer
to retain, as far as possible, the utmost of discretionary power that
they can get under the present circumstances of historical development.
For that reason, procedural rules, which, by and large, may be ha-
zardous to the discretionary manipulation of the international law que-
stions by States, are usually avoided or at least formulated in such
a way as to be actually harmless.
The aggregate of the provisions of the Vienna Convention on the
concept of jus cogens._ illustrate in an eloquent manner the ba-
sic confrontation between the growing social concerns and the omni-
potent perseverence of States in their sovereign rights. It appears that
the result of this clash was the not so successful compromise which
has been examined in the present study. The concept of Jus co-
gens was eventually introduced in the law of treaties but it was
framed so inoffensively for State sovereignty that its extraordinary
social value is seriously compromised.
There is, however, an undisputed positive element in the introduction
ofthe }us cogens concept by the Vienna Convention. Indeed, the
acceptance, in principle, of that concept by the international commu-
nity proves that the outcome of the strife between the conflicting for-
ces of the international law-creation can at times be quite encoura-
ging. For there can be little doubt that the introduction of jus co-
gens constitutes, as such, a remarkable step forward towards a more
disciplined international legal order. The Vienna Convention is, in
this respect, part and parcel of the spirit and tradition which were
initiated by the Covenant of the League of Nations, the United Na-
tions Charter and the various multilateral conventions of the recent
past. From that point of view, therefore, it can be safely maintained
that the introduction of the concept of jus cogens in the do-
main of the law of treaties is a strong evidence that the pace conti-
nues to exist and that the international community is rapidly heading
towards some more advanced forms of organization under the rule
of law and justice.
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