Hostname: page-component-78c5997874-94fs2 Total loading time: 0 Render date: 2024-11-13T10:54:49.720Z Has data issue: false hasContentIssue false
  • English
  • Français

Some Aspects of International Jus Cogens as Formulated by the International Law Commission*

Published online by Cambridge University Press:  28 March 2017

Egon Schwelb
Egon Schwelb*
Affiliation:
Yale Law School
Get access Rights & Permissions [Opens in a new window]

Extract

Article 50 of the Draft Articles on the Law of Treaties, which were presented by the International Law Commission to the General Assembly in 1966 and which the General Assembly has referred, as the basic proposal for consideration, to the international conference of plenipotentiaries, provides under the heading “Treaties conflicting with a peremptory norm of general international law (jus cogens)” that:

A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 4 , October 1967 , pp. 946 - 975
Copyright
Copyright © American Society of International Law 1967

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

This article is, in part, based on sections of a memorandum which the writer prepared in February, 1966, as Eapporteur of the Study Group on the Draft Articles on the Law of Treaties of the American Society of International Law.

References

1 I.L.C. Eeports on 2nd part of its 17th Sess. and on its 18th Sess., General Assembly, 21st Sess., Official Eecords, Supp. No. 9 (A/6309/Eev. 1), pp. 18 and 76 et seq; 61 A.J.IX. 248 (1967). The report on the 18th Sess. will be referred to as “18th Eeport” hereafter.

2 General Assembly Ees. 2166 (XXI) of Dec. 5, 1966.

3 The preparatory work of the present draft Arts. 50 and 61 will be found in the following documents: Second Eeport on the Law of Treaties by Sir Humphrey Waldock, draft Art. 13 (Treaties void for illegality), 1963 I.L.C. Yearbook (II) 52; summary records of the 15th Sess. of the I.L.C., 683rd, 684th, 685th, 705th, 717th and 721st meetings (present Art. 50) and 711th, 717th, and 721st meetings (present Art. 61) in op. cit., Vol. I ; I.L.O. Eeport on Its 15th Sess. (1963), General Assembly, 18th Sess., Official Eeeords, Supp. No. 9 (A/5509), reprinted in op. cit., Vol. II, p. 187 and in 58 A.J.I.L. 2,41 (1964), draft Arts. 37 and 45; comments by governments on Arts. 37 and 45 of the 1963 draft, U.N. Doc. A/CN.4/175, Feb. 23, 1965, reprinted in Annex to U.N. Doc. A/6309/Eev. 1, note 1 above; Fifth Eeport on the Law of Treaties by Sir Humphrey Waldock, U.N. Doc. A/CN.4/183/Add. 1 (Dec. 4, 1965), and Add. 3 (Jan. 3, 1966); summary records of the second part of the I.L.C. 17th Sess. (January, 1966), 828th, 835th, 840th, 841st and 842nd meetings, 1966 I.L.C. Tearbook (I) Pt. I. The present draft Art. 67 was considered and adopted during the 18th Sess. of the I.L.C. (May- July, 1966) at the 865th and 894th meetings, as Art. 53 bis; op. cit., Vol. I, Pt. II, pp. 160-162 and 334. For the proceedings of the Sixth Committee at the 18th, 20th and 21st Sessions of the General Assembly, see note 4 below.

4 General Assembly, 18th Sess., Official Eeeords, Sixth Committee (1963), 780th to 793rd meetings, also reproduced in I.L.C. Doc. A/CN.4/175, Feb. 23, 1965; ibid., 20th Sess. (1965), Sixth Committee, 843rd to 845th, 847th, 849th and 851st meetings; ibid., 21st Sess. (1966), Sixth Committee, 903rd, 905th to 915th and 917th meetings. See also the Guide to the Draft Articles on the Law of Treaties prepared by the Secretariat for the 22nd Sess. (1967) of the General Assembly (TJ.N. Doc. A/C.6/376).

5 See, in particular Schwarzenberger, “International Jus Cogenst” 43 Texas Law Review 455 (1965), a condensed and adapted version of which appeared under the title “The Problem of International Public Policy” in 18 Current Legal Problems 191 (1965); Verdross, “Jus Dispositivum and Jus Cogens in International Law,” 60 A.J.I.L. 55 (1966). When the present article went to press the “Papers and Proceedings on the Concept of Jus Cogens in International Law” of the Conference on International Law, held at Lagonissi (Greece) April 3-8, 1966 (Carnegie Endowment for International Peace (European Center), Geneva, 1967), became available to the writer through the courtesy of the Carnegie Endowment. The volume contains, inter ‘alia, a comprehensive report on “The Concept of Jus Cogens in Public International Law” by Professor Eric Suy.

6 1953 I.L.C. Yearbook (II) 154-156.

7 Sir Gerald Fitzmaurice, Third Eeport on the Law of Treaties, 1958 I.L.C. Yearbook (II) 40; Sir Humphrey Waldock, Second Beport on the Law of Treaties, 1963 ibid. (II) 52.

8 See, e.g., the comprehensive analysis in Bluntschli, Das moderne Volkerrecht der civilisirten Staten als Eechtsbuch dargestellt 234 et seq. (1st ed., 1868). Verdross, loe. eit. note 5 above, p. 56, traces the idea to Wolff and Vattel.

9 The Wimbledon Case. Collection of Judgments of the P.C.I.J., Series A, No. 1 (1923).

10 The Oscar Chinn Case, Judgments, Orders and Advisory Opinions, Series A/B, Fasc. No. 63 (1934) at 149-150.

11 Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Vol. IX (Washington, TJ. S. Govt. Printing Office, 1950). See also Verdross, Volkerrecht 172 (5th ed., 1964).

12 Trials of War Criminals, op. tit. 29.

13 International Convention relative to the Treatment of Prisoners of War, signed at Geneva, July 27, 1929, 118 League of Nations Treaty Series 343, Art. 31. In the Geneva Convention relative to the Treatment of Prisoners of War of Aug. 12, 1949, which, in relations between the parties, replaces the Convention of 1929 (Art. 134), prisoners of war must not be compelled to do work in the metallurgical, machinery and chemical industries (Art. 50).

14 The employment of prisoners of war in work that has a connection with the operations of the war is also prohibited by the Hague Begulations respecting the Laws and Customs of War on Land of 1899 and 1907 (Art. 6) and is a rule of customary international law of very long standing. See, e.g., Hall, A Treatise on International Law §132 (1st ed., 1880). l* Op. cit. note 11 above, p. 1395.

15 18 Entscheidungen des Bundesverfassungsgerichts 441 (1965); also reprinted in 13 Archiv des Volkerrechts (May, 1966); see Eiesenfeld, in 60 A.J.I.L. 511 (1966), where also an English translation of the relevant passages of the judgment is given.

16 It does not appear that the right of a private litigant to claim the invalidity of an international treaty because of its repugnance to a peremptory rule of international law was challenged in the proceedings before the Constitutional Court. Art. 25 of the Basic Law (1949) of the Federal Republic provides that the general rules of international law form part of Federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the territory of the Federal Republic. If the Swiss company's contention that the German-Swiss treaty violated a peremptory rule of international law had been correct, then the court would have been under the obligation to disregard the offending treaty, i.e., to treat it as void and to apply the peremptory rule of international law which would have taken precedence over the statute imposing the controversial tax. In this writer's view this would appear to be the logical conclusion also in similar situations involving states where international law is not only part of the law of the land, but also overrides offending statutory provisions.

17 382 TT.N. Treaty Series No. 5475 (1960); see also the Treaty concerning the Establishment of the Republic of Cyprus between the same parties and of the same date, loo. dt, No. 5476.

18 The representative of Cyprus invoked draft Art. 37 of the report on the I.L.C. 1963 session which is identical with the present draft Art. 50. 1963 I.L.C. Yearbook (II) 198; TJ.N. Doc. S/P.V.1098, Feb. 27, 1964.

19 Security Council Res. S/5575. Security Council, 19th Year, Official Records, Supp. for January, February, March, 1964, p. 102.

20 General Assembly Res. 2077 (XX), Dee. 18, 1965, General Assembly, 20th Sess., Official Records, Supp. No. 14 (A/6014). Emphasis added.

21 U.N. Doc. A/P.V.1402 (Provisional), Dec. 18, 1965. None of the permanent members of the Security Council voted for the resolution: the United States voted against, China, France, the TT.S.S.R. and the U.K. abstained.

22 Sir Humphrey “Waldoek in 1963 I.L.C. Yearbook (I) 131.

23 Mr. Shabtai Rosenne, ibid. 74.

24 [1951] I.C.J. Eep. 47.

25 Department of State Pub. 2461, Exec. Agr. Series 472, (Washington, D. C, 1946), p. 45; see Schwelb, “Crimes against Humanity,” 23 Brit. Yr. Bk. Int. Law 178 (1946). Raphael Lemkin said in 41 A.J.IX. 148 (1947): “Such was the legal status of the problem when the General Assembly met … in October of 1946. The present writer [Lemkin] was conscious of the great necessity of establishing a rule of international law which would make sure that ‘revolting and horrible acts’ committed by a government on its own citizens … should in the future not go unpunished.” (Emphasis added.)

26 General Assembly Res. 260 C (III) , Dec. 9, 1948.

27 [1951] I.C.J. Rep. 15 at 23; 45 A.J.I.L. 583 (1951).

28 General Assembly Res. 96(1), Dec. 11, 1946.

29 Annex to General Assembly Res. 2106A(XX), 1406th plenary meeting, Dec. 21, 1965, General Assembly, 20th Sess., Official Records, Supp. No. 14 (A/6014), p. 47; 60 A.J.I.L. 650 (1966).

30 U.N. Docs. A/C.3/SE.1368; A/6181, pars. 195-196. See Schwelb, 15 Int. and Comp. Law Q. at 1054 (1966). The International Covenants on Human Eights, adopted and opened for signature, ratification and accession on Dec. 16, 1966 (General Assembly Res. 2200(XXI), Annex), do not contain denunciation clauses.

31 1963 I.L.C. Yearbook (I) 77-78. It is, perhaps, significant that Dr. Clive Parry, the editor of the British Digest, one of the largest collections of materials relating to the international law practice of one state ever produced, writes that the stipulations of a treaty to which states have agreed are paramount over anything else and rejects for international law the doctrine that an illegal or immoral contract is unenforceable, making an exception only in regard to pre-existing treaty obligations such as those arising under the Charter of the United Nations. Parry, The Sources and Evidences of International Law 34 (1965).

32 Art. 63 of the Convention for the Amelioration of the Condition of the Wounded and Sick in the Field; Art. 62 of the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Art. 142 of the Prisoners of War Convention; and Art. 158 of the Protection of Civilian Persons Convention, 75 U.N. Treaty Series I, Nos. 970-973 (1950).

33 1963 I.L.O. Yearbook (I) 131

34 See Lauterpaeht, “The Covenant as the ‘Higher Law',” 17 Brit. Tr. Bk. Int. Law 54 (1936).

35 No instance of an application of Art. 38 is on record. 2 Bepertory of United Nations Practice Supp. No. 1, Vol. I ; Supp. No. 2, Vol. II.

36 International Status of South-West Africa, Advisory Opinion, [1950] I.C.J. Bep. 128 at 144; 44 A.J.I.L. 757 at 770 (1950) (Question (b), second part, decided by eight votes to six).

37 13 U.N.C.I.O. Docs. 708; Sir Humphrey Waldoek, Second Report on the Law of Treaties, 1963 I.L.C. Yearbook (II) 55-56.

38 Waldoek, ibid.

39 Lord McNair, The Law of Treaties 217 (1961); see also Waldoek, loo. cit. 61.

40 Sir Gerald Fitzmaurice, Third Eeport on the Law of Treaties, 1958 I.L.C. Yearbook (II) 43; Waldoek, loo. cit. 55.

41 E. Y. Jennings, ‘ ‘ Eecent Developments in the International Law Commission: Its Eelation to the Sources of International Law,” 13 Int. and Comp. Law Q. 385 et seq. (1964); see also Schwelb in 13 Archiv des Volkerrechts 1 et seq. (1966).

42 See notes 3 and 4 above.

43 Algeria, Austria, Bolivia, Brazil, Bulgaria, Byelorussian S.S.E., Ceylon, Cyprus, Czechoslovakia, Ecuador, Ethiopia, Ghana, Greece, Guatemala, Hungary, India, Indonesia, Iraq, Israel, Italy, Mongolia, Morocco, Netherlands, Pakistan, Panama, Peru, Philippines, Poland, Portugal, Eumania, Spain, Syria, Tanzania, Thailand, Tunisia, Ukrainian S.S.E., U.S.S.E., United Arab Eepublic, United Kingdom, United States, Uruguay, Venezuela and Yugoslavia.

44 Luxembourg.

45 Chile, France, Japan, Sweden and Turkey.

46 Australia and Belgium

47 Comments by governments, Annex to 18th Beport, p. 143.

48 Mr. Tammes (Netherlands) in the 781st and 903rd meetings of the Sixth Committee. The references to meetings in the following footnotes are to those of the Sixth Committee of the General Assembly. See note 4 above.

49 Mr. Sperduti, 793rd meeting.

50 Mr. Verosta, 911th meeting.

51 Mr. Alcivar, 789th and 849th meetings.

52 Mr. Quintero, 790th meeting.

53 Mr. Oribe, 792nd meeting.

54 Mr. Jimenez, 790th meeting.

55 Mr. Pĕchota, 787th meeting; also Mr. Potočý906th meeting. To the same effect Mr. Prandler (Hungary), 907th meeting.

56 Mr. Tankov, 910th meeting; also Mr. Anguelov, 788th meeting.

57 Mr. Khelladi, 789th meeting.

58 Getachew Kibret, 917th meeting.

59 Mr. Khlestov, 910th meeting; also Mr. Sapozhnikov, 843rd meeting; and Mr. ChkMkvadze, 845th meeting.

60 Comments by governments, Annex to 18th Report, p. 178. See also Mr. Plimpton, 784th meeting, who said that the draft article would do much to advance the rule of international law and should be supported. For United States apprehensions concerning the possible retroactive effect of the provisions and as to who would decide when the facts justify application of the rule, see pp. 968, 973 below.

61 Comments by governments, p. 169.

62 Miss Gutteridge (U.K.), 786th meeting.

63 Mr. Sinclair (U.K.), 908th meeting.

64 Mr. Monod (France), 787th meeting.

65 Mr. Deleau (France), 849th meeting. Emphasis added.

66 Mr. Jeannel (France), 910th meeting.

67 Comments by governments, p. 137.

68 Mr. Bazan (Chile), 849th meeting.

69 Comments by governments, p. 166.

70 1963 I.L.C. Yearbook (I) 214, 705th meeting, par. 70.

71 Mr. Bartoš, 851st meeting of the Sixth Committee.

72 Sir Kenneth Bailey, 912th meeting.

73 Mr. Verosta, 911th meeting.

74 Par. 3 of the Commentary to Art. 50.

75 1963 I.L.C. Yearbook (I) 197.

76 Theorie und Praxis des Vőlkerrechts 67 et seq. (1924).

77 11th meeting of the Sixth Committee.

78 1963 I.L.C. Yearbook (I) 200.

79 Mr. Bartoš, Hid. 148; Mr. Yasseen, ibid. 142 and 250.

80 Mr. Alcivar, 914th meeting of the Sixth Committee.

81 Mr. Yasseen, 849th meeting of the Sixth Committee (1965). Mr. Yasseen spoke as representative of Iraq. That the theory has been given serious consideration can be assumed because the learned representative is a member of the I.L.C. He was its chairman in 1966.

82 “ … societatem talem coiri non posse, ut alter lucrum tantum, alter damnum sentiret, et hanc societatem leoninam solitum appellare … “ (“a partnership cannot be entered into under which the one gets only the profit, the other bears the loss, and such a partnership one usually calls a societas leonina.“). Digests, XVII, 29.

83 Afro-Asian Jurists’ Conference, 1957, Damascus Bar Association, p. 233, quoted by Tunkin in 1963 I.L.C. Yearbook (I) 69. For a criticism see Pal (ibid. 70), who said this definition would make it possible to invalidate a treaty between, say, the United States and a small state on the ground that the United States extended benefits out of all proportion to the obligations assumed by the small state.

84 Mr. Yakimenko, 905th meeting of the Sixth Committee.

85 Mr. Khashbat, 911th meeting.

86 Mr. Khlestov, 910th meeting.

87 Mr. Haadad, 908th meeting.

88 Mr. Maliti, 912th meeting.

89 On the problem of unequal treaties, see Ingrid Detter in 15 Int. and Comp. Law Q. 1069 (1966).

90 31 A.J.I.L. 571 (1937).

91 “Die Erscheinungsformen des zwischenstaatlichen Bechts: jus cogens und jus dispositivum im Vőlkerrecht,” 16 Zeitschrift fur Vőlkerrecht 470 (1931-1932).

92 1 Lehrbuch des Vőlkerrechts 439 (1960).

93 A recent example is Art. XIX of the German-French Armistice, Forest of Compiègne, June 22, 1940 (34 A.J.I.L. Supp. 173 (1940)), by which the French Government undertook “ to surrender upon demand any German named by the German Government in France as well as in French possessions, colonies, protectorate territories and mandates.“

94 Verdross, Vőlkerrecht 90 (1st ed., Berlin, 1937).

95 Verdross, Vőlkerrecht 172 (5th ed., Vienna, 1964). See also text at notes 11 and 12 above.

96 Mr. Belaunde, 915th meeting.

97 1963 I.L.C. Yearbook (I) 214 (Mr. Bartoš).

98 Comments by governments, p. 178. U. S. comments reprinted below, p. 1123.

99 Sir Humphrey Waldock, Fifth Report on the Law of Treaties, U.N. Doe. A/CN. 4/ 183/Add. 1 and Add. 3.

100 1966 I.L.C. Yearbook (I), Pt. I, 828th and 835th meetings, pp. 37 et seq. and 87 et seq.

101 Italics in the original.

102 In 1963 the Nigerian member of the I.L.C., Mr. Elias, suggested that the phrase “A treaty is void… . “ should be changed to “ A treaty shall be void… . “ He did not make this suggestion to exclude the retroactive application of the article but, on the contrary, to bring out its imperative character. The fact that his suggestion was not acted upon is therefore hardly relevant for the question here under consideration. (1963 I.L.C. Yearbook (I) 213.)

103 Art. 15 of the Statute of the I.L.C., Annex to General Assembly Ees. 174 (II) of Nov. 21, 1947, as amended, U.N. Doc. A/CN.4/4/Eev. 1 (U.N. Pub. Sales No.: 62. V.2).

104 18th Report, par. 35; 61 A.J.I.L. 262 (1967). In the report on its Eighth Session in ‘which it presented its draft rules on the law of the sea, the Commission said that it has become convinced that, in that domain at any rate, the distinction established in the statute between these two activities (t.e., codification and progressive development) can hardly be maintained. (Report of the I.L.C. covering the Work of its 8th Sess., 1956, General Assembly, 11th Sess., Official Records, Supp. No. 9 (A/3159), par. 26; also in 1956 I.L.C. Yearbook (II) 255; 51 A.J.I.L. 159 (1957).) Of its draft articles on consular relations the Commission also stated that its work was both codification and progressive development. (Report of the I.L.C. covering the Work of its 13th Sess., 1961, General Assembly, 16th Sess., Official Records, Supp. No. 9 (A/4843), par. 32; also in 1961 I.L.C. Yearbook (II) 91; 56 A.J.I.L. 274 (1962).)

105 See the text above at notes 53 to 58.

106 1963 I.L.C. Yearbook (II) 52.

107 1963 I.L.C. Yearbook (I) 63, 67, 68, 69, 70 and 73.

108 Commentary to draft Art. 37 of the Eeport of the I.L.C. on the Work of its 15th Sess. (1963), General Assembly, 18th Sess., Official Eeeords, Supp. No. 9 (A/ 5509); also 1963 I.L.C. Yearbook (II) 199; 58 A.J.I.L. 266 (1964).

109 Comments by governments, pp. 144-145 and 179; Sir Humphrey Waldoek, Fifth Report on the Law of Treaties, U.N. Doc. A/CN.4/183, Nov. 15, 1965, pp. 22-23.

110 Mr. Amado in 1963 I.L.C. Yearbook (I) 142, par. 65.

111 Sir Humphrey Waldock in 1966 I.L.C. Yearbook (I), Pt. I, p. 85, par. 3.

112 Comments by governments, p. 169.

113 Ibid., p. 178.

114 907th meeting of the Sixth Committee,

115 See note on page 946 above.

116 REeport of the Third Committee, U.N. Doc. A/6181, par. 200.

117 The opinion that the newly independent states are more adverse to adjudication by the I.C.J, than older states has not gone unchallenged. See Shihata in 19 International Organization 203 (1965).

118 U.N. Doc. TD/TEANSIT/9, Art. 16.

119 South-West Africa Cases (Second Phase), [1966] I.C.J. Eep. 6; 61 A.J.I.L. 116 (1967).

120 It is believed that no documentation in support of this change of view is required. By way of illustration one incident from among many may, however, be recalled. When deciding upon the implementation and final clauses of the International Covenant on Civil and Political Eights, the General Assembly eliminated from the draft which was before it all provisions which conferred upon the I.C.J, functions in connection with the operation of the Covenant: Art. 29 et seq. of the draft Covenant on the election of the members of the Human Bights Committee by the I.C.J., draft Art. 44 on requests for advisory opinions; draft Art. 46 on adjudication by the I.C.J. (Eeport of the Tenth Session (1954) of the Commission on Human Eights, Economic and Social Council, 18th Sess., Ofacial Eecords Supp. No. 7 (E/2573) (Annex I ) ) . The Covenant was adopted and opened for signature, ratification and accession by General Assembly Bes. 2200 (XXI) of Dec. 16, 1966, and will be found in the Annex to the resolution. It is also reprinted in 61 A.J.I.L. 870 (1967).