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Peremptory Norms of General International Law (Jus Cogens) and Other Topics: The Seventy-First Session of the International Law Commission

Published online by Cambridge University Press:  17 January 2020

Sean D. Murphy
Sean D. Murphy*
Affiliation:
Manatt/Ahn Professor of International Law, George Washington University, and member of the UN International Law Commission.
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American Journal of International Law , Volume 114 , Issue 1 , January 2020 , pp. 68 - 86
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Copyright © 2020 by The American Society of International Law

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References

1 See Report of the International Law Commission: Seventy-First Session, UN GAOR, 74th Sess., Supp. No. 10, at 1−2, paras. 1, 3, UN Doc. A/74/10 (2019) [hereinafter 2019 Report]. This report and other International Law Commission documents are available online at http://legal.un.org/ilc. In addition, UN documents are generally available online at https://documents.un.org/prod/ods.nsf/home.xsp.

2 For the complete set of draft conclusions and commentaries, see 2019 Report, supra note 1, at 142–208. For discussion of prior work on these conclusions, see Murphy, Sean D., Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission, 110 AJIL 718, 730–31 (2016)Google Scholar [hereinafter Murphy, Sixty-Eighth Session]; Sean Murphy, D., Crimes Against Humanity and Other Topics: The Sixty-Ninth Session of the International Law Commission, 111 AJIL 970, 988–90 (2017)CrossRefGoogle Scholar [hereinafter Murphy, Sixty-Ninth Session]; Sean D. Murphy, Anniversary Commemoration and Work of the International Law Commission's Seventieth Session, 113 AJIL 90, 100–03 (2019) [hereinafter Murphy, Seventieth Session].

3 See International Law Commission, Fourth Report on Peremptory Norms of General International Law (Jus Cogens), UN Doc. A/CN.4/727 (Jan. 31, 2019) (prepared by Special Rapporteur Dire Tladi) [hereinafter Fourth Report on Peremptory Norms of General International Law]. The Fourth Report also considered whether there may exist “regional jus cogens,” a concept that the Commission ultimately elected not to address in the draft conclusions.

4 2019 Report, supra note 1, at 142.

5 Id. at 148. Draft conclusion 2 reads: “A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

6 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969).

7 2019 Report, supra note 1, at 150. Draft conclusion 3 reads: “Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable.”

8 2019 Report, supra note 1, at 142–43.

9 Id. at 143–46.

10 Id. at 188–89, paras. (2)–(4).

11 Id. at 146 (draft conclusion 21, para. 4).

12 Id. at 143–46.

13 See International Law Commission, Third Report on Peremptory Norms of General International Law (Jus Cogens), at 68–69, UN Doc. A/CN.4/714 (Feb. 12, 2018) (prepared by Special Rapporteur Dire Tladi).

14 Fourth Report on Peremptory Norms of General International Law, supra note 3, at 63, para. 137.

15 2019 Report, supra note 1, at 203–07, paras. (1)–(14).

16 For example, the Commission has previously referred to the prohibition of piracy as jus cogens, but that norm does not appear in the Annex. See 2019 Report, supra note 1, at 207, para. (13).

17 For example, the Commission has used phrases such as “[there] seems to be widespread agreement” with regard to certain norms being jus cogens. See id. at 204–05, para. (4).

18 For example, compare the formulation of the “law of the Charter concerning the prohibition of the use of force” with the formulation “the prohibition of aggressive use of force.” See id. at 205, para. (5).

19 For example, it includes the work of a study group. See id. The Commission's commentary even points to a reference by the Commission to a particular norm made during a first reading text, which was then deleted at second reading. See id. at 207, para. (13).

20 Id. at 5, para. (15).

21 For the complete set of draft principles and commentaries, see 2019 Report, supra note 1, at 215–96. For discussion of prior work on these principles, see Murphy, Sean D., Immunity Ratione Personae of Foreign Government Officials and Other Topics: The Sixty-Fifth Session of the International Law Commission, 108 AJIL 41, 55–56 (2014)Google Scholar [hereinafter Murphy, Sixty-Fifth Session]; Sean Murphy, D., The Expulsion of Aliens (Revisited) and Other Topics: The Sixty-Sixth Session of the International Law Commission, 109 AJIL 125, 143 (2015)Google Scholar [hereinafter Murphy, Sixty-Sixth Session]; Sean Murphy, D., Identification of Customary International Law and Other Topics: The Sixty-Seventh Session of the International Law Commission, 109 AJIL 822, 838–41 (2015)Google Scholar [hereinafter Murphy, Sixty-Seventh Session]; Murphy, Sixty-Eighth Session, supra note 2, at 731–32; Murphy, Sixty-Ninth Session, supra note 2, at 992; Murphy, Seventieth Session, supra note 2, 103–04.

22 See International Law Commission, Second Report on Protection of the Environment in Relation to Armed Conflict, UN Doc. A/CN.4/728 (Mar. 27, 2019) (prepared by Special Rapporteur Marja Lehto).

23 2019 Report, supra note 1, at 215, para. (3).

24 Id. at 211.

25 Id. at 211–12.

26 Id. at 212–13.

27 Id. at 248–49, para. (5).

28 See generally U.S. Dep't of Defense, Office of the General Counsel, Department of Defense Law of War Manual (updated Dec. 2016).

29 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (with annex), adopted December 10, 1976, 1108 UNTS 151.

30 Convention (IV) Respecting the Laws and Customs of War on Land (Hague Convention IV), Annex to the Convention: Regulations Concerning the Laws and Customs of War on Land (Hague Regulations), Oct. 18, 1907.

31 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 UNTS 287.

32 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts(Protocol I), June 8, 1977, 1125 UNTS 3, 16 ILM 1391 [hereinafter Additional Protocol I].

33 2019 Report, supra note 1, at 257–60, paras. (2)–(10).

34 Id. at 257, para. (2).

35 Additional Protocol I, supra note 32, Art. 51, paragraph 6, provides: “Attacks against the civilian population or civilians by way of reprisals are prohibited.”

36 See Murphy, Sixty-Seventh Session, supra note 21, at 839–41.

37 2019 Report, supra note 1, at 213–14.

38 Id. at 214–15.

39 Id. at 5, para. 17.

40 For the complete set of the final articles and commentaries, see 2019 Report, supra note 1, at 215–96. For discussion of prior work on these conclusions, see Murphy, Sixty-Seventh Session, supra note 21, at 835–36; Murphy, Sixty-Eighth Session, supra note 2, at 727–29; Murphy, Sixty-Ninth Session, supra note 2, at 988–90.

41 See International Law Commission, Fourth Report on Crimes Against Humanity, UN Doc. A/CN.4/725 (Feb. 18, 2019) (prepared by Special Rapporteur Sean D. Murphy) [hereinafter Fourth Report on Crimes Against Humanity].

42 Id. at 4–5, paras. 4–5.

43 Id. at 5, para. 6. The Commission's secretariat compiled these written comments by governments, international organizations, and others (and organized them article-by-article), in Crimes Against Humanity: Comments and Observations Received from Governments, International Organizations and Others, UN Doc. A/CN.4/726 (Jan. 21, 2019); Addendum 1, UN Doc. A/CN.4/726/Add.1 (Mar. 28, 2019); Addendum 2, A/CN.4/726/Add.2 (May 2, 2019). Verbatim copies of these comments may be accessed at http://legal.un.org/ilc/guide/7_7.shtml.

44 Fourth Report on Crimes Against Humanity, supra note 41, at 5–6, para. 7.

45 2019 Report, supra note 1, at 11 (draft pmbl. para. 3).

46 Id. at 24, para. (4).

47 Id. at 12 (draft article 2, para. 1(h)).

48 The analogous provision of the Rome Statute criminalizes acts of persecution when undertaken in connection with “any crime within the jurisdiction of the Court.” See Rome Statute of the International Criminal Court, Art. 7, para. 1(h), July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute]. Those crimes are genocide, crimes against humanity, war crimes, and the crime of aggression. Id. Art. 5.

49 2019 Report, supra note 1, at 44, para. (38).

50 See Rome Statute, supra note 48, Art. 7, para. 3 (“For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.”).

51 2019 Report, supra note 1, at 45–46, paras. (41)–(42) (citations omitted).

52 Id. at 48–49, paras. (2)–(6).

53 See Additional Protocol I, supra note 32, Art. 86, para. 2.

54 See Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 7, para. 3; Statute of the International Criminal Tribunal for Rwanda, Art. 6, para. 3.

55 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law, Vol. 1: Rules, at 558–63 (2005) (Rule 153).

56 2019 Report, supra note 1, at 14 (draft article 6, para. 3).

57 Id. at 16 (draft article 12, para. 3).

58 GA Res. 71/248, para. 4 (Dec. 21, 2016). For further information on this mechanism, see https://iiim.un.org.

59 SC Res. 2379, para. 2 (Sept. 21, 2017).

60 Human Rights Council Resolution, para. 22, A/HRC/39/L.22 (Sept. 27, 2018).

61 2019 Report, supra note 1, at 18 (draft article 14, para. 9).

62 Id. at 5, para. 13.

63 Report of the International Law Commission on the Work of Its Sixty-Ninth Session, UN GAOR, 72nd Sess., Supp. No. 10, at 203, para. 211, UN Doc. A/72/10 (2017) [hereinafter 2017 Report]. For discussion of prior work on this topic, see Murphy, Sixty-Ninth Session, supra note 2, at 990–92; Murphy, Seventieth Session, supra note 2, at 104–06.

64 For the syllabus of the topic, see Report of the International Law Commission on the Work of Its Sixty-Eighth Session, UN GAOR, 71st Sess., Supp. No. 10, at 400, Annex B, UN Doc. A/71/10 (2016). In recent years, other bodies have also studied this issue. See International Law Association, Report of the Seventy-Third Conference, Rio de Janeiro, Aug. 17–21 2008, at 250 et seq.; Institute of International Law, Fourteenth Commission, State Succession in Matters of State Responsibility, Provisional Report of the Rapporteur, Marcelo G. Kohen; Institute of International Law, Resolution on Succession of States in Matters of International Responsibility, Aug. 28, 2015.

65 2019 Report, supra note 1, at 306–09, paras. 117–18.

66 See International Law Commission, Third Report on Succession of States in Respect of State Responsibility, UN Doc. A/CN.4/ 731* (May 2, 2019) (prepared by Special Rapporteur Pavel Šturma).

67 2019 Report, supra note 1, at 299, para. 77.

68 See International Law Commission, Second Report on Succession of States in Respect of State Responsibility, UN Doc. A/CN.4/719 (Apr. 6, 2018) (prepared by Special Rapporteur Pavel Šturma).

69 See International Law Commission, Succession of States in Respect of State Responsibility: Text of Draft Articles 7, 8 and 9 Provisionally Adopted by the Drafting Committee at the Seventy-First Session, UN Doc. A/CN.4/L.939/Add.1 (July 24, 2019).

70 International Law Commission, Succession of States in Respect of State Responsibility, Statement of the Chair of the Drafting Committee Mr. Claudio Grossman Guiloff, at 8 (July 31, 2019), at http://legal.un.org/docs/?path=../ilc/documentation/english/statements/2019_dc_chairman_statement_sosr.pdf&lang=E.

71 Id.

72 International Law Commission, Sixth Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/722 (June 12, 2018) (prepared by Special Rapporteur Concepción Escobar Hernández). For discussion of prior work on this topic, see Murphy, Sean D., The Expulsion of Aliens and Other Topics: The Sixty-Fourth Session of the International Law Commission, 107 AJIL 164, 169−71 (2013)Google Scholar [hereinafter Murphy, Sixty-Fourth Session]; Murphy, Sixty-Fifth Session, supra note 21, at 41–48; Murphy, Sixty-Sixth Session, supra note 21, at 139–40; Murphy, Sixty-Seventh Session, supra note 21, at 842; Murphy, Sixty-Eighth Session, supra note 2, at 732−42; Murphy, Sixty-Ninth Session, supra note 2, at 981–88; Murphy, Seventieth Session, supra note 2, at 106.

73 International Law Commission, Seventh Report on Immunity of State Officials from Foreign Criminal Jurisdiction, UN Doc. A/CN.4/729 (Apr. 18, 2019) (prepared by Special Rapporteur Concepción Escobar Hernández) [hereinafter Seventh Report on Immunity of State Officials from Foreign Criminal Jurisdiction].

74 See id. at 72–75, Annex II.

75 International Law Commission, Immunity of State Officials from Foreign Criminal Jurisdiction: Text and Title of the Draft Article 8 ante Provisionally Adopted by the Drafting Committee, UN Doc. A/CN.4/L.940 (July 31, 2019).

76 Seventh Report on Immunity of State Officials from Foreign Criminal Jurisdiction, supra note 73, at 68, para. 177.

77 See Report of the International Law Commission on the Work of Its Seventieth Session, UN GAOR, 73rd Sess., Supp. No. 10, at 299, para. 363, UN Doc. A/73/10 (2018) [hereinafter 2018 Report]. For the syllabus of the topic, see 2017 Report, supra note 63 at 224, Annex A.

78 Statute of the International Court of Justice, Art. 38, para. 1(c).

79 See International Law Commission, First Report on General Principles of Law, UN Doc. A/CN.4/732 (Apr. 5, 2019) (prepared by Special Rapporteur Marcelo Vázquez-Bermúdez) [hereinafter First Report on General Principles of Law].

80 See International Law Commission, General Principles of Law: Statement of the Chair of the Drafting Committee, Mr. Claudio Grossman Guiloff, at 2 (Aug. 7, 2019) (“The present draft conclusions concern general principles of law as a source of international law.”).

81 First Report on General Principles of Law, supra note 79, at 73, para. 253.

82 Id. at 56–66, paras. 190–230.

83 For example, in most systems of property law worldwide, there is a legal principle of prescriptive easement, whereby a property owner must accord a right of passage to someone who has traversed the property for a long time without any objection by the property owner. That legal principle, however, has not gained any traction in the domain of international law, most likely because it does not sit well with the concept of the territorial sovereignty of a state. In Right of Passage Over Indian Territory (Port. v. India), Judgment, 1960 ICJ Rep. 6 (Apr. 12), Portugal argued that it had a right to overland access from the sea to enclaves of its territory located within India, based in part on a general principle of law. The Court declined to apply any such principle, finding that instead there was sufficient bilateral practice between the parties to address the issue. It noted that where it “finds a practice clearly established between two States which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations. Such a particular practice must prevail over any general rules.” Id. at 44.

84 First Report on General Principles of Law, supra note 79, at 67–73, paras. 231–53.

85 See, e.g., Michelle Biddulph & Dwight Newman, A Contextualized Account of General Principles of International Law, 26 Pace Int'l L. Rev. 286, 292 (2014) (arguing that there is a purely “domestic approach” and a “hybrid approach” to analyzing general principles, with most deriving general principles from domestic legal systems and some also taking account the structure of the international system itself); Jean d'Aspremont, Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules 97–98, 171 (2011) (referring only to general principles of law as derived from domestic law); Jaye Ellis, General Principles and Comparative Law, 22 Eur. J. Int'l L. 949, 953 (2011) (“[G]eneral principles of international law are today understood as principles derived from municipal law.”); Johan G. Lammers, General Principles of Law Recognized by Civilized Nations, in Essays on the Development of the International Legal Order, at 53, 56 (Frits Kalshoven, Pietr Jan Kuyper & Johan G. Lammers eds., 1980) (noting that many scholars believe that the general principles “consist only of principles generally recognized—implicitly or explicitly—in national legal systems or of principles basic to law in general”); Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals 25 (1953); Hersch Lauterpacht, Private Law Sources and Analogies of International Law 71 (1927) (“[G]eneral principles of law are for the most practical purposes identical with general principles of private law.”).

86 See First Report on General Principles of Law, supra note 79, at 68–69, 70–71, paras. 236–38, 242–43.

87 Id. at 72, paras. 248–49. For example, footnote 422 of the First Report on General Principles of Law quotes the International Military Tribunal as referring to “the general principles of justice applied by jurists and practised by military courts,” which seems to be a reference to national legal systems. Id. at 72, n. 422.

88 For example, the principle of ex turpi causa non oritur actio essentially provides that one party to a dispute cannot avail itself of the fact that the other party has not fulfilled some obligation, if the first party has, by some illegal act, prevented the latter from fulfilling the obligation in question. In the Factory at Chorzów case, the Permanent Court said that such a principle was “generally accepted in the jurisprudence of international arbitration, as well as by municipal courts,” Factory at Chorzow, Jurisdiction, Judgment No. 8, 1927 PCIJ (ser. A) No. 9, at 31, thereby suggesting that the principle may have emerged from within both categories. The International Court of Justice recognized the existence and origins of this principle in both Gabčíkovo-Nagymaros Project (Hung./Slovk.), Judgment, 1997 ICJ Rep. 7, 67, para. 110 (Sept. 25), and more recently in Jadhav (India v. Pak.), Judgment, para. 62 (Int'l Ct. Just. July 17, 2019).

89 Agreements must be kept.

90 A final judgment on the merits is conclusive as between the parties.

91 The later supersedes the earlier law, if both have the same source.

92 See, e.g., Giorgo Gaja, General Principles in the Jurisprudence of the ICJ, in General Principles and the Coherence of International Law, at 39–43 (Mads Andenas, Malgosia Fitzmaurice, Attila Tanzi & Jan Wouters eds., 2019) (stating that general principles of law pertaining to international law, for which there is no analogue in domestic law, require recognition or acceptance by states that reflect their attitude to be bound by such principles).

93 See, e.g., Charles T. Kotuby, Jr. & Luke A. Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes, at 17–29 (2017) (stating that general principles of law of both varieties must be general, universal, and international); Hugh Thirlway, The Sources of International Law, at 99–115 (2014) (stating that the method for identifying general principles of law from the international legal system ought to be guided by the method for those originating from municipal legal systems and that both categories of general principles of law “must represent a shared approach to a general need of a strictly legal nature” such as logical necessity, the requirements of any legal system, equity, and the avoidance of non liquet).

94 See 2018 Report, supra note 77, at 326−34. For discussion of the addition of the topic to the Commission's long-term work program, see Murphy, Seventieth Session, supra note 2, 107–08.

95 2019 Report, supra note 1, at 340, para. 265.

96 Id. at 340–41, paras. 269–71.

97 For discussion of prior work on these draft guidelines, see Murphy, Sixty-Fourth Session, supra note 72, at 171–73; Murphy, Sixty-Fifth Session, supra note 21, at 53–54; Murphy, Sixty-Sixth Session, supra note 21, at 143–44; Murphy, Sixty-Seventh Session, supra note 21, at 822–32; Murphy, Sixty-Eighth Session, supra note 2, at 742–45; Murphy, Sixty-Ninth Session, supra note 2, at 978–80; Murphy, Seventieth Session, supra note 2, 97–100.

98 2019 Report, supra note 1, at 353–57, Annex A.

99 Id. at 358−69, Annex B. The topic was proposed by Claudio Grossman Guiloff (Chile).

100 Id. at 370–94, Annex C. The topic was proposed by Yacouba Cissé (Côte d'Ivoire).

101 Id. at 359–60, paras. 5–8.

102 Id. at 361, para. 16.

103 Id. at 370, para. 2.

104 Id. at 373, para. 10.

105 Id. at 373, para. 11.