- •I. Sources of international law as applied by the International Court of Justice
- •What is the force of a treaty for a State which has signed it but has not ratified it yet?
- •Can a third State be bound by a provision of a treaty?
- •What is the relationship between a treaty and jus cogens norms?
- •Jus cogens
- •Erga omnes
- •Principles of interpretation of a treaty. How can travaux preparatoires be relevant to the treaty interpretation?
- •What is customary international law? What are the elements of customary international law?
- •International customary law
- •How does a rule become customary international law?
- •Two criterias
- •Silke Sahl What is Customary International Law?
- •Evidence of Customary International Law
- •§ 103 Evidence of International Law
- •What is opinio juris? How can it be proven?
- •What is State practice? Where can it be found?
- •1) Both physical and verbal acts of States constitute practice that contributes to the creation of customary int. Law.
- •2) The practice of the executive, legislative and judicial organs of a State can contribute to the formation of customary international law.
- •2) State practice concerned must be both extensive and representative.
- •3) The time necessary to form a rule of customary international law through the adoption of virtually uniform, extensive and representative practice.
- •Can a provision of a treaty become customary international law? If so, what is required for a norm of a treaty to become customary?
What is the relationship between a treaty and jus cogens norms?
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Jus cogens
A number of rules of international law are part of the Latin concept of "jus cogens", also referred to as peremptory norms, and meaning "the compelling law". Jus cogens status is the highest status that can be attained by any principles or norms in international law.
Jus cogens status is given only to the most fundamental rules of international law, which are recognised and accepted by the international community as rules from which no exceptions can be made (article 53 of the Vienna Convention on the Law of Treaties).
All states are obliged to follow jus cogens rules at all times. Crimes which have attained the status of jus cogens are particularly outrageous crimes, which are seen as affecting the international community as a whole, such as genocide, slavery and torture.
Erga omnes
A number of particularly heinous crimes - normally those that are categorised as violations of jus cogens rules - give rise to so called "erga omnes" obligations. Erga omnes is another Latin concept and means "towards all".
Just as the jus cogens crimes, the crimes that give rise to erga omnes obligations are seen as affecting the international community as a whole, and consequently all states in the world have an obligation to take action against the perpetrators of such crimes.
For example, states should search for and prosecute the perpetrators. This obligation follows from what is called the principle of universal jurisdiction - all national courts in the world can put perpetrators of erga omnes crimes to trial.
Malcolm N. Shaw
The concept of jus cogens is based upon an acceptance of fundamental and superior values within the system and in some respects is akin (родственна, сходна) to the notion of public order or public policy in domestic legal orders. The position is complicated by the existence of norms or obligations deemed to be of a different or higher status than others, whether derived from custom or treaty. These may be obligations erga omnes or rules of jus cogens.
Various examples of rules of jus cogens have been provided, particularly during the discussions on the topic in the International Law Commission, such as an unlawful use of force, genocide, slave trading and piracy. However, no clear agreement has been manifested regarding other areas.
Article 53 of the Convention provides that:
[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general int. law is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character.
Article 64 declares that ‘[i]f a new peremptory norm of general int. law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’.