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 Law1 and the Rpertoire suisse de droit international public2 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" treaties3. 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 Convention4. Although all these provi-sions were adopted by a large majority vote at the Vienna Confer-ence following a compromise reached at the eleventh hour5, 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 jurisdiction6.

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 breach7 and of a fundamental change in the circumstances8 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 infringed10.

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 invalid13. 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 question1S. 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 void16. 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 it17. 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 peremptory18. 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 Convention19. If this is so, the test would substantially corres-pond to the one applicable for ascertaining the existence of a norm of general international law20.

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 Justice21 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 character22. 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 norms23. 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 context24. 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 treaty25. 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 taken27. 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-ter28.

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-bly29. 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 disappear30.

Meanwhile, the Court has been understandably cautious in defin-ing certain norms as peremptory31. 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 norms36. 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 existence37.

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 cogens36".

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 Turkey41. 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 intervention42. 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 aggressor43. 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-tory44 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 writings45.

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 Trust46".

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 7047. 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 effect48.

The International Law Commission draft articles on State res-ponsibility also presuppose that peremptory norms do not have any such effect49. 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 thems0, 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 adopted51".

This example was taken over by the International Law Commission in its commentary52. 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

CamilaHighlight


"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-bility54".

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 obligationsss. 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-tion56 and are not implied by the concept of peremptory norm either as such a concept is defined in the Vienna Convention57 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 affected58.

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

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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 rapporteur59 and later the International Law Commis-sion60 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 Afghanistan61.

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 obligation62. 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 oromission63. 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 treaties64. 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 obligation65. 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-tified68".

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 possible69.

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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 applied70. 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 continue72. 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 withdrawn74. 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 Community75 and by some other States, such as Australia, Canada, Japan and Norway76.


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 Protocol77 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 crimes78. This was reflected in the International Law Commission's commentary79.

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 it80".

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 crime81.

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

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