Jus Cogens (Peremptory Norms) - A Key Concept Of The International Law

• Author: Charlotte Ene
• Position: Department of Law, Bucharest University of Economic Studies, Romania
• Pages: 302-304

JUS COGENS (PEREMPTORY NORMS)

- A KEY CONCEPT OF THE INTERNATIONAL LAW

Associate professor Charlotte ENE1

Abstract

One of the most important concept of international law, jus cogens, still has a controversial significance. Jus

cogens is a Latin term meaning a mangatory or compelling law, and it refers to the peremptory norms of general

international la w from which derogation is forbidden. Despite the fo rmal recognition of this legal concept, based on

articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties, regarding the nullity of the provisions of a

treaty which come into conflict with a peremptory norm, jus cogens has a wider application in the international realm

than the law of treaties. Therefore, jus co gens can appear in different forms, such as treaty law, customary law, general

principles of law, etc., according to the content of th e norms. This paper aims to analyse the significance of this lega l

concept, the role of it in international law and the relevance of it for the international doctrine and the jurisprudence of

international courts.

Keywords: international law, jus cogens, peremptory norm, internationa l public order.

JEL Classification: K33

1. Introduction

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 53 on “Treaties

conflicting with a peremptory norm of general international law (“jus cogens”)” 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 international law is a

norm accepted and recognized by the international community of States as a whole as a norm from

which no derogation is permitted and which can be modified only by a subsequent norm of general

international law having the same character”.

The 1969 Vienna Convention on the Law of Treaties stipulates in its Article 64 on the

“Emergence of a new peremptory norm of general international law (“jus cogens”)” that “If a new

peremptory norm of general international law emerges, any existing treaty which is in conflict with

that norm becomes void and terminates”.

We may observe that the provisions of the Convention menti oned above, provide criteria for

determine the norms could be qualified as jus cogens.

As was underline in legal literature, the norms belonging to jus cogens are applicable to the

entire international community as whole. Also, all peremptory norms involves the prohibition of

derogation from its and are supplemented with sanctions.2

Moreover, the concept of jus cogens have appeared in the context of the Draft articles on the

responsibility of states (2001)3 and international organizations (2011)4, the Guiding principles

1 Charlotte Ene – Department of Law, Bucharest University of Economic Studies, Romania, enecharlotte@gmail.com.

2 Cezary Mik, Jus Cogens in Contemporary International Law, XXXIII POLISH Yearbook of international law - 2013, Polish Academy

of Sciences Institute of Law Studies and the Committee on Legal Sciences, Warszawa 2014, p. 35; Christian Tomuschat, Jean-Marc

Thouvenin (eds), The Fundamental Rules of the International Legal Order. Jus Cogens and Obligations Erga Omnes, ed. Koninklijke

Brill Nv, Leiden, 2006, p. 30; Lauri Hannikainen, Peremptory Norms in International Law: Historical Development, Criteria, Present

Status, ed. Finnish Lawyers Publishing Company, Helsinki, 1988, p. 23; Alexander Orakhelashvili, Peremptory Norms in International

Law, ed. Oxford University Press, Oxford, 2006, p. 27.

3 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (hereinafter: Responsibility of States.

Commentaries 2001), available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf., consulted on 1.10.

2019.

4 Draft Articles on responsibility of international organizations, with commentaries (hereinafter: Responsibility of international

organizations. Commentaries 2011). Text together with commentary is available at: http://legal.un.org/ilc/texts/instruments/english/

commentaries/9_11_2011.pdf., consulted on 1.10. 2019.