Giorgio Gaja - Jus Cogens - Beyond The Vienna Convention

JUS COGENS
BEYOND THE VIENNA CONVENTION

by
GIORGIO GAJA
G. GAJA
275
TABLE OF CONTENTS
Chapter I. The law of treaties 279
1. Preliminary remarks on the relevance of the provisions in the
Vienna Convention concerning treaties conflicting with peremp-
tory norms.
2. A short analysis of different types of international obligations.
The category of rules imposing obligations towards all States
also in specific cases.
3. A tentative definition of the concept of peremptory norms. The
question of the legality of treaties conflicting with peremptory
norms. The 'ways in which conflict with a peremptory norm can
affect the validity of a treaty.
4. The significance of the recognition and acceptance of peremp-
tory norms by the "international Community as a whole" accord-
ing to Article 53 of the Vienna Convention. The scope for "re-
gional" peremptory norms.
5. Partial and total invalidity of treaties conflicting with peremp-
tory norms.
6. The role of the procedural rules and the judicial remedies provided
by the Vienna Convention. The ICJ's attitude towards defining
norms as pertaining to fus cogens, in particular in the case of the
United States Diplomatic and Consular Staff in Tehran.
7. Applying the test of effectiveness to peremptory norms.
8. Concluding remarks.
Chapter II. The law of State responsibility 290
9. Preliminary remarks on the possible impact of peremptory
norms in the field of State responsibility.
10. The possibility of justifying the violation of an international
obligation because of the emergence of a new peremptory norm
(Art. 18, para. 2, of the ILC draft).
11. The existence of an obligation under a peremptory norm as a
limitation to the admissibility of the injured State's consent
(Art. 29, para. 2, of the ILC draft).
12. The question of the possibility of invoking the state of necessity
in order to justify violations of peremptory norms (Art. 33,
para. 2 (a), of the ILC draft).
13. Limitations concerning counter-measures to a wrongful act (Art.
30 of the ILC draft).
14. The relations between obligations under peremptory norms and
international crimes as defined in Article 19, paragraph 2, of the
ILC draft.
Notes 302
Bibliography
314
276
BIOGRAPHICAL NOTE
Giorgio Gaja, born in Lucerne, Switzerland, in 1939. Laurea in Giurispru-
denza, University of Rome, 1960. Periods of research at Vienna, Oxford, The
Hague and Rome. Assistente volontario in International Law, University of
Rome, 1962-1963. Assistente ordinario in International Law, University of
Camerino, 1963-1969 and University of Rome, 1969-1972. Abilitazione alla
libera docenza in International Law, 1968. Lecturer at the University of
Camerino, 1968-1972. Professore straordinario of Private International Law,
University of Camerino, 1972-1973, of International Law at the same Univer-
sity, 1973-1974 and at the University of Florence, 1971-1975. Professore
ordinario of International Law at the Faculty of Law of the University of
Florence since 1975. Dean of the same Faculty, 1978-1981.
Also lecturer on European Community Law in the Faculty of Political
Science of the University of Florence since 1978. Visiting Professor of Inter-
national Law, Johns Hopkins University, Bologna Centre, 1977-1978. Visiting
Professor at the European University Institute, Florence, Autumn 1978; Part
Time Professor at the same Institute, Autumn 1980.
Secrtaire-rdacteur at the Edinburgh (1969), Zagreb (1971) and Rome
(1973) sessions of the Institut de droit international. Rapporteur at the 1973
Colloquium organized by the Hague Academy of International Law.
Member of the Advisory Board, Common Market Law Review. Member of
the Board of Editors, Italian Yearbook of International Law. Redattore, Rivista
di diritto internazionale.
277
PRINCIPAL PUBLICATIONS
"Sulla cittadinanza dei libici domiciliati in Italia", Il Foro Italiano, Voi. 85
(1962), 1,2128-2132.
"Il diritto al nome nel diritto internazionale privato", Rivista di diritto inter-
nazionale, Voi. 46 (1963), pp. 73-88.
"In tema di rogatoria a console italiano", Il Foro Italiano, Voi. 86 (1963), I,
1052-1062.
"Legislazione siciliana e obblighi internazionali", Giurisprudenza italiana,
Voi. 115(1963), I, 1, 1359-1370.
"Il Trattato di Mosca e l'uso in guerra delle armi nucleari", Rivista di diritto
internazionale, Voi. 46 (1963), pp. 397-400.
"Concorso fra procedimenti per la formazione del giudicato sulla base di una
decisione straniera", Rivista di diritto internazionale, Voi. 48 (1965), pp.
29-63.
Decisioni della Corte costituzionale in materia internazionale (1965), pp. 147
[edited volume].
"Sulla dichiarazione di efficacia di sentenza straniera in giudizio pendente",
Comunicazioni e studi, Voi. 12 (1966), pp. 537-570.
L'esaurimento dei ricorsi interni nel diritto internazionale (1967), pp. 246.
"Recenti vicende della Convenzione di Varsavia del 1929 sul trasporto aereo
internazionale", Rivista di diritto internazionale, Voi. 50 ( 1967), pp. 95-106.
"Sull'accertamento delle norme internazionali generali da parte della Corte
costituzionale",Rivista di diritto internazionale, Voi. 51(1968),pp. 315-322.
"Diritto internazionale privato e riconoscimento delle sentenze secondo due
recenti convenzioni", Rivista di diritto internazionale privato e processuale,
Voi. 5(1969), pp. 25-47.
"Sulla rilevanza del diritto internazionale circa la delimitazione delle postest
legislative statale e regionale", Rivistadidirittointernazionale, Voi. 52(1969),
pp. 322-328.
La deroga alla giurisdizione italiana (1971), pp. 396.
"Infanzia (diritto internazionale)", Enciclopedia del diritto, Voi. 21 (1971),
pp. 410-416.
"Lavoro (diritto internazionale pubblico)", Enciclopedia del diritto, Voi. 23
(1973), pp. 620-641.
"Problems of Applicability of International Conventions on Commercial
Arbitration", Commercial Arbitration, Essays in Memoriam Eugenio
Minoli (\914), pp. 191-217.
"Competenza statale e competenza regionale rispetto all'inquinamento mari-
no", Giurisprudenza costituzionale, Voi. 19 (1974), pp. 2139-2145.
"River Pollution in International Law", in Hague Academy of International
Law, Colloquium 1973. The Protection of the Environment and Interna-
tional Law (1975), pp. 352-396.
"Matrimonio e cittadinanza: aspetti costituzionali", Giurisprudenza costitu-
zionale, Voi. 20 (1975), pp. 2086-2098.
"Considerazioni sugli effetti delle sentenze di merito della Corte internazionale
di giustizia", Comunicazioni e studi, Voi. 14 (1975), pp. 313-335.
"Reservations to Treaties and the Newly Independent States", Italian Yearbook
of International Law, Vol. 1 (1975), pp. 52-68.
"Aspetti giuridici della cooperazione europea nella politica estera", Rivista
di diritto internazionale, Voi. 59 (1976), pp. 468-488.
"La giurisprudenza della Corte comunitaria sulla politica sociale", Politica del
diritto, Voi. 8 (1977), pp. 553-566.
278 G. Gaja
International Commercial Arbitration. The New York Convention (1978, 1st
Suppl. 1979, 2nd Suppl. 1980) [compiled and edited volumes].
"Regolamenti e direttive della Comunit economica europea", in A. Barbera,
F. Bassanini (eds.), I nuovi poteri delle regioni e degli enti locali (1978),
pp. 119-128.
"Sui rapporti del Parlamento europeo con i Parlamenti nazionali nella pro-
spettiva dell'elezione diretta", Comunicazioni e studi, Voi. 15 (1978),
pp. 9-19.
"European Parliament and Foreign Affairs : Political Co-operation Among the
Nine", in A. Cassese (ed.), Parliamentary Control over Foreign Policy.
Legal Essays (\980), pp. 191-205.
"Organizzazione internazionale del lavoro", Enciclopedia del diritto, Vol. 31
(1981), pp. 336-348.
279
CHAPTER I
THE LAW OF TREATIES
1. Jus cogens has been a fascinating subject for students of inter-
national law over the past 20 years. Theoretical difficulties rather
than practical importance appear to be the reason for this interest.
Examples of treaties in conflict with peremptory norms are hard to
find : for instance, Whiteman's Digest of International Law
1
and the
Rpertoire suisse de droit international public
2
include no reference
to any claim that a treaty provision is contrary to jus cogens. The
Rpertoire de la pratique franaise en matire de droit international
public reproduces, after an allegation by a Peruvian delegate at the
Council of the League of Nations in 1933 that a treaty concluded
between Peru and Columbia was "immoral", th intervention by the
French delegate, Mr. Cot, criticizing the alleged invalidity of "im-
moral" treaties
3
. However, the problems relating to peremptory
norms cannot be.viewed solely as one of the academic writer's
favourite exercising grounds. The provisions in the Vienna Conven-
tion on the Law of Treaties concerning peremptory norms are no
doubt one of the principal reasons why many States have so far
refrained from ratifying the Convention
4
. Although all these provi-
sions were adopted by a large majority vote at the Vienna Confer-
ence following a compromise reached at the eleventh hour
5
, some
substantial dissatisfaction remains in many States, including the
two super-powers. The possibility of declaring that a treaty is void
because it is contrary to a peremptory norm appears to some States
as paving ihe way to unjustified challenges of the validity of treaties.
On the other hand, the attribution in Article 66 of jurisdiction on
the International Court of Justice with regard to disputes "concern-
ing the application or the interpretation" of the articles in the
Convention providing that a treaty conflicting with a peremptory
norm is void, constitutes a formidable deterrent to ratification for
States traditionally reluctant to accept the Court's jurisdiction
6
.
The said attitude on the part of many States makes it impossible
to maintain that the provisions in the Convention relating to per-
emptory norms correspond to the existing law on the subject.
The Court's optimistic assertions with regard to provisions in the
280 G. Gaja
Vienna Convention concerning termination of treaties on account of
breach
7
and of a fundamental change in the circumstances
8
could
not be repeated here. Moreover, several aspects of the said provi-
sions as will be shown appear to attempt to innovate, mainly
with the purpose of restricting the operativeness of peremptory
norms. For the success of such an attempt, a large number of rati-
fications would be essential.
2. In order to analyse the role of peremptory norms in the con-
temporary law of treaties, a discussion of the concept of peremptory
norm is necessary. This requires, first of all, a brief review of the
different types of obligations under international law.
The great majority of international norms impose obligations
which exist in specific situations only towards one or more directly
interested States. This applies also to most norms pertaining to
general international law. One can take as an example "the rules
governing the freedom of the seas", although one notorious op-
ponent of the category of customary peremptory norms, Professor
Schwarzenberger, conceded that in the case of a breach of such rules
every State "may have a sufficient legal interest to qualify as an
injured party"
9
. At least some obligations existing under those rules
can be split into as many obligations as there are potentially inter-
ested States directly involved in the different situations. If State A
stops State B's ship on the high seas, this is a breach of the freedom
of the high seas, but only State B's right is infringed
10
.
There are also some norms which create obligations toward States
irrespective of the existence of a direct interest on their part. For
instance, multilateral treaties concerning human rights impose on
each contracting State obligations which exist in any specific situa-
tion towards all the other contracting States. In the Barcelona
Traction case the Court stated, with regard to "general international
law" and to "international instruments of a universal or quasi-uni-
versal character", that
"an essential distinction should be drawn between the obliga-
tions of a State towards the international community as a
whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection ; they are obligations erga omnes
u
. "
Jus Cogens Beyond the Vienna Convention 281
In the quoted passage the Court referred first to the "international
community as a whole" and then to "all States" as the entities to-
wards which an obligation exists. The Court appears to have used
one and the same concept. It would anyway be difficult to imagine
how the international community could exert a right other than
through the action of individual States. The Court gave some
examples of obligations erga omnes, including those imposed by
"rules concerning the basic rights of the human person"
12
.
Only norms which impose obligations of the second type can be
reasonably held to be peremptory. When an obligation exists in
specific situations only towards one or more directly interested
States, there can be no obstacle for the directly interested States to
derogate by treaty from the norm imposing such an obligation,
provided that the treaty is concluded in order to regulate those
situations in which there is no other interested State. With regard
to the other type of obligations, the implementation of any treaty
derogating from the norm would necessarily entail the violation of
the obligation imposed by that norm towards any State which is not
a party to the treaty. Thus, the conclusion of such a treaty is a
matter of concern for the non-contracting States.
This fact does not imply that all the norms imposing obligations
towards States irrespective of the existence of a direct interest on
their part are peremptory norms. The implementation of any treaty
derogating from such norms is wrongful, but the conclusion of the
treaty is not necessarily so. Any action with regard to the validity
or legality of the treaty is a preventive measure which protects the
respect of the obligation, but such an action cannot be taken to be
required by any norm imposing an obligation of the type now being
considered.
3. In legal writings the expression "peremptory norm" is used
with a variety of meanings, also with regard to the effects of the
norm on a treaty. While the majority of authors refer only to norms
invalidating treaties attempting to derogate from them, others con-
sider that a peremptory norm makes such treaties illegal but not
invalid
13
. The use of a different concept usually leads to different
conclusions about which norms should be considered to be peremp-
tory.
As an example of a norm affecting the legality, but not the vali-
dity, of conflicting treaties, one could refer to Article 311, paragraph
6, of the draft convention on the Law of the Sea (informal text),
282
G. Gaja
which intends to impose on the contracting States an obligation not
to be part to any treaty derogating from the "principle relating to
the common heritage of mankind"
14
. Article 103 of the United
Nations Charter provides :
"In the event of a conflict between the obligations of the
Members of the United Nations under the present Charter
and their obligations under any other international agree-
ments, their obligations under the present Charter shall
prevail."
Here also the validity of the conflicting treaty is not in question
1S
.
However, what may be considered to be wrongful under Article 103
of the Charter is the implementation rather than the mere conclu-
sion of a conflicting treaty.
It is intended to consider here only norms which make any con-
flicting treaty void. This corresponds to the nucleus of the concept
of peremptory norm as expressed in the Vienna Convention. Under
Article 53 a peremptory norm is "a norm from which no derogation
is permitted" and which makes any conflicting treaty "void".
The peremptory norm removes the threat of a violation of the
obligations it imposes by invalidating any treaty which, if imple-
mented, would entail such a violation.
Articles 53 and 64 state that treaties conflicting with peremptory
norms are "void". Article 71, paragraph 1, adds:
"In the case of a treaty which is void under Article 53 the
parties shall : (a) eliminate as far as possible the consequences
of any act performed in reliance on any provision which
conflicts with the peremptory norm . . . "
All these articles convey the idea that, irrespective of the attitude
taken by the parties to a treaty conflicting with a peremptory norm,
the treaty is considered to be void and produces no legal effects.
This approach may have prompted the General Assembly in
resolution 34/65 B of 29 November 1979 to declare that the
Camp David agreements "have no validity" - conflict with jus
cogens being the most likely cause for the agreements to be
declared void
16
. On the other hand, Article 65 provides that
whenever there is a "ground for impeaching the validity of a
treaty", a party "must notify the other parties of its claim" and
"the notification shall indicate the measure proposed to be taken
with respect to the treaty and the reasons therefor" (paragraph 1).
This appears to mean that, under the Vienna Convention, the vali-
dity of a treaty can be challenged only by one of the parties to it
17
.
Thus, conflict with a peremptory norm would not make a treaty
void unless one of the parties took some action to this end.
The two approaches are hardly reconcilable. Whatever the solu-
tion under the Vienna Convention, for the purpose of the present
analysis which is not confined to an interpretation of the Con-
vention one can use a concept of peremptory norm wide enough
to encompass both norms which invalidate a treaty irrespective of
the attitude taken by the contracting States and norms which only
grant to one of the contracting States the possibility of invalidating
the treaty.
4. Article 53 of the Vienna Convention contains some further
elements for a definition of the concept of peremptory norm. These
elements also operate as prerequisites for any conflicting treaty to
be considered as void under the Convention. Articles 53 and 64 only
refer to a "peremptory norm of general international law". As a
corollary to this definition, Article 53 states that
"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 per-
mitted and which can be modified only by a subsequent norm
of general international law having the same character".
Thus, according to the Convention, a peremptory norm neces-
sarily operates with regard to all States, and this on the basis of
the norm having been "accepted and recognized" as peremptory
by "the international community of States as a whole". There is
general agreement among interpreters that lack of acceptance or
even opposition on the part of one or a few States is no obstacle to a
norm becoming peremptory
18
. Given the fact that States belonging
to the same political group often share similar views on fundamental
issues, Professor Ago's test that the "essential components" of the
international community should consider the norm to be peremp-
tory may be taken as an apt translation of the standard adopted by
the Convention
19
. If this is so, the test would substantially corres-
pond to the one applicable for ascertaining the existence of a norm
of general international law
20
.
The elements of the concept of peremptory norm now under
284 G. Gaja
consideration call for a few comments. First, the terms "accepted"
and "recognized" are taken from Article 38 of the Statute of the
International Court of Justice
21
and reflect, as that article, a for-
malistic approach to the problem of the sources of law. In so far as
recognition and acceptance can be understood as implying more
than a merely verbal attitude on the part of the States, this criticism
only regards terminology.
Secondly, Article 53 considers that a peremptory norm not only
invalidates a conflicting treaty, but also "can be modified only by
a subsequent norm of general international law having the same
character". This could be understood as a reference to the case in
which a peremptory norm undergoes a substantial change which
effectively turns it into a new norm, while no derogation keeps being
permitted. No objection could be made to such a statement, except
that it may seem to be superfluous. However, it is quite likely that
Article 53 also includes a reference to other types of change, which
may effect the continuing existence of a general norm or of its
peremptory character
22
. Any attempt to consider that peremptory
norms are necessarily entrenched would no doubt significantly res-
trict the concept of peremptory norm. It would also be very hard to
imagine how such entrenchment could effectively operate.
Finally, while many rules of so-called customary law nowadays
apply to large groups of States, but not to all States, the Convention
indicates that peremptory norms necessarily pertain to "general
international law" and apply to the "international community of
States as a whole". No convincing reason has ever been given for
ruling out the possibility of the existence of non-universal, or "re-
gional" peremptory norms
23
. Values prevailing in regional groups
do not necessarily conflict with values operating in a larger frame-
work. There may be norms which acquire a peremptory character
only in a regional context
24
. The greater similarity of values in
States belonging to a particular group could make it easier for a
norm to invalidate treaties concluded by members of the group.
Also in this regard the Vienna Convention appears to use an unjusti-
fiably restricted concept of peremptory norm.
5. One of the principles concerning peremptory norms stated in
the Vienna Convention is that a treaty conflicting with any such
norm at the time when it was concluded is totally void. Article 44,
paragraph 5, declares that "in cases falling under Articles 51, 52
and 53, no separation of the provisions of the treaty is permitted".
The idea embodied in the Convention is that in the presence of a
particularly serious cause of invalidity, the sanction should apply
to the whole treaty
25
. It may be difficult to translate this into an
effective sanction, also because the idea followed in the provision
is questionable, as the parties could make a new treaty incorporating
the severable part which is not conflicting with the peremptory
norm and the new treaty would certainly be valid. The idea seems
particularly unreasonable when the severable part in question tends
to implement an obligation imposed by the same or another peremp-
tory norm
26
. It is true that such an obligation would also exist inde-
pendently from the treaty, but the presence of a treaty provision
seeking to achieve implementation cannot be taken as lacking any
practical significance.
6. Articles 65 to 68 of the Vienna Convention have attempted to
introduce a procedure to be followed with respect to the invalidity
of treaties and other circumstances effecting their operativeness.
The purpose of these provisions is to make it more difficult for the
validity of treaties to be challenged and to encourage the friendly
settlement of disputes on the matter. One practical consequence is
that, under the Convention, a fairly long span of time has to elapse
before an act declaring a treaty to be invalid can be taken
27
. In the
case of a treaty conflicting with a peremptory norm, the nature of
the defect makes it rather incongruous that any act declaring the
treaty to be invalid should be deferred. The Convention certainly
provides no exception for this case, since it establishes the jurisdic-
tion of the International Court of Justice when "no solution has
been reached within a period of 12 months following the date on
which the objection was raised" with regard to the existence of a
conflict with a peremptory norm (Article 66).
Much as discussion at the Vienna Conference centred on the need
raised by a number of States for a judicial guarantee to be introduced
in the Convention alongside the provisions concerning the invalidity
of treaties conflicting with peremptory norms, it would be hard to
maintain that the existence of a judicial remedy is an element of the
concept of a peremptory norm according to the Convention. The
definition in Article 53 contains no reference to such a remedy ;
moreover, given the limited jurisdiction conferred on the Interna-
tional Court of Justice by acceptance of the optional clause or in-
ternational agreements the inclusion of the element of jurisdiction
in the concept of peremptory norm would have meant denying the
286 G. Gaja
existence of any peremptory norm until the Vienna Convention had
been ratified by the "international community of States as a whole".
Beyond the Convention, there is clearly no prospect of the judicial
guarantee ever becoming an element of the concept of peremptory
norm. It would also be unjustified to take a judicial perspective
on peremptory norms, and assume that all those norms that the
Court would be likely to define as peremptory have that charac-
ter
28
.
It may be noted that the existence of a judicial remedy, to which
Western States attached great importance at Vienna, may have lost
some interest for them since the Court's attitude has gradually
changed towards an approach not too dissimilar from some of the
views expressed by the present majority in the General Assem-
bly
29
. On the other hand, for the opposite reason, the reluctance to
accept the Court's jurisdiction on the part of the Socialist States
and some of the Third World States may also disappear
30
.
Meanwhile, the Court has been understandably cautious in defin-
ing certain norms as peremptory
31
. A different attitude could have
discouraged ratifications of the Vienna Convention and therefore
jeopardized the Court's own role with regard to peremptory norms.
In the case concerning United States Diplomatic and Consular
Staff in Tehran the Court circled round the definition of norms on
diplomatic immunity as peremptory. In the order concerning the
request for the indication of provisional measures the Court said
that "there is no more fundamental prerequisite for the conduct
of relations between States than the inviolability of diplomatic en-
voys and embassies" (paragraph 38)
32
and referred to "imperative
obligations" (paragraph 41 )
33
. The judgment stated the "funda-
mental character of the principle of inviolability" of the persons of
diplomatic agents and the premises of diplomatic missions (para-
graph 86 and again paragraph 91)
34
and also asserted the "impera-
tive character of the legal obligations incumbent upon the Iranian
Government" (paragraph 88)
3S
. The Court did not say that some
or all of these obligations are imposed by peremptory norms
36
. No
doubt, such a statement was not necessary, at least with regard to
the validity of any treaty between the parties. However, the use of
the term "peremptory" appears to have been deliberately avoided.
7. It would be of little use, and theoretically questionable, to
assert the existence of a norm of international law which does not
effectively regulate the conduct of States. For some authors, lack
of effectiveness indicates that a customary or a conventional norm
is not fully operative or has lapsed ; for others, a custom or a treaty
are simply ways through which an effective norm may come into
existence
37
.
For ascertaining the existence of an effective norm, mere asser-
tions on the part of governments or State delegates about the exis-
tence of a norm can hardly be accepted as conclusive. State practice
relating to peremptory norms mainly consists of statements made
by State delegates at international conferences or within the Sixth
Committee of the General Assembly. Only some of these statements
can be dismissed as representing the delegates' personal views.
However, the declarations which can be attributed to the respective
governments do not fully indicate these goverments' attitude. Most
statements only concern theoretical cases of treaties conflicting
with norms defined as peremptory, and it is not certain whether in
a concrete case the State would be prepared to take the steps that
may be necessary in order to deprive the treaty of all its effects.
Such steps may be required particularly if one considers that a
peremptory norm makes a treaty void irrespective of any action
taken by one of the contracting States. A merely verbal condemna-
tion of a treaty could then hardly be equated with making the
treaty void.
If one accepts the concept of peremptory norm as defined in the
Vienna Convention, the test of effectiveness may prove very hard
to pass for most asserted norms. Difficulties stem particularly from
the element of universality which characterizes peremptory norms
according to the Convention.
An analysis of the existence of any peremptory norm would
involve a lengthy discussion of substantive issues in the light of State
practice. Here it is possible to take only one asserted norm as an
example and indicate some of the questions one would have to
answer. One can follow the choice made by the International Law
Commission in its commentary on the final draft articles on the Law
of Treaties. The Commission said :
"the law of the Charter concerning the prohibition of the use
of force . . . constitutes a conspicuous example of a rule in
international law having the character of jus cogens
36
".
More recently the Commission stated that "one obligation whose
peremptory character is beyond doubt in all events is the obligation
288 G. Gaja
of a State to refrain from any forcible violation of the territorial
integrity or political independence of another State"
39
. The United
States delegate in the Sixth Committee, Mr. Rosenstock, asserted
in 1976 that the norm embodied in Article 2, paragraph 4, of the
United Nations Charter "is universally recognized as a peremptory
norm of international law binding on all and not subject to deroga-
tion by unilateral declarations or bilateral agreements"
40
. This is also
one of the few norms which were invoked as peremptory by some
States in specific situations in order to declare that some treaties
assumed to be conflicting with it were invalid. As is well known,
in 1964 the delegate of the Republic of Cyprus invoked the said
norm in the Security Council, in order to assert the validity of the
Treaty of Guarantee of 16 August 1960, if it were understood to
provide for a unilateral military right of intervention on the part of
Turkey
41
. More recently, a similar treaty the Treaty of Friendship
between the Soviet Union and Iran of 26 February 1921 which
provided for Soviet conditional right of intervention in Iran, was
terminated by the Iranian Government with regard to the part
concerning the right of intervention
42
. Conflict with a peremptory
norm could have been invoked to this end - although Article 44,
paragraph 5, of the Vienna Convention regarding inseparability of
treaty provisions in the case of conflict with a peremptory norm
had not been respected.
Let us assume that a war of aggression breaks out, the United
Nations security system fails to work and a peace treaty is finally
concluded, giving some advantage to the aggressor
43
. Is the fact
that the United Nations security system fails to work completely
irrelevant when it comes to deciding whether the peace treaty con-
flicts with a peremptory norm? Is it necessary that one of the par-
ties to the treaty invokes the cause for the invalidity of the treaty ?
If neither party does so, which body or States would be likely to
take any steps in order to deprive the treaty f any of its effects?
How would the invalidity of the treaty acquire any practical signi-
ficance?
8. The conclusions of the present analysis can be summarized in
a few lines. First of all, the Vienna Convention adopts a concept of
peremptory norm which is in various ways restrictive. The limited
success of the Vienna Convention with regard to its provisions con-
cerning conflict of treaties with peremptory norms suggests that a
wider concept of peremptory norm should be used and that one
should look also for norms corresponding to the wider concept. One
cannot rule out the possibility that the very existence of Articles
53 and 64 of the Vienna Convention may make it more difficult
for those peremptory norms to come into existence: this particu-
larly in view of the provision in the Vienna Convention - Article 42,
paragraph 1 to the purpose that "the validity of a treaty . .. may
be impeached only through the application of the present Conven-
tion". The same can be said for the judicial guarantee in the Vienna
Convention : while this guarantee does not constitute an element
of the concept of peremptory norm either under the Vienna Con-
vention or beyond it, some States may object to the definition of
a norm as peremptory when there is no such guarantee. The recent
discussion of a proposal by the Government of Chile at the Third
Law of the Sea Conference concerning the definition of "the pro-
vision relating to the common heritage of mankind" as peremp-
tory
44
proves an apt example of this attitude.
Secondly, the effectiveness of peremptory norms is particularly
hard to establish if one accepts the concept of peremptory norm
defined by the Vienna Convention, but is also difficult if one uses
a wider concept. This is no surprise. As we have seen, peremptory
norms impose obligations existing toward States irrespective of
any specific interest on their part : with regard to many asserted
peremptory norms, in most specific situations there is no State
which has any direct interest in the fulfilment of obligations. States
rarely take to heart the fulfilment of international obligations when
none of their direct interests is involved.
The latter remarks may seem too pessimistic, in relation to cur-
rent assertions of the existence of peremptory norms designed to
protect fundamental interests in international society. I believe
that an international lawyer's concern for those interests should
rather show itself in exposing the reality as it is and the need for
improvement if possible, also in suggesting some ways to this end.
290
CHAPTER II
THE LAW OF STATE RESPONSIBILITY
9. While literature on the conflict of treaties with peremptory
norms is plentiful, little has as yet been written about the impact
of peremptory norms in other areas of international law. Only
since 1976, when the problem was first considered by the Interna-
tional Law Commission, have the relations between peremptory
norms and the law of State responsibility become the object of
discussion although more within United Nations organs than in
academic writings
45
.
The International Law Commission's draft articles on State res-
ponsibility do not have a consistent approach with regard to the
effects of peremptory norms in this area. The first reference to
peremptory norms is made in Article 18, paragraph 2 ; a similar refer-
ence is made in Article 33, paragraph 2 (a). Article 29, paragraph 2,
provides a definition matching the one contained in Article 53 of
the Vienna Convention on the Law of Treaties. Article 19, which
concerns international crimes, uses a concept which may to some
extent be identified with that of a peremptory norm, but does not
refer to such norms. In some other articles the effects of peremptory
norms are not considered, or at least they are not fully stated.
Peremptory norms may become relevant in the study of State
responsibility in three different ways. First of all, when a new per-
emptory norm comes into existence, this may have some conse-
quences with regard to the breach of obligations imposed by a pre-
viously operating norm, if this is in conflict with the new norm.
Secondly, the circumstance that an obligation is imposed by a
peremptory norm may affect the possibility for a State of taking
action which would ordinarily be allowed, for reasons such as the
injured State's consent, the state of necessity or the purpose of
taking a counter-measure to a wrongful act. Finally, the breach of
an obligation imposed by a peremptory norm may entail some
consequences which are more serious than those attached to an
ordinary wrongful act.
While the International Law Commission expressly refers to a
concept of peremptory norms corresponding to the definition in
Article 53 of the Vienna Convention, the following analysis will also
take into account the wider concept accepted in the previous chap-
ter. Since both concepts imply that a treaty conflicting with a
peremptory norm is invalid, the conclusions that one may reach
with regard to the implications of a norm which is considered to
be peremptory under the Vienna Convention generally coincide
with those that are attainable if one adopts the wider concept.
10. Once a treaty is terminated, any further obligation to perform
the treaty lapses, but the consequences of its non-fulfilment are not
thereby eliminated. As the International Court of Justice stated in
the Northern Cameroon case,
"if during the life of the Trusteeship the Trustee was respon-
sible for some act in violation of the terms of the Trusteeship
Agreement which resulted in damage to another member of
the United Nations or to one of its nationals, a claim for
reparation would not be liquidated by the termination of the
Trust
46
".
When Article 71, paragraph 2 (a), of the Vienna Convention states
that termination of a treaty because it conflicts with a new peremp-
tory norm "releases the parties from any obligation further to per-
form the treaty", it uses the same words as Article 70, paragraph
1 (a), which considers the consequences of the termination of a
treaty in general, and thus clearly intends to envisage the same ef-
fects as those usually applicable in the case of termination of a
treaty. Letter (b) of the same paragraph 2 specifies that such effects
do not impinge in principle on rights and obligations that have arisen
when the treaty was in force : termination of the treaty
"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
situations may thereafter be maintained only to the extent
that their maintenance is not in itself in conflict with the new
peremptory norms of general international law".
The proviso is the only difference with regard to the consequences
generally applicable in the case of termination of treaties under
Article 70
47
. The implication of the proviso seems to be that, while
damages for breach of the treaty could still be due, other forms
of reparation are no longer applicable if they involve an action or
292 G. Gaja
omission which is contrary to the new peremptory norm. There
may be some uncertainty about the precise meaning of Article 71,
paragraph 2, but it seems reasonable to infer that according to the
Vienna Convention peremptory norms never possess a retroactive
effect
48
.
The International Law Commission draft articles on State res-
ponsibility also presuppose that peremptory norms do not have any
such effect
49
. However, they consider that the emergence of a new
peremptory norm may justify an act which was wrongful at the
time when it was made. Article 18, paragraph 2, provides that
"an act of the State which, at the time when it was performed,
was not in conformity with what was required of it by an inter-
national obligation in force for that State, ceases to be considered
an international wrongful act if, subsequently, such an act has
become compulsory by virtue of a peremptory norm of general
international law".
The idea underlying this provision is to give an advantage to those
States which fight existing rules to the point of violating obligations
imposed by them
s0
, thus contributing successfully to the emergence
of new peremptory norms. The special rapporteur gave as an exam-
ple that of
"a State, which, being required under a treaty in force to de-
liver arms to another State, had refused to fulfil its obligation,
knowing that the arms were to be used for the perpetration
of genocide or aggression, and had done so before the norms
of jus cogens proscribing genocide and aggression had been
adopted
51
".
This example was taken over by the International Law Commission
in its commentary
52
. The special rapporteur and the International
Law Commission also referred to the arbitral decision in the Enter-
prize case, in which Umpire Bates gave an award against Great
Britain and in favour of the American owners of some slaves who
had been freed in 1835 while on board a United States brig which
had been forced by weather conditions to put into Hamilton, in
the Island of Bermuda. According to the Umpire, slavery "could
not then be contrary to the law of nations" and thus "the conduct
of the authorities at Bermuda was a violation of the law of na-
tions"
53
. The International Law Commission said that, if
"by one of those chances which are not unknown in history,
it should fall to an arbitral tribunal of today to judge the
former actions of the British authorities condemned by Bates,
it seems inconceivable that the tribunal would still regard those
actions as internationally wrongful acts entailing responsi-
bility
54
".
According to the delegates of Great Britain, Japan and the United
States in the Sixth Committee of the General Assembly, a provision
corresponding to Article 18, paragraph 2, may contribute to the
violation of treaty obligations
ss
. Politically, one may take the op-
posite view that it is worth running this risk in order to encourage
the emergence of peremptory norms. This issue need not be debated
here. From a legal point of view, it is important to note that the
effects given to peremptory norms under Article 18, paragraph 2,
go beyond those provided for in Article 71 of the Vienna Conven-
tion
56
and are not implied by the concept of peremptory norm
either as such a concept is defined in the Vienna Convention
57
or
as it has been developed in the previous chapter. Although it may
be easier for a new norm protecting a fundamental interest of
international society than for any other norm to justify retroactively
an action or an omission which was in breach of a previously existing
obligation, not all the peremptory norms should necessarily be con-
sidered as having that effect, nor should all the norms that produce
such an effect be defined as peremptory. Looking beyond the
Vienna Convention, one cannot exclude the possibility that a
peremptory norm may produce some further retroactive effects.
It would depend on each norm to determine how far rights and
obligations that have previously arisen are affected
58
.
It seems in any case reasonable that a peremptory norm has full
effect from the time it comes into existence in justifying an act
conforming with it, irrespective of the completion of the procedure
established by- the Vienna Convention for terminating any treaty
conflicting with the peremptory norm.
11. Let us now consider the cases in which the existence of a
peremptory norm prevents a State from taking action which would
be justified in the presence of obligations imposed by other types
of norms. The most important case to be discussed in this context
is that of the injured State's consent. Under ordinary circumstances,
consent given in advance rules out the wrongfulness of any action
294 G. Gaja
taken by another State within the limits of such consent. This princi-
ple is stated in Article 29, paragraph 1, of the International Law
Commission draft articles.
Paragraph 2 of the same article excludes consent from justifying
the violation of a peremptory norm : "Paragraph 1 does not apply
if the obligation arises out of a peremptory norm of general inter-
national law."
The special rapporteur
59
and later the International Law Commis-
sion
60
said that they did not know of any casein which an assertion
had been clearly made that consent did not justify a wrongful act
because of the existence of a peremptory norm. They referred to
some indications which can be drawn from practice relating to inter-
ventions in support of unpopular governments in the context of the
respect of independence of sovereign States and the principle of
self-determination. A present example of such an attitude is reso-
lution ES-6/2, adopted by the General Assembly on 14 January
1980 with regard to the Soviet intervention in Afghanistan. The
General Assembly asserted that
"respect for the sovereignty, territorial integrity and political
independence of every State is a fundamental principle of the
Charter of the United Nations, any violation of which on any
pretext whatsoever is contrary to its aims and purposes".
The word "pretext" may be taken as a reference also to the consent
supposedly given by the Government of Afghanistan
61
.
Is this a consequence implied by the concept of peremptory
norms as developed in the context of the law of treaties?
Peremptory norms are comprised in the category of norms impos-
ing obligations towards all States also in specific situations. The
existence of an obligation of this type rules out the possibility that
consent given by one of the injured States - albeit the State more
directly and specifically concerned may justify a breach of the
obligation. If, for example, a State gives its consent for a norm
protecting human rights to be violated with regard to one of its
nationals, the obligation to respect the same rights would still exist
towards other States - towards all the States if the norm pertains
to general international law. In such cases, consent could fully jus-
tify the action or omission in question only in the highly unlikely
hypothesis of all the States giving their consent.
The question remains whether consent could then justify an
action or omission in the relations between the consenting State and
the State violating the obligation
62
. In other words, in the case of
a norm imposing an obligation towards all States also in specific
situations, would the State violating the obligation commit an
internationally wrongful act also with regard to the State which
expressed its consent ?
An affirmative answer cannot be based on the mere fact that
the obligation exists towards all States. In order to give an affirma-
tive answer one must look for rules that require action, or omission,
also in the relations between States seeking to derogate from the
norm.
The special rapporteur and the International Law Commission
took the view that the injured State's consent necessarily leads to
an agreement concerning a specific action oromission
63
. One could
question the correctness of such a view, because consent could also
operate as a unilateral act. However, the rules concerning the vali-
dity of unilateral acts may have to be drawn by analogy from the
norms regarding the validity of treaties
64
. The need to remove the
cause of a possible breach of an obligation imposed by a peremptory
norm appears to be applicable in the same way to treaties and to
unilateral acts.
Whether one considers the injured State's consent as an agreement
or as a unilateral act, the question dealt with in the draft articles is
not that of the validity of such an agreement or act. The question
is rather that of State responsibility for an action or omission which
results in a breach of an obligation
65
. Under the Vienna Convention,
the fact that a treaty conflicts with a peremptory norm does not
instantly deprive the same treaty of its effects, although the parties
are under an obligation "to eliminate as far as possible the conse-
quences" of any act performed in reliance on any provision which
conflicts with the peremptory norm of general international law"
(Article 71, paragraph 1 (a)). Looking beyond the Vienna Conven-
tion, it seems reasonable that if an agreement or a unilateral act is
void because it attempts to justify the violation of an obligation
imposed by a peremptory norm, the same violation cannot be jus-
tified. It would be hard to understand why an action or omission
should cease to be wrongful merely because the injured State con-
sented to it, when such consent is declared to be invalid precisely
because it may lead to a wrongful act.
The fact that an act is considered to be wrongful also in the
296 G. Gaja
relations between the injuring State and the State specifically in-
jured has little practical meaning so long as the latter State does
not put forward any claim. In order to give the provision in the
draft articles a greater significance one would also have to assume
that no waiver to such a claim is admissible.
12. Although there is no specific reference to peremptory norms
in the relevant provision of the draft articles, some importance
should be given to peremptory norms also with regard to distress.
Article 32 considers the case of a State breaching an international
obligation when "that State had no other means, in a situation of
extreme distress, of saving his life or that of persons entrusted to
his care". Paragraph 2 states that this does not apply "if the conduct
in question was likely to create a comparable or greater peril".
The International Law Commission's commentary gave as an
example of distress the British contention that naval vessels patrol-
ling the waters off the Icelandic coast justifiably entered Iceland's
territorial waters on 10-11 December 1975 in search of "shelter
from severe weather, as they have the right to do under customary
international law"
66
.
In weighing up the different dangers, it would seem reasonable
to take into account the basic values in international society. For
ascertaining such values, peremptory norms give an important
indication, since it is inherent in the concept of a peremptory norm
that the violation of any obligation it imposes is the cause of
special concern. Thus, the fact that an obligation is imposed by a
peremptory norm should make it harder for a State to invoke dis-
tress in order to justify its violation. On the other hand, the danger
to the life of people should be given greater value if it is protected
by peremptory norms.
A similar line of thought underlies part of Article 33, which con-
cerns the state of necessity. This may be invoked for justifying the
breach of an international obligation if (a) "the act was the only
means of safeguarding an essential interest of the State against a
grave and imminent peril" and (b) "the act did not seriously impair
an essential interest of the State towards which the obligation
existed". Paragraph 2 (a) excludes "in any case" the possibility of
invoking the state of necessity "if the international obligation with
which the act of the State is not in conformity arises out of a per-
emptory norm of general international law"
67
.
From the text of Article 33 it clearly appears that an interest
of a State can be considered as essential even if it is not protected
by a peremptory norm. On the other hand, although Article 33
seeks to prevent any justification of the breach of an obligation
imposed by a peremptory norm, it does not state that an interest
protected by such a norm is always essential. The provision could
be more easily read as taking an individualistic approach to States'
interests. Given the importance of peremptory norms, pre-eminence
should be given to interests protected by such norms also for the
sake of justifying the breach of an international obligation.
13. There is no express reference to peremptory norms in the
provision concerning the admissibility of counter-measures in res-
pect of a wrongful act. Article 30 is framed in very general terms,
and simply refers to "international law" for testing the legality of
counter-measures. Arguably, one of the cases in which international
law cannot allow counter-measures for example, reprisal not
involving the use of force is when the obligation which is violated
operates in specific cases towards all the States : the rights of inno-
cent States would then be necessarily infringed. In the words of the
International Law Commission's commentary,
"the legitimate application of a sanction against a given State
can in no event constitute per se a circumstance precluding
the wrongfulness of an infringement of a subjective interna-
tional right of a third State against which no action was jus-
tified
68
".
Since a peremptory norm always imposes obligations existing in
specific circumstances towards several States or all the States, no
counter-measure can be taken if it involves the breach of an obli-
gation under a peremptory norm. The action or the omission would
be wrongful also in the relationship between the State taking the
counter-measure and the State against which such measure is
directed. It would be illogical to consider that a treaty conflicting
with a peremptory norm is void and at the same time admit that
the breach of an obligation imposed by a peremptory norm is jus-
tified only because another State had previously violated an inter-
national obligation. The same applies when the previous violation
also concerns an obligation imposed by a peremptory norm ; the
very existence of such a category of norms implies that there is a
general interest in international society that they should be respec-
ted as much as possible
69
.
298 G. Gaja
Conversely, practice relating to the admissibility of counter-
measures may be significant in order to ascertain the existence of
peremptory norms. When the breach of an obligation is allowed as
a counter-measure to a previous infringement, the obligation cannot
be said to be imposed by a peremptory norm.
14. One of the most important, and indeed controversial, aspects
of the International Law Commission's draft articles on State respon-
sibility is represented by the idea that there exists a special category
of wrongful acts which are particularly serious and call for heavier
consequences for the wrong-doing State. Article 53 of the Vienna
Convention on the Law of Treaties was criticized because it provided
a sanction the invalidity of the treaty without specifying when
this applied
70
. Article 19 of the International Law Commission's
draft gives further indications about the facts to which the sanction
applies but does not express the sanction: in Professor Marek's
nightmare, the "extra horrors the International Law Commission
may keep in store for the future culprit"
71
.
While it would be inappropriate to attempt here a discussion
about the existence of wrongful acts which could be defined as
"international crimes", it may be useful to make a few references
to some instances of recent practice in which particularly severe
consequences have been asserted with regard to certain wrongful
acts. In the case concerning United States Diplomatic and Consular
Staff in Tehran, the Court asserted the "more serious" character
of the "attacks on the inviolability" of diplomatic premises and
staff because of the decision on the part of the Iranian authorities
to allow that occupation of the premises and detention of the
staff should continue
72
. However, no specific indication of such
consequences is included in the judgment. The only reference
to "crimes" in the judgment concerns the "alleged criminal acti-
vities of the United States in Iran"
73
. As is well known, the Court
declared that it had no jurisdiction to decide over this aspect of
the dispute in the absence of a counter-claim by Iran ; on the other
hand, after the Algiers agreements the United States claim for re-
paration was withdrawn
74
. The violation of diplomatic premises
and the detention of the staff in Tehran did not only provoke
counter-measures on the part of the United States Government.
Some more limited action was also taken by the States which were
members of the European Community
75
and by some other States,
such as Australia, Canada, Japan and Norway
76
.
A similar approach, involving action on the part of States other
than the more directly injured one, appears to be taken by the first
Protocol of 1977 additional to the Geneva Conventions of 12
August 1949 for the protection of war victims. Under the Protocol,
"grave breaches" of the Convention and the Protocol
77
also cover
acts which may be committed by States - for instance, "makingnon-
defended locali ties and demilitarized zones the object of attack" (Arti-
cle 85, paragraph 3 (d)). Generally, repression of "grave breaches"
only affects individuals. However Article 89 provides that
"in situations of serious violations of the Conventions or of
this Protocol, the High Contracting Parties undertake to act,
jointly or individually, in co-operation with the United Nations
and in conformity with the United Nations Charter".
Hence States which are parties to the Conventions and the Protocol
may take action against the offending States primarily by means
of an organized sanction even if they are not the specifically
injured States.
The list of international crimes given in Article 19 is not intended
to be exhaustive. It covers breaches of obligations which according
to several State delegates and authors are imposed by peremptory
norms. The list runs as follows :
"(a) a serious breach of an international obligation of es-
sential importance for the maintenance of international peace
and security, such as that prohibiting aggression ;
(b) a serious breach of an international obligation of essen-
tial importance for safeguarding the right of self-determination
of peoples, such as that prohibiting the establishment or main-
tenance by force of colonial domination ;
(c) a serious breach on a widespread scale of an internatio-
nal obligation of essential importance for safeguarding the
human being, such as those prohibiting slavery, genocide and
apartheid ;
(d) a serious breach of an international obligation of essen-
tial importance for the safeguarding and preservation of the
human environment, such as those prohibiting massive pollu-
tion of the atmosphere or of the seas."
There is some difference of opinion about whether a breach of
an obligation imposed by a peremptory norm always implies an
300 G. Gaja
international crime. Some members of the International Law Com-
mission including the special rapporteur favoured the view that not
all the breaches of obligations under peremptory norms constitute
international crimes
78
. This was reflected in the International Law
Commission's commentary
79
.
However, the International Law Commission's commentary also
argued in favour of the breach of an obligation under a peremptory
norm being an international crime from the circumstance that
"it would seem contradictory if, in the case of a breach of a
rule so important to the entire international community as to
be described as a 'peremptory' rule, the relationship of res-
ponsibility was established solely between the State which
committed the breach and the State directly injured by it
80
".
One could object that this does not apply only to peremptory
norms, but also to any other norm imposing obligations existing in
specific circumstances towards all States. Moreover, the fact that
responsibility is not established only in the relationship between the
injuring State and the more directly affected State does not seem
to be an element sufficient for asserting the existence of an inter-
national crime
81
.
Article 19, paragraph 2, defines the international crime as
"an internationally wrongful act which results from the breach
by a State of an international obligation so essential for the
protection of fundamental interests of the international com-
munity that its breach is recognized as a crime by that com-
munity as a whole".
There obviously are some elements in common between this defi-
nition and that of peremptory norms in Article 53 of the Vienna
Convention and Article 29, paragraph 2, of the draft articles on
State responsibility. However, the very presence in the same draft
articles of a definition of peremptory norm shows that some dis-
tinction was intended.
Both definitions give weight to a recognition by "the internatio-
nal community" "as a whole". However, in one case recognition
has as an object "a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general
international law having the same character", in the other the fact
that the breach of the obligation constitutes a crime.
Both peremptory norms and norms which concern international
crimes seek to protect "fundamental interests of the international
community", although this expression may be found only in
Article 19, paragraph 2. They do so in a different way, by applying
different sanctions to the deviating States. One cannot assume that
the invalidity of a treaty conflicting with a peremptory norm
necessarily implies that the breach of an obligation imposed by the
same norm constitutes an international crime, or has anyway more
severe consequences than any other wrongful act. On the other
hand, it would be reasonable to look for acts entailing such conse-
quences in particular if they go beyond the relations between the
more directly concerned States in the area covered by peremptory
norms.
Once an act is defined as a crime and some particularly severe
legal consequences are attached to it, the legality and also the
validity of an agreement to commit such a crime should be reason-
ably denied, since an assertion of the validity of the agreement
would make it easier for the crime to be committed. Hence, if the
list of acts in Article 19, paragraph 3, became widely recognized
as a list of international crimes, one could invoke this practice as
an important element for assuming the peremptory character of
the norms imposing the corresponding obligations.
302
NOTES
1. Digest of International Law (M.M. Whiteman, ed.), 15 vols. ( 1963-1973).
2. Rpertoire suisse de droit international public. Documentation concer-
nant la pratique de la Confdration en matire de droit international public
1914-1939 (P. Guggenheim, gen. ed.), 4 vols. (1975).
3. Rpertoire de la pratique franaise en matire de droit international pu-
blic (A. Ch. Kiss, ed.), Vol. I (1962), p. 99.
4. Only about 40 States are parties to the Convention, which entered into
force on 27 January 1980.
5. Articles 53 and 64 had been adopted by substantial majorities as Articles
50 and 6187 votes in favour, 8 against and 12 abstentions for the former,
84 votes in favour, 8 against and 16 abstentions for the latter but the ques-
tion of treaties conflicting with peremptory norms remained at the centre of
the discussion pending the adoption of a provision concerning the compulsory
settlement of disputes. This came as part of a compromise solution. The
new provision was adopted by 61 votes to 20, with 26 abstentions. The three
votings are recorded in United Nations Conference on the Law of Treaties,
Second Session, Vienna, 9 April-22 May 1969, Official Records, pp. 107, 125
and 193.
6. This point was stressed particularly by J. Nisot, "Le 'jus .cogens' et la
Convention de Vienne sur les traits", Revue gnrale de droit international
public, Vol. 76 (1972), pp. 692 ff., at pp. 696-697. However, as noted in para-
graph 6, reluctance to accept the Court's jurisdiction appears to be receding
since the time when the Vienna Convention was adopted.
7. In its advisory opinion on Namibia the Court said :
"The rules laid down by the Vienna Convention on the Law of Trea-
ties concerning termination of a treaty relationship on account of breach
(adopted without a dissenting vote) may in many respects be considered
as a codification of existing customary law on the subject." (ICJ Re-
ports 1971, p. 47.)
8. In the quasi-unanimous judgment in the Fisheries Jurisdiction case be-
tween the United Kingdom and Iceland the Court asserted :
"International law admits that a fundamental change in the circums-
tances which determined the parties to accept a treaty, if it has resulted
in a radical transformation of the extent of the obligations imposed by
it, may, under certain conditions, afford the party affected a ground for
invoking the termination or suspension of the treaty. This principle, and
the conditions and exceptions to which it is subject, have been embodied
in Article 62 of the Vienna Convention on the Law of Treaties, which
may in many respects be considered as a codification of existing custo-
mary law on the subject of the termination of a treaty relationship on
account of change of circumstances." (.ICJReports 1973, p.18.)
In the same judgment the Court also said :
"There can be little doubt, as is implied in the Charter of the United
Nations and recognized in Article 52 of the Vienna Convention on the
Law of Treaties, that under contemporary international law an agreement
concluded under the threat or use of force is void." (Ibid., p. 14.)
9. G. Schwarzenberger, "International Jus cogensl", Texas Law Review,
Vol. 43 (1964-1965), pp. 455 ff., at p. 463.
10. On the contrary, the wilful obstruction of an international strait may
be taken as an example of the breach of a rule concerning the freedom of the
seas which affects all States.
11. ICJReports 1970, p. 32.
12. The passage quoted above in the text continues as follows :
"Such obligations derive, for example, in contemporary international
law, from the outlawing of acts of aggression, and of genocide, as also
from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination."
The Court did not necessarily imply that the Court's jurisdiction on the basis
of the optional clause also covers claims in which the claimant State does not
assert that one of its specific interests is affected. For a discussion of related
issues see I. Seidl-Hohenveldern, "Actio popularis im Vlkerrecht?", Comuni-
cazioni e studi, Vol. 14 (1975), pp. 803 ff.
13. D. Anzilotti, Corso di diritto internazionale, 4th ed. (1955), pp. 90-92,
used a concept of jus cogens comprising both norms that cause the invalidity
of conflicting treaties and norms which only consider conflicting treaties to
be wrongful. G. Morelli, "A proposito di norme internazionali cogenti", Rivista
di diritto internazionale, Voi. 51 (1968), pp. 108 ff., at pp. 115-116, held that
in the case of a norm with regard to which a conflicting treaty is wrongful, but
not invalid, the use of the term "peremptory" may be correct but does not
correspond to the "technical" meaning of the word. According to G. Barile,
Lezioni di diritto internazionale (1977), pp. 106-110, a treaty conflicting with
jus cogens represents a wrongful act towards all the States which are members
of the international community, whereas the validity of the same treaty is
not affected.
14. The full text of the paragraph reads as follows:
"The States Parties to this Convention agree that there can be no
amendments to the basic principle relating to the common heritage of
mankind set forth in Article 136 and that they shall not be party to
any agreement in derogation thereof."
The informal text of the draft convention may be found in International Legal
Materials, Vol. 19 (1980), pp. 1131 ff.
15. The contrary opinion was sometimes voiced. Lord McNair, The Law
of Treaties (1961), p. 218, maintained that as a consequence of Article 103
United Nations members "cannot contract valid obligations which conflict
with those contained in the Charter" the reason being "a limitation of their
treaty-making capacity".
16. No cause of invalidity is explicitly stated in the resolution. In the pre-
ceding discussion a variety of reasons was suggested. The delegates of Bahrain,
Mr. Al Saffar (A/34/PV81, p. 87) and of Kuwait, Mr. El-Jeaan (A/34/PV81,
p. 32) gave as a reason the absence of "participation of the PLO". The latter
delegate, as well as the delegate of Saudi Arabia, Mr. Allagany (A/34/PV83,
p. 50) considered the agreements to be void because they were "concluded
outside the framework of the United Nations". The delegate of Qatar, Mr.
Jamal, indicated as the cause of invalidity the "breach of the United Nations
Charter and resolutions" (A/34/PV79, p. 91). A delegate of Iraq, Mr. Al-Ali
referred to Articles 53 and 34 of the Vienna Convention. He claimed that the
agreements "were imposed by one of the parties by force" and were "also
contrary to the binding rules of international law, such as those prohibiting
the recognition of a status quo established by force and the recognition of
agreements and treaties signed under duress" (A/34/PV77, p. 57). Another
delegate of Iraq, Mr. Al Zahawie, referred to "Articles 34, 43, 49, 52 and
53" of the Vienna Convention (A/34/PV83, p. 45). Some delegates of States
which voted against the resolution maintained that the General Assembly
304 G. Gaja
should not declare any treaty to be invalid. See the interventions by the dele-
gates of Che, Mr. Diez (A/34/PV83, p. 67), of Lesotho, Mr. Thamae (ibid.,
p. 71), of Uruguay, Mr. Camps (ibid., pp. 71-72) and of Costa Rica, Mr. Piza
Escalante (ibid., p. 73). Mr. Thamae said : "my Government does not wish to
make any determination as regards the legal validity of the Camp David accords
in relation to any of the aspects covered therein, as we consider this to be a
matter that concerns the Governments of Egypt and Israel".
17. Under Article 2, paragraph 1 (g), of the Convention, "'party' means
a State which has consented to be bound by the treaty and for which the treaty
is in force". Ph. Cahier, "Les caractristiques de la nullit en droit international
et tout particulirement dans la Convention de Vienne de 1969 sur le droit des
traits", Revue gnrale de droit international public, Vol. 76 ( 1972), pp. 645
ff., at p. 688, noted that "la distinction entre nullit absolue et nullit relative
aurait d avoir pour consquence que, dans le cas de violence ou d'infraction
aux rgles imperatives, tout Etat pourrait faire valoir la nullit. Cela pourtant
ne semble pas rsulter clairement des articles 65 et 66 relatifs la procdure
suivre en cas de diffrends." The view that also a State which is not a party
to the treaty can challenge the validity of the treaty under the Vienna Con-
vention was expressed by A.-J. Leonetti, "Interprtation des traits et rgles
imperatives du droit international gnral (jus cogens)", sterreichische Zeit-
schrift fr ffentliches Recht, Vol. 24 (1973), pp. 91 ff., at p. 107. The same
opinion had been voiced with regard to the ILC draft by U. Scheuner, "Con-
flict of Treaty Provisions with a Peremptory Norm of General International
Law and Its Consequences", Zeitschrift fr auslndisches ffentliches Recht
und Vlkerrecht, Vol. 27 (1967), pp. 520 ff. at p. 524. According to P. Zie-
cardi, "Il contributo della Convenzione di Vienna sul diritto dei trattati alla
determinazione del diritto applicabile dalla Corte internazionale di giustizia",
,Communicazioni e studi, Voi. 14(1975),pp. 1043 ff., atp. 1082, the invalidity
of a treaty can be invoked before the Court by a State which is not a party
to the treaty when the claim is based on a situation created through the im-
plementation of the same treaty. The prevailing view is that under the Con-
vention only a State which is a party to the treaty can invoke the conflict be-
tween the treaty and a peremptory norm in order to challenge its validity. See
I. Diaconu, Contribution une tude sur les normes imperatives en droit inter-
national (jus cogens) (1971), pp. 134 ff. ; G. Morelli, "Aspetti processuali della
invalidit dei trattati", Rivista di diritto internazionale, Voi. 57(1974), pp. 5 ff.,
at pp. 9 and 15 ; E. P. Nicoloudis, La nullit de jus cogens et le dveloppement
contemporain du droit international public (1974), pp. 92, 113 and 163-165 ;
J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties. A
Critical Appraisal (1974), pp. 125 ff. and 187; Ch. L. Rosakis, The Concept
of Jus Cogens in the Law of Treaties (1976), pp. 115 ff.; N. Ronzitti, "La
disciplina dello jus cogens nella Convenzione di Vienna sul diritto dei trattati",
Comunicazioni e studi, Voi. 15(1978), pp. 241 ff., at pp. 272-273.
18. The more recent discussion of this point is by N. Ronzitti, op. cit.,
supra, note 17, pp. 255-256.
19. R. Ago, "Droit des traits la lumire de la Convention de Vienne.
Introduction", Recueil des cours, Vol. 134 (1971-III), pp. 297 ff., at p. 323.
Similarly F. Capotorti, "L'extinction et la suspension des traits", ibid.,
pp. 417ff., atp. 532,wrote: "l'accord d'un grand nombre d'Etats appartenant
des systmes juridiques, politiques et sociaux diffrents est ncessaire".
V. Paul, "The LegalConsequencesofConflictbetweenaTreatyandanlmperative
Norm of General International Law (Jus Cogens)", sterreichische Zeitschrift
fr ffentliches Recht, Vol. 21 (1971), pp. 19 ff., et p. 32, indicated the need
for "universality or, better to say, almost universality". M. K. Yasseen, "R-
flexions sur la dtermination du 'jus cogens'", L'laboration du droit interna-
tional public. Colloque de Toulouse (1975), pp. 204 ff., at p. 207, wrote that
the "appui le plus large, celui de la quasi-totalit de la communaut des Etats"
was required. A.-J. Leonetti, op. cit., supra, note 17, p. 100, advocated a more
stringent test, by maintaining that only norms "cres ou reconnues par tous
les Etats" could be termed as peremptory.
20. For this view see especially P. Reuter, Introduction au droit des traits
(1972), pp. 139-140. The test for assessing the peremptory character of a
norm under the Convention was considered to be more lenient by a few
authors. See N. G. Onuf and R. K. Birney, "Peremptory Norms of International
Law: Their Source, Function and Future", Journal of International Law and
Policy, Vol. 4 (1974), pp. 187 ff., at p. 194;M. Akehurst, "The Hierarchy of
the Sources in International Law", British Year Book of International Law,
Vol. 47 (1974-1975), pp. 273 ff. at p. 285; W. T. Gangl, "The Jus Cogens
Dimension of Nuclear Technology", Cornell International Law Journal, Vol.
13 (1980), pp. 63 ff., at pp. 77 and 81-82.
21. In Article 38, paragraph 1, international custom is considered "as evi-
dence of a general practice accepted as law", while treaties are viewed as "es-
tablishing rules expressly recognized by the contesting States".
22. According to M. Akehurst, op. cit., supra, note 20, p. 285, nt. 5, "the
final relative clause in Article 53 of the Vienna Convention on the law of
Treaties is badly drafted, because it implies that a rule of jus cogens can be
replaced only by a rule of jus cogens and not by a rule of jus dispositivum". A
similar opinion had been expressed with regard to the ILC draft by S. A. Rie-
senfeld, "Jus Dispositivum and Jus Cogens in International Law: in the Light
of a Recent Decision of the German Supreme Constitutional Court", American
Journal of International Law, Vol. 60 (1966), pp. 511 ff., at pp. 514-515,
and by M. Virally, "Rflexions sur le 'jus cogens'", Annuaire franais de droit
international, Vol. 12 (1966), pp. 5 ff., at p. 18, nt. 13. For a critical analysis
of this aspect of Article 53 of the Convention see especially Ch. L. Rozakis,
op. cit., supra, note 17, pp. 88-94.
23. M. Virally, op. cit., supra, note 22, p. 14, remarked that the hypothesis
of a regional jus cogens "n'est pas impossible, mais elle n'a pas videmment
tre reconnue et mentionne par le droit international gnral" - hence it
was ignored by the ILC. Similarly F. Domb, "Jus Cogens and Human Rights",
Israel Yearbook on Human Rights, Vol. 6 (1976), pp. 104 ff., at p. 110,
noted : "regional jus cogens may possibly emerge in the future, but it will be out-
side the scope of Article 53". A few authors maintained that there are regional
peremptory norms. See E. Suy, "The Concept of Jus Cogens in Public Inter-
national Law", Conference on International Law. Lagonissi (Greece), April
3-8, 1966. Papers and Proceedings. II. The Concept of Jus Cogens in Interna-
tional Law (1967), pp. 17 ff., at p. 71 ; the intervention by B. Boutros-Ghali,
ibid., p. 107; J. Sztucki, op. cit., supra, note 17,pp. 107-108; the intervention
by G. Tnkids at the colloquium held at Toulouse, op. cit., supra, note 19,
p. 212 ; S. Sur, in H. Thierry, J. Combacau, S. Sur, Ch. Valle, Droit interna-
tional public, 3rd ed, (1981), pp. 77-78.
24. In order to ascertain the existence of a peremptory norm in a regional
context, only the attitude of the States belonging to the region is decisive.
One would have to consider whether those States intend to contribute to the
formation of a peremptory norm applying on a regional scale or only to the
building up of a norm affecting all States.
25. Ph. Cahier, op. cit., supra, note 17, p. 689, viewed the different system
devised in the Convention with regard to severability of treaties as "peu logi-
que". Similar criticism had been expressed with reference to the ILC draft
by U. Scheuner, op. cit., supra, note 17, pp. 528 ff. and "Conflict of Treaty
Provisions with a Peremptory Norm of General International Law", Zeitschrift
fr auslndisches ffentliches Recht und Vlkerrecht, Vol. 29 (1969), pp.
28 ff., pp. 35-38, and also by E. Schwelb, "Some Aspects of International Jus
Cogens as Formulated by the International Law Commission", American
Journal of International Law, Vol. 61 (1967), pp. 946 ff., at p. 972. A critical
306
G. Gaja
view of the Vienna Convention on this aspect was taken by E. P. Nicoloudis,
op. cit., supra, note 17, pp. 114-115, by J. Sztucki, op. cit., supra, note 17,
p. 148 and by Ch. L. Rozakis, op. cit., supra, note 17, p. 126. N. Ronzitti,
op. cit., supra, note 17, p. 296, maintained that Article 44, paragraph 5, of the
Convention cannot be viewed as codifying previously existing international
law.
26. General Assembly resolution 34/65 B of 29 November 1979 declared
that the "Camp David accords and other agreements have no validity" only
"in so far as they purport to determine the future of the Palestinian people and
of the Palestinian territories occupied by Israel since 1967". The apparent
reason for considering the agreements as valid in part was that of favouring
the evacuation of Israeli troops from occupied territory in the Sinai arguably,
the implementation of an obligation imposed by a peremptory norm.
27. R. Y. Jennings, "Nullity and Effectiveness in International Law",
Cambridge Essays in International Law. Essays in Honour of Lord McNair
(1965), pp. 64 ff., p. 70, had maintained that in case of the conflict between
a treaty and a peremptory norm, "presumably there results an absolute nullity,
which accordingly is not affected by the action or inaction of a particular legal
person". A. Bernardini, "Qualche riflessione su norme internazionali di jus
cogens e giurisdizione della Corte nella Convenzione di Vienna sul diritto dei
trattati", Comunicazioni e studi, Voi. 14 (1975), pp. 81 ff., pp. 94 ff. held
that the Vienna Convention does not bar a State from unilaterally declaring
that a treaty is void irrespective of the procedure indicated in Article 65. The
prevailing view is that this procedure must be followed before the invalidity
of a treaty may be declared. See especially F. Capotorti, op. cit., supra, note 19,
p. 570; G. Morelli, op. cit., supra, note 17, pp. 9 and 15; J. Sztucki, op. cit.,
supra, note 17, pp. 138-139; Ch. L. Rozakis, op. cit., supra, note 17, pp. 109-
115 and 191 ; N. Ronzitti, op. cit., supra, note 17, pp. 266 ff.
28. This test was suggested by A. Verdross, "Jus Dispositivum and Jus Co-
gens in International Law", American Journal of International Law, Vol. 60
(1966), pp. 55 ff., pp. 60-61. Judge Schcking of the Permanent Court of In-
ternational Justice had considered it essential, in order to ascertain the validity
of a treaty, to examine whether the Court "would apply" it (PCIJ, Series
A/B, No. 63, p. 150).
29. The change is emphasized by the different approach taken by the
Court in the judgment given in the second phase in the South West Africa
cases (ICJ Reports 1966, pp. 6 ff.) and in the advisory opinion concerning
Namibia {ICJ Reports 1971, pp. 16 ff.). It must be kept in mind that the
Vienna Conference was held in the period between these two landmark
decisions.
30. This attitude was exemplified by the reservation made by the Govern-
ment of Tunisia with regard to Article 66, in order to require "the consent of
all parties" to a dispute for the Court to acquire competence thereon. A dif-
ferent attitude on the part of Tunisia towards the Court's jurisdiction transpires
from the signing on 10 June 1977 and the subsequent ratification of an ad hoc
agreement for submitting to the Court the all-important boundary dispute
with Libya concerning the continental shelf.
31. A first sign of caution was shown by the Court in its judgment on the
North Sea Continental Shelf cases. When considering the relations between rules
of general international law and treaties, the Court said : "without attempting
to enter into, still less pronounce upon any question of jus cogens .. ." {ICJ
Reports 1969, p. 42).
32. ICJ Reports 1979, p. 19.
33. ICJ Reports 1979, p. 20. The French text, which is not authoritative,
includes the words "obligations imperatives" which correspond more closely
to the term "normes imperatives" used in Article 53 and in Article 64 of the
Vienna Convention.
- Jus Cogens Beyond the Vienna Convention 307
34. ICJ Reports 1980, pp. 40 and 42.
35. ICJ Reports 1980, p. 41. In the French text, which is not authorita-
tive, one can find the following words: "caractre impratif des obligations
juridiques".
36. E. Zoller, "L'affaire du personnel diplomatique et consulaire des Etats-
Unis Thran", Revue gnrale de droit international public. Vol. 84 ( 1980),
pp. 973 ff., at p. 1024, and G. Morelli, "Norme ed. fondamentali e norme
cogenti", Rivista di diritto internazionale. Voi. 64 ( 1981 ), pp. 509-510, reached
the same conclusion. A different view was taken by Ph. Bretton, "L'affaire
des 'otages' amricains devant la Cour internationale de Justice", Journal du
droit international, Vol. 108 (1980), pp. 787 ff. at p. 820. He suggested that
the Court saw "dans cette affaire une occasion 'idale' pour jeter les bases
d'une approche concrte de l'insaisissable jus cogens".
37. For the latter view, one may refer to R. Ago, "Science juridique et
droit international", Recueil des cours. Vol. 90 (1956-11), pp. 851 ff., at pp.
928-935. G. I. Tunkin, Theory of International Law (transi, by W. E. Butler)
(1974), p. 157, noted that "it would be incorrect to assert that the inefficacy
or ineffectiveness of a norm cannot influence its legal validity". According
to Ch. De Visscher, Les effectivits du droit international public (1967),
p. 75, effectiveness indicates 'Taction sur la coutume de faits qui ne se confon-
dent pas avec ses lments constitutifs". On the contrary, J. Touscoz, Le
principe d'effectivit dans l'ordre international ( 1964), p. 181, maintained that
the absence of effectiveness only relevant in case of a "dsutude": "un
dfaut de mise en application d'une rgle de droit, accompagn de la cons-
cience commune que cette rgle ne doit plus tre respecte".
38. "Report of the International Law Commission on the work of the se-
cond part of its seventeenth session, Monaco, 3-28 January 1966", Yearbook
of the International Law Commission (1966-11), pp. 168 ff., at p. 247.
39. "Report of the International Law Commission on the work of its thirty-
second session, 5 May-25 July 1980", doc. A/35/40, p. 108.
40. This was said on 22 November 1976 in the context of criticism of the
Soviet proposal for a treaty relating to the non-use of force. The declaration
is also reproduced in Digest of United States Practice in International Law
1976 (E. C. McDowell, ed.), p. 685.
41 : Article IV of the Treaty runs as follows :
"In the event of a breach of the provisions of the present Treaty,
Greece, Turkey and the United Kingdom undertake to consult together
with respect to the representations or measures necessary to ensure ob-
servance of those provisions. In so far as common or concerted action
may not prove possible, each of the three guaranteeing Powers reserves
the right to take action with the sole aim of re-establishing the state of
affairs created by the present Treaty." {United Nations Treaty Series,
Vol. 382, pp. 3 ff., at p. 6.)
The delegate of Cyprus, Mr. Kyprianou, said : "It is quite clear that Article IV
of the Treaty of Guarantee as interpreted by Turkey is contrary to peremptory
norms of international, law, jus cogens." (Security Council Official Records,
1098th Meeting: 27 February 1964, paragraph 95.) The Security Council
resolutions did not deal with the interpretation of the Treaty or its possible
conflict with a peremptory norm.
42. The declaration by the Iranian Government was made on 5 November
1979; it referred to Articles 5 and 6 of the 1921 Treaty (Keesing's Contem-
porary Archives, Vol. 26 (1980), p. 30206). W. M. Reisman, "Termination of
the USSR's Treaty Right of Intervention in Iran", American Journal of Inter-
national Law, Vol. 74 (1980), pp. 144 ff., at pp. 151-153, suggested that jus
cogens had been invoked in order to justify the termination of the Treaty.
Article 6 read as follows :
308 G. Gaja
"If a third Party shall attempt to carry out a policy of usurpation by
means of armed intervention in Persia, or if such Power should desire to
use Persian territory as a base of operations against Russia, or if a Foreign
Power should threaten the frontiers of Federal Russia or those of its Al-
lies, and if the Persian Government should not be able to put a stop to
such menace after having been once called upon to do so by Russia,
Russia shall have the right to advance her troops into the Persian interior
for the purpose of carrying out the military operations necessary for its
defence. Russia undertakes, however, to withdraw her troops from
Persia as soon as the danger has been removed." (League of Nations
Treaty Series, Vol. 9, pp. 384 ff., at p. 403.)
43. The very fact of the institution within the United Nations of a Special
Committee on Enhancing the Effectiveness of the Principle of Non-Use of
Force in International Relations may be taken as an indication of the general
awareness that the provisions of the United Nations Charter concerning the
use of force are lacking the effectiveness.
44. The proposal sought to embody in the final clauses of the Convention
a statement that the provision relating to the common heritage of mankind is
a peremptory norm. Although a large number of delegations appeared to favour
this proposal, it failed because of the opposition of the developed countries.
For a brief analysis of the relevant discussion see B. H. Oxman, "The Third
United Nations Conference on the Law of the Sea: the Eighth Session (1979)",
American Journal of International Law, Vol. 74 (1980), pp. 1 ff., at pp. 38-
40 ; T. Treves, "La nona sessione della Conferenza sul diritto del mare", Rivista
di diritto internazionale, Voi. 62 (1980), pp. 432 ff., at pp. 458-459.
45. The latter mostly consist of short analyses of the relations between
peremptory norms and the norms whose violation may constitute an interna-
tional crime within the meaning of Article 19 of the ILC draft.
46. ICJReports 1961, p. 35.
47. Apart from the proviso, Article 71, paragraph 2 (b), is identical to
Article 70, paragraph 1 (b).
48. When considering the text corresponding to the future Article 53 of the
Convention, the ILC commentary asserted that "the emergence of a new rule
of jus cogens is not to have retroactive effects on the validity of a treaty"
("Report of the International Law Commission on the Work of the Second Part
of Its Seventeenth Session, Monaco, 3-28 January 1966", Yearbook of the
International Law Commission (1966-11), pp. 168 ff., at p. 249). The same
view was expressed in the commentary with regard to treaties conflicting with
a supervening peremptory norm (ibid., at p. 261): "a rule of jus cogens does
not have retroactive effects". With respect to the future Article 71, paragraph
2 (b), the ILC stated :
"a right, obligation or legal situation valid when it arose is not to be made
retroactively invalid ; but its further maintenance after the establishment
of the new rule of jus cogens is admissible only to the extent that such
further maintenance is not in itself in conflict with that rule" (p. 267).
G. Morelli, op. cit., supra, note 13, p. 108, nt. 2, suggested that in the absence
of any retroactive effect of the supervening peremptory norm, the provisions
in the draft concerning treaties conflicting with such a norm did not refer cor-
rectly to the concept of "invalidity". According to F. Capotorti, op. cit., supra,
note 19, p. 524, nt. 32, "il ne s'agit pas d'annuler rtroactivement les situations
juridiques nes avant la survenance de la rgle de jus cogens : il s'agit plutt
de rendre les relations entre les parties au trait entirement conformes cette
rgle, pour le futur". P. Reuter, in Annuaire de l'Institut de droit internatio-
nal, Vol. 55 (1973), pp. 72-73 viewed Article 71, paragraph 2 (b), as expressing
the need "que soient remodels d'une manire plus pntrante les effets du
pass qui subsistent dans le prsent". A similar opinion had been taken by P.
Ta vernier, Recherches sur l'application dans e temps des actes et des rgles en
droit international public (Problmes de droit intertemporel ou de droit
transitoire) (1970), pp. 163-164.
49. The ILC commentary included the following passage:
"The principle of the nonretroactivity of international legal obliga-
tions and, in particular, of the impossibility of considering ex post facto
as wrongful acts which were not wrongful at the time when they were
committed, should not, it seems, be weakened, even if the new rule pro-
hibiting such acts in the future is a rule of jus cogens." ("Report of the
International Law Commission on the Work of Its Twenty-eighth Session,
3 May-23 July 1976", Yearbook of the International Law Commission
(1976-11,2), pp. 1 ff., at p. 92.)
A similar assertion can be found in R. Ago's "Fifth Report on State Respon-
sibility", Yearbook o f the International Law Commission (1916-II, l),pp. 3 ff.,
at p. 20.
50. Article 18, paragraph 2, does not refer only to obligations previously
imposed by a treaty.
51. "Fifth Report on State Responsibility", Yearbook of the International
Law Commission (1976-11, 1), p. 18.
52. "Report of the International Law Commission on the Work of Its
Twenty-eighth Session, 3 May-23 July 1976", Yearbook of the International
Law Commission (1976-11, 2), pp. 91-92.
53. J. B. Moore, A Digest of International Law, Vol. II (1906), pp. 355-
357.
54. Supra, note 52, at p. 91. A similar passage was already contained in R.
Ago's "Fifth Report on State Responsibility", supra, note 51, at p. 18.
55. See the interventions by Mr. Sinclair (A/C.6/31/SR. 18, para. 32), Mr.
Tsuruoka (A/C.6/31/SR.21, para. 4) and Mr. Rosenstock (A/C.6/31/SR.17,
para. 7).
56. However, one of the members of the ILC, Mr. Kearney, said that
"as he interpreted it, paragraph 2 did not conflict with, or differ from,
the principle embodied in Article 71 of the Vienna Convention, which
dealt with the same problem in a somewhat different manner" (yearbook
of the International Law Commission (1976-1), p. 238).
On the other hand, when proposing, in its draft articles on treaties concluded
between States and international organizations or between international orga-
nizations, a text corresponding to Article 71 of the Vienna Convention, the
ILC noted that this was not "fully satisfactory" ("Report of the International
Law Commission on the Work of Its Thirty-second Session, 5 May-25 July
1980", doc. A/35/10, p. 207).
57. A different view was expressed in the ILC by Mr. Reuter (Yearbook
of the International Law Commission (1976-1), p. 45). The opinion that Arti-
cle 18, paragraph 2, "represented a progressive development of international
law" was voiced particularly by Mr. Hambro (ibid., p. 43).
58. It is noteworthy that in its resolution taken in 1975 on "the inter-
temporal problem in public international law" the Institut de droit internatio-
nal considered peremptory norms only in paragraph 3, with regard to the States
"power to determine by common consent the temporal sphere of application
of norms". According to this resolution, a treaty providing for a retroactive
effect is "subject to any imperative norm of international law which might
restrict that power" (Annuaire de l'Institut de droit international, Vol. 56
(1975), pp. 537 ff.). The rapporteur referred to the question of retroactivity
of peremptory norms, but was inclined to adopt the same solution as the
Vienna Convention (M. S^rensen, "Le problme dit du droit intertemporel
310 G. Gaja
dans l'ordre international. Rapport provisoire, Annexe I. Expos prliminaire",
Annuaire de l'Institut de droit international. Vol. 55 (1973), pp. 50 ff., at
pp. 53-54). Some members of the relevant committee expressed different
views (P. Reuter, ibid., at pp. 72-73; W. Wengler, ibid., at p. 83). Following
a suggestion by the rapporteur, the Institute dropped the question of the re-
troactive effects of peremptory norms. The opinion that peremptory norms
should have some retroactive effect "par leur nature mme" was held by P.
Tavernier, op. cit., supra, note 48, at pp. 164-165. On the contrary, D. Binds-
chedler-Robert, "De la rtroactivit en droit international public", Recueil
d'tudes de droit international en hommage Paul Guggenheim (1968), pp.
184 ff., at p. 186, maintained that for peremptory norms to be retroactive,
the international community should reach a degree of integration which has
not yet been achieved. An opinion favourable to the retroactive character of
some, or all the peremptory norms was expressed in the discussion of Article
18, paragraph 2, of the draft by Mr. Ushakov, Mr. Martinez Moreno, Mr.
Quentin-Baxter and Mr. El-Erian {Yearbook of the International Law Com-
mission (1976-1), pp. 38, 47, 48 and 51) within the ILC and by the delegates
of Kenya, Mr. Njenga (A/C.6/31/SR.22, para. 25), of Iran, Mr. Bavand (A/C.
6/SR.26, para. 2), of Indonesia, Mr. Wisnoemoerti (A/C.6/31/SR.30,para. 32)
and of Greece, Mr. Crispis (A/C.6/35/SR.52, para. 32) within the General
Assembly Sixth Committee. The possibility of peremptory norms being re-
troactive was also asserted by the delegate of the Netherlands, Mr. Riphagen
(A/C.6/31/SR.22, para. 4) and by the Netherlands Government in its comment
on Article 18 (A/CN.4/328, Add. 4, p. 11). The opposite opinion was held
by the delegates of Japan, Mr. Tsuruoka (A/C.6/31/SR.21, para. 6), and of
Sweden, Mr. Danelius (A/C.6/35/SR.49, para. 2) in the Sixth Committee and
by the Governments of Canada and Chili in their written comments (A/CN.4/
328, pp. 5 and 13).
59. R. Ago, "Eighth Report on State Responsibility", A/CN.4/318/Add.2,
para 21.
Thirty-first session, 14 May-3 August 1979", Yearbook of the International
Law Commission (1979-11, 2), pp. 1 ff., at p. 115.
61. The Soviet news agency Tass reported that the Government of Afgha-
nistan stated the existence of a request for Soviet "military aid" made by the
same Government before the intervention. The Foreign Minister of Afghanistan
took a similar attitude in the debate in the Security Council which ended with
a procedural resolution requesting the convention of an emergency session of
the General Assembly. See Keesing's Contemporary Archives, Vol. 26 (1980),
pp. 30229 and 30236. An analysis of the General Assembly debate under the
aspect here considered was attempted by M. L. Alaimo, "La questione dell'Af-
ghanistan alle Nazioni Unite e il problema del consenso nell'illecito interna-
zionale", Rivista di diritto internazionale, Voi. 64 (1981), pp. 287 ff.
62. The view that consent "might have an effect between the consenting
State and the State committing the breach" was expressed in the ILC by Mr.
Riphagen (Yearbook of the International Law Commission (1979-1), pp. 34-
35). In the Sixth Committee a similar opinion was voiced by the US delegate,
Mr. Rosenstock (A/C.6/34/SR.45, para. 3).
63. R. Ago, "Eighth Report on State Responsibility", A/CN.4/318/Add.2,
paras. 2,17 and 19 ; "Report of the International Law Commission on the Work
of its Thirty-first Session, 14 May-3 August 1979", Yearbook of the Interna-
tional Law Commission (1979-H, 2), pp. 1 ff., at p. 114. The view that consent
is part of an agreement was defended in the ILC particularly by Mr. Verosta,
Mr. Ushakov and Mr. Ago (Yearbook of the International Law Commission
(1979-1), pp. 41,46, 53 and 174) and in the Sixth Committee by the delegates
of Cyprus, Mr. Jacovides (A/C.6/34/SR.44, para. 45) and of Czechoslovakia,
Mr. Jezil (A/C.6/34/SR.48, para. 54). The same view was held by S. Verosta,
"Zur Anwendung der Regel 'Volenti non fit Injuria' im Vlkerrecht", Jus Hu-
manitatis. Festschrift zum 90. Geburtstag von Alfred Verdross (1980), pp.
689 ff., at pp. 690 and 693. For a similar view see I. Brownlie, Principles of
Public International Law, 3rd ed. (1979), p. 514.
64. E. Suy, op. cit., supra, note 23, p. 75, noted: "one does not see why
something which is intolerable as far as international treaties are concerned
would not be so in respect of any other legal act". A different view was held
by Ch. I. Rozakis, op. cit., supra, note 17, p. 19, who considered that "the
expansion of the functional scope of the jus cogens norms beyond the sphere
of treaties to that of unilateral acts or actions" was only "desirable de lege
ferenda". Analogy could be applied only to unilateral acts in a narrow and
technical sense, like promise or recognition. The opinion that consent may
constitute such a unilateral act was defended in the ILC by Mr. Reuter, Mr.
Jagota and Mr. Riphagen (Yearbook of the International Law Commission
(1979-1), pp. 18, 43 and 48).
65. Hence, even if consent was considered to be an agreement, Article 29,
paragraph 2, would not have been superfluous.
Thirty-first Session, 14 May-3 August 1979", Yearbook of the International
Law Commission (1979-11, 2), pp. 1 ff., at p. 134.
67. In the "Report of the International Law Commission on the Work of its
Thirty-second Session, 5 May-25 July 1980", A/35/10, p. 107, it was argued
that since "consent. . . can in no event preclude the wrongfulness of an act of
a State not in conformity with an international obligation created by such a
rule", "peremptory rules are so essential for the life of the international com-
munity as to make it all the more inconceivable that a State should be entitled
to decide unilaterally, however acute the state of necessity which overtakes it,
that it may commit a breach of the obligations which these rules impose on it".
The view that, in the presence of peremptory norms, "scope for reliance on
doctrines of reprisals and necessity will be reduced" was expressed by I. Brown-
lie, op. cit., supra, note 63, p, 514, nt. 5. P. A. Pillitu, Lo stato dinecessit nel
diritto internazionale (1981), pp. 263-273, maintained that the state of neces-
sity could be invoked in order to justify a "limited" violation of obligations
which are imposed by. peremptory norms other than those whose violation
would constitute an international crime. Practice invoked to justify this con-
clusion only consists of the British bombing of the Torrey Canyon off the
Cornish coast a case in which the breach of an obligation imposed by a
peremptory norm appears to be questionable for the reasons given supra,
paragraph 2.
Thirty-first Session, 14 May-3 August 1979", Yearbook of the International
Law Commission (1979-11, 2), pp. 1 ff., at p. 120. In an often-quoted passage
Sir Gerald Fitzmaurice, "The General Principles of International Law Con-
sidered froin the Standpoint of the Rule of Law", Recueil des cours, Vol. 92
(1957-11), pp. 5 ff., at p. 12, wrote:
". . . there are certain forms of illegal action that can never be justified
by or put beyond the range of legitimate complaint by the prior illegal
action of another State, even when intended as a reply to such action.
These are acts which are not merely illegal, but malum in se, such as
certain violations of human rights, certain breaches of the laws of war,
and other rules in the nature of jus cogens that is to say obligations
of an absolute character, compliance with which is not dependent on
corresponding compliance by others, but is requisite in all circumstances,
unless under stress of literal vis major."
69. This point was stressed by P. Reuter, op. cit., supra, note 20, p. 142.
70. At the Vienna Conference the delegate of the United Kingdom, Mr.
312 G. Gaja
Sinclair, said that "leaving to State practice and the jurisprudence of interna-
tional tribunals to work out the full content of a rule" of a peremptory charac-
ter "would be equivalent to providing in a penal code that crimes should be
punished without specifying which acts constituted crimes" (United Nations
Conference on the Law of Treaties, First Session, Vienna, 26 March-24 May
1968, Official Records, p. 304). The image had already been evoked by E.
Schwelb, op. cit., supra, note 25, at p. 964.
71. K. Marek, "Criminalizing State Responsibility", Revue belge de droit
international. Vol. 14 (1978-1979), pp. 460 ff., at p. 479. The ILC reserved
an analysis of the sanctions for crimes and of the procedural guarantees to the
second part of the draft articles on State responsibility. W. Riphagen's "Second
Report on the Content, Forms and Degrees of State Responsibility (Part Two
of the Draft Articles)" did not yet deal with the consequences of international
crimes: the rapporteur wrote that "the possible responses to an 'international
crime' require a special and separate treatment" (A/CN.4/344, para. 100). The
need for a simultaneous examination of international crimes and their conse-
quences was stressed in the ILC particularly by Mr. Tsuruoka {Yearbook of
the International Law Commission (1976-1), p. 78), in the Sixth Committee
by the delegates of the United States, Mr. Rosenstock (A/C.6/31/SR.17, para.
9; A/C.6/33/SR.40, para. 2;A/C.6/35/SR.51,para. 2), of the United Kingdom,
Mr. Sinclair (A/C.6/31/SR.18, para. 36), of Japan, Mr. Tsuruoka (A/C.6/31
/SR.21, para. 7), of the Netherlands, Mr. Riphagen (A/C.6/31/SR.22, para.
5), and of Spain, Mr. Padauye (A/C.6/31/SR.28, para. 37), and also in the
comment by the Austrian Government (A/CN.4/328/Add.4, p. 5). The more
recent and comprehensive discussion of the various issues is by P.-M. Dupuy,
"Observations sur le 'crime international de l'Etat'", Revue gnrale de droit
international public, Vol. 84 (1980), pp. 449 ff. V. Starace's lectures at the
Hague Academy in 1980 have not yet been published.
72. ICJReports 1980, pp. 35-36.
73. ICJ Reports 1980, p. 38.
74. The case was removed from the list by Order of 12 May 1981 {ICJ
Reports 1981, pp. 45 ff.).
75. Action followed the declaration taken at Naples on 18 May 1980 by
the Foreign Ministers of the States members of the.European Community
{EC Bulletin (1980), No. 4). The British response is described in Keesing's
Contemporary Archives, Vol. 26 (1980), pp. 30535-30536.
76. Keesing's Contemporary Archives, Vol. 26 (1980), pp. 30535-30536.
77. The "grave breaches" of the Convention and the Protocol were cha-
racterized as international crimes by P. Benvenuti, "Movimenti insurrezionali
e protocolli aggiuntivi alle Convenzioni di Ginevra del 1949", Rivista di diritto
internazionale, Voi. 64 (1981), pp. 513 ff., at pp. 549-551.
78. R. Ago's "Fifth Report on State Responsibility", supra, note 51, at p.
32, appeared to consider that violations of obligations imposed by peremptory
norms constituted international crimes, although one could not take this as
"necessarily and automatically implied". A similar opinion was expressed by
Mr. Ago in his introductory remarks to the discussion in the ILC {Yearbook of
the International Law Commission (1976-1), p. 57). Some members of the ILC
tended to equate peremptory norms and norms whose violation is an inter-
national crime : especially Mr. Yasseen, Mr. Tammes, Mr. Calle y Calle, Mr.
Sette Cmara, Sir Francis Vallai, Mr. Martnez Moreno, Mr. Rossides and Mr.
Quentin-Baxter {ibid., pp. 63, 64, 65, 68, 68-69, 70, 83 and 249). The opinion
that "whereas an international crime was always a breach of a peremptory rule,
the breach of such a rule was not necessarily an international crime" was held
by Mr. Ushakov, and shared by Mr. Ago, Mr. Ustor and Mr. El-Erian {ibid.,
pp. 71,74,84 and 86). As chairman of the ILC Mr. El-Erian stated in the Sixth
Committee : "the reference to jus cogens in the commentary did not, however,
mean that all international crimes, in the sense of Article 19, corresponded to
the notion of jus cogens . . ." (A/C.6/31/SR.26, para. 40). In the same Com-
mittee the equation between peremptory norms and norms whose violation
constitutes an international crime was defended by the delegates of Kenya,
Mr. Njenga (A/C.6/31/SR.22, para. 26) and of Venezuela, Mr. Diaz Gonzalez
(A/C.6/33/SR.43, para. 17). The Government of the German Federal Republic
advocated a reference to "peremptory norms" in Article 19, paragraph 2 (A/
CN.4/342/Add.3, p. 5). The approach taken by the ILC in not making a refe-
rence to peremptory norms was approved by B. Graefrath, E. Oeser and P, A.
Steiniger, "Internationale Verbrechen Internationale Delikte. Zum Bericht
der 28. Sitzung des UNO-Vlkerrechtskommission", Deutsche Aussenpolitik,
Vol. 22 (1977), No. 3, pp. 90 ff., at pp. 94-95. P.-M. Dupuy, "Action publique
et crime international de 1'Etat : propos de l'article 19 du projet de la Commis-
sion du droit international sur la responsabilit des Etats", Annuaire franais
de droit international, Vol. 25 (1979), pp. 535 ff., at p. 5 51, stated that an inter-
national crime corresponded to the "manquement une norme imprative";
the question whether violations of peremptory norms always implied interna-
tional crimes was left open (ibid., p. 553, nt. 79). According to M. Gounelle,
"Quelques remarques sur la notion de 'crime international' et sur l'volution
de la responsabilit internationale de l'Etat", Mlanges offerts Paul Reuter.
Le droit international: unit et diversit (1981), pp. 315 ff., at pp. 322-323,
"les notions de jus cogens et de 'crime international' se recoupent en partie :'
elles manent du mme principe". J. Combacau, in H. Thierry, J. Combacau,
S. Sur, Ch. Valle, op. cit., supra, note 23, at p. 683, noted that "sous enu-
meration des crimes, on aperoit un point commun, leur caractre de violation
d'une obligation de jus cogens, dont le texte contribue ainsi prciser le
contenu".
Law Commission (1976-11, 2), pp. 119-120. The Commission said:
". . . although it may be true that failure to fulfil an obligation estab-
lished by a rule of jus cogens will often constitute an international
crime, it cannot be denied that the category of international obligations
admitting of no derogation is much broader than the category of obliga-
tions whose breach is necessarily an international crime."
Law Commission (1976-11, 2), p. 102. This is an almost literal reproduction
of a passage contained in R. Ago's "Fifth Report on State Responsibility",
supra, note 51, at p. 32.
81. As was stated in W. Riphagen's "Preliminary Report on the Content,
Forms and Degrees of State Responsibility (Part 2 of the Draft Articles)", "a
'non-neutral position' of a third State, or even of every third State, is a 'legal
consequence' of a wrongful act that is not necessarily reserved for such
wrongful acts as constitute 'international crimes'" (A/CN.4/330, para. 66).
314
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