8. In Quest of the Practical Value of Jus Cogens Norms

Armed Activities on Territory of the Congo (Democratic Republic of the Congo v Rwanda), ICJ, Jurisdiction and Admissibility, Judgment of 3 February 2006, Separate Opinion of Judge Dugard, para 2 (in relation to para 64 of the judgment).

In Belgium v Senegal, the ICJ stated that the prohibition of torture is not only embedded in customary law but has also a jus cogens character. Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), ICJ, Merits, Judgment of 20 July 2012, para 99.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ, Merits, Judgment of 3 February 2015, para 87.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA), ICJ, Merits, Judgment of 27 June 1986, para 190 (with reference to the work of the International Law Commission that considered the prohibition on the use of force as a conspicuous example of a jus cogens norm).

The notion refers to new peremptory norms that emerge in the course of a continuing legal situation bearing legal effects on the rights and obligations arising out of the said legal situation to the extent they become in conflict with the new norm of peremptory character. As such, the notion entails the recognition of the progress and development of international and ‘international morality’, see, e.g., Jimenez de Aréchaga 1978, at 67.

According to the principle of intertemporality rights may ‘cease in certain cases to be effective as the result of the development of new rules of law attaching conditions of the continued validity of these rights.’ Bjorge 2014, at 143 (referencing Lauterpacht).

Separability aims at ‘preventing the treaty to come to an end due to the invalidity, termination or suspension of individual treaty provisions which do not constitute the main subject of consent.’ Odendahl 2012, at 754.

Dörr and Schmalenbach 2012, at 898. Magallona 1976, at 521 and 523.

Brownlie highlighted that ‘more authority exists for the category of jus cogens than exists for its particular content’. Brownlie 2003, at 490.

For highlighting such scant practice, see Yarwood 2011, at 62. On the customary nature and stressing the fact that it has been seldom invoked in state practice, see Dörr and Schmalenbach 2012, at 898.

It is further acknowledged that the notion of jus cogens can be traced back to Roman Law. While the term (jus cogens) was coined later on, the notion’s underlying rationale may be found in the ius publicum of Roman Law from which no derogation was accepted, giving place, inter alia, to the nullity sanction of agreements running counter to fundamental rules and the so-called bonnes moeurs. See Gómez Robledo 1981, at 17 and 19. The influence of ius naturale in the notion of jus cogens can be observed in the works from Vitoria to Vattel. See Gómez Robledo 1981, at 23–24 (pointing out the main similarities and differences between both, ius naturale and jus cogens). The interrelationship between both notions has been eloquently depicted by Vattel’s opinion. See, e.g., Barberis 1970, at 32–33 (highlighting Vattel’s view of a droit de gens nécessaire that was considered to be binding upon states by virtue of natural law). See also Gómez Robledo 1981, at 28–29.

International Law Commission, Draft Articles on the Law of Treaties with commentaries, 18th session, 1966, UN Doc. A/6309/Rev.l, at 247.

Bianchi 2008, at 492.

Verdross 1966, at 58.

In this vein, Barberis 1970, at 45. Along the same view, see Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010, Separate Opinion of Judge Cançado Trindade, n. 212.

Espósito 2011, at 161 ff. (with further references).

Oscar Chinn (UK v Belgium), PCIJ, Merits, Judgment of 12 December 1934. The parties held different views as to the validity of the Treaty of St Germain de Près (1919) in the light of the 1885 Berlin Treaty. For further background of the case, see Williams 2000, at 546.

Ibid., Separate/Dissenting Opinion of Judge Schücking, at 148.

Ibid., at 150. A similar reasoning was adopted by the IACHR in Aloeboetoe and others v. Suriname, IACtHR, Reparations and Costs, Series C No. 15, Judgment of 10 September 1993. See Sect. 8.5.

Williams 2000, at 548.

Against good or proper moral (a notion familiar to contract law). This was advanced by German literature produced in between both world wars aiming at leaving without effect the Peace Treaties of 1919, see Barberis 1970, at 33.

Williams 2000, at 548 (referring to the trial of Alfred Krupp).

Amongst others, Williams points out that the ICJ cautiously avoided an explicit reference to the term in various occasions. Williams 2000, at 543. Bianchi provides further examples where the ICJ slightly circumvented the explicit reference to jus cogens, for instance in its advisory opinion on the Legality of Use or Threat of Use of Nuclear Weapons, where it referred to the elementary considerations of humanity as ‘intransgressible principles of international customary law’. Legality of Use or Threat of Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para 79 (emphasis added). Pointing out the marginal role that jus cogens had until then in the jurisprudence of the ICJ, see Ruffert 2006, at 297 (referring to Tomuschat’s work).

Williams 2000, at 548.

For instance, in Diallo, a ground breaking case where the ICJ ruled in favour of compensation for material and non-material injury, as a form of reparation, upon finding that violations of international obligations pertaining to the realm of human rights—in addition to the right to information on consular assistance—had resulted in injurious consequences for an individual, made no reference to jus cogens. Judge Cançado Trindade’s separate opinion emphasised that the realisation of justice—the right of access to justice lato sensu—as an imperative of jus cogens constitutes in itself a form of reparation. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), ICJ, Judgment of 30 November 2010, Separate Opinion of Judge Cançado Trindade, paras 81 and 95. In Armed Activities on the Territory of The Congo, where the proceedings have been reinstated by Order of 1 July 2015 with respect to the question of reparations that failed to be settled by negotiation between the parties for almost a decade, the ICJ has entertained a dispute involving grave violations of human rights law and of international humanitarian law in tandem with the jus cogens prohibition of the use of force—whose jus cogens character was acknowledged by the ICJ in Nicaragua v USA by drawing attention to the qualification that had been advanced by the International Law Commission—and the principle of non-intervention. In effect, the judgment of 19 December 2005 ordered reparations to be made by Uganda to Congo for the injury caused by Uganda’s violation of the aforementioned principles, as well as obligations incumbent upon it under international human rights and international humanitarian law and other obligations arising out of international law (Congo was also found to be bound to make reparation to Uganda by the injury caused for violations of the Vienna Convention of Diplomatic Relations). It may be noted, however, that neither the Order of 2015 nor the Judgment of 2005 have made reference to the jus cogens character of some of those principles and norms. Perhaps it was deemed premature to do so in the Order and it may come up in the eventual Judgment on reparations. It may be recalled that the Judgment of 2005 referred to the prohibitions on the use of force and on intervention as principles of international law whose violation was found to be of a grave character. See Armed Activities on the Territory of the Congo, paras 165 and 163.

This was the case in Congo v Rwanda and more recently in Croatia v Serbia, as commented under Sect. 8.3.

Belgium v Senegal may be deemed a case in point, where the jus cogens nature of the prohibition of torture—and its customary status—was affirmed by the ICJ. See Questions Related to the Obligation to Prosecute or Extradite, para 99. In view of the fact that such a significant assertion was made in the section addressing the temporal scope of the aut dedere aut judicare obligation under Article 7(1) of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 (CAT), one may infer that given that jurisdiction was only founded on the basis of the compromissory clause of the Convention (Article 30(1) CAT) the Court sought to underline its inability, in line with its holding in Congo v Rwanda, of considering allegations falling beyond the temporal scope of the Convention, even where compliance with aut dedere aut judicare entailed the observance of and respect for a jus cogens norm (such as the absolute prohibition of torture). For an interesting view posited by Judge Cançado Trindade’s as to the consequences of jus cogens norms– implying not only obligations of conduct but, more importantly, of due diligence and result–, see, Questions Related to the Obligation to Prosecute or Extradite, Separate Opinion of Judge Cançado Trindade, paras 44–51. See also Sect. 8.4.

Ford 1994, at 152 (citing Thirlway).

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Separate Opinion of Judge Singh, at 153. In more general terms, Judge Sette-Camara pronounced with respect to the jus cogens character of the principle of non-intervention. Ibid., Separate Opinion of Judge Sette-Camara, at 199.

Ibid., Judgment on the Merits, para 190.

Villiger’s commentary considers that such a consideration is plausible. See Villiger 2009, at 676 para 25.

Gabčíkovo-Nagymaros Project (Hungary/Slovakia), ICJ, Judgment of 25 September 1997, paras 46 and 99.

Ibid., paras 99 and 112.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), para 87.

Armed Activities on the Territory of the Congo, para 64. In Nicaragua v USA the ICJ referred to the jus cogens nature of the prohibition of the use of force as recognised by the International Law Commission. Military and Paramilitary Activities in and against Nicaragua, para 190. As is well known, in other cases it seemed to have referred to the notion of peremptory norms by resorting to other labels: obligations erga omnes, intransgressible principles.

Article IX of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277.

Congo v Rwanda recalled the holding in Portugal v Australia that reasoned that norms entailing an erga omnes character did not provide per se a jurisdictional basis. Congo v Rwanda, para 64.

Ibid.

The separate/dissenting opinion of Judge Schucking in the Oscar Chinn case (before the Permanent Court of Justice) opined that ‘considerations of international public policy’ should be controlling, even when jurisdiction is conferred by virtue of a special agreement. Oscar Chinn, Separate/Dissenting Opinion of Judge Schucking, at 150.

With a critical view, see Espósito 2011, at 162 ff.

Orakhelashvili considers that ‘[d]erogation means an attempt to legitimise acts contrary to jus cogens and thus to hinder the integral and non-fragmentable operation of a peremptory norm, to aim at a result that is outlawed under a peremptory norm, to allow or oblige states to do what peremptory norms prohibit or abstain from what peremptory norms require.’ Orakhelashvili 2005, at 70. Such a view advances a broader understanding in relation to the International Law Commission’s commentary to the final draft of 1966 leading to the Vienna Convention on the Law of Treaties, considering that ‘by ‘derogation’ is meant the use of agreement (and presumably acquiescence as a form of agreement) to contract out of rules of general international law’. Brownlie 2003, at 489. It seems that such an understanding influenced the Spanish version of Article 53 VCLT that refers to any contrary agreement.

Advancing a negative answer to this question, see Talmon 2012, at 986.

International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, 53rd session of the ILC, UNGA Res 56/83, 12 December 2001.

UNGA Res 56/83, 12 December 2001.

Talmon 2006, at 100 (quoting para 159 of the Advisory Opinion).

Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), ICJ, Judgment of 3 February 2012, Dissenting Opinion of Judge Cançado Trindade, para 296. ‘The fact remains that a conflict does exist, and the Court’s reasoning leads to what I perceive as a groundless deconstruction of jus cogens, depriving this latter of its effects and legal consequences.’.

Such a line of argumentation was coined in Armed Activities on the Territory of the Congo, paras 64–65, and later followed in the Arrest Warrant Case, although in connection with customary law. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ, Judgment of 14 February 2002. It has more recently been affirmed in Croatia v Serbia, where the scope of the compromissory clause of the Genocide Convention was explicitly curtailed with respect to alleged violations of international law that would trigger discussion beyond the Convention, irrespective of their customary nature or the fact that they may entail violations of jus cogens norms. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ, Merits, Judgment of 3 February 2015.

On this point and considering such doubtful stance with regard to jurisdictional and admissibility rules, see Boudreault 2012, at 1007.

Considering unacceptable such division as to what the effects of jus cogens is concerned, see Conforti 2011, at 142. Putting into question the impossibility of considering a conflict of norms of substantive and procedural nature, see Boudreault 2012, at 1007.

Espósito points to the fact that while immunity may serve a procedural purpose in domestic jurisdictions, that was not the case before the ICJ where the question rather posed a substantive debate. See Espósito 2011, at 171. For Boudreault rules on jurisdiction and admissibility do not necessarily entail an exclusive procedural nature. Boudreault 2012, at 1007.

Espósito 2011, at 171 (with further references). The fact that human rights norms have an important procedural bulk is further pointed out by the author. In favour of such distinction, considering that it is embedded in both national and international law and hence not a novelty as to what the immunity rule is concerned, see Talmon 2012, at 983. Advancing some reflections on the potential role for jus cogens norms concerning the jurisdiction of the ICJ vis-à-vis the current formalistic consensual-based system, see Ruffert 2006, at 300.

For instance, Quadri regarded jus cogens force in relation to individual members denoting an international public order: ‘c’est à dire d’un ensemble de règles obligatoires (jus cogens) qui effacent toute règle contraire soit d’origine coutumière, soit d’origine conventionelle ou pactice.’ Quoted by Alexidze 1981, at 243 (with further references concerning the pioneering visions prior to the inclusion of the notion in the Vienna Convention on the Law of Treaties and its historical roots).

Judge Lauterpacht’s Separate Opinion in Bosnia and Herzegovina v Serbia and Montenegro, stressed the hierarchical force of jus cogens norms vis-à-vis both conventional and customary law rules. He further pointed out that such hierarchical normative force is also applicable with respect to Security Council Resolutions issued under Chapter VII of the UN Charter. See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ, Further Request for the Indication of Provisional Measures, Judgment of 16 April 1993, Separate Opinion of Judge Lauterpacht, para 100.

Orakhelashvili 2005, at 69. While the argument is made in relation to the applicability of jus cogens vis-à-vis Article 103 UN Charter, it is deemed applicable for the purpose of the discussion advanced here as the prevailing obligations under the Charter may be deemed both of a substantive and procedural nature.

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, para 81. In so reasoning, according to Orakhelashvili, the ICJ affirmed that the involvement of a breach of jus cogens can invalidate subsequent acts or actions emanating from state or non-state actors. See Orakhelashvili 2015, at 164.

Bastin 2012, at 5 (pointing to some other authors’ opinion).

The underlying debate concerning permissive as opposed to mandatory universal jurisdiction under customary international law with respect to core crimes, as pointed out by Judge Abraham’s separate opinion appended to the Judgment in Belgium v Senegal, may have prompted the Court’s consideration had it not confined its jurisdiction to the Torture Convention ensuing conventional obligations. In his opinion, however, such a question may have elicited a negative response in view of the scarcity of opinio juris in that regard. See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Separate Opinion of Judge Abraham, paras 31–39. Knorr argues that while permissive universal jurisdiction under customary law is an accepted principle, the jus cogens character of the prohibition of genocide in tandem with the aut dedere aut judicare obligation, bear on mandatory universal jurisdiction. Drawing upon the Lotus rationale, it is further argued that ‘a hypothetical norm forbidding the exercise of universal jurisdiction under customary international law would be inherently contrary to the peremptory status of genocide’. Along the view that the prevention obligation—without territorial limit—is part of the jus cogens obligation prohibiting genocide, it is further submitted that mandatory universal jurisdiction exists as a matter of customary law for the custodial state. By the same token, the customary law underpinnings of the jus cogens prohibition of torture, in tandem with the concomitant aut dedere aut judicare obligation, lead to a similar conclusion as to the mandatory character of universal jurisdiction in such cases. Knorr 2011, at 32, 37–39 and 42. Arguing on the prominent role that universal jurisdiction acquires as an avenue to overcome the tension posed by the aut dedere aut judicare obligation in connection with the (jus cogens) non-refoulement protection in exclusion cases under Article 1F(a) Refugee Convention, see Santalla Vargas 2010, at 289–299, 312–313.

Ibid., para 155.

Ibid., Dissenting Opinion of Judge Yusuf, paras 13–14 and 28.

In this vein, see ibid., paras 81 and 95.

In his Separate Opinion Judge Cançado Trindade underscored that no domestic barriers apply for the realisation of the duty to make reparations. Ibid., para 212.

This proposition goes in line with the understanding that Article 53 VCLT ‘derives from the consensual positivist recognition of the relevance of jus cogens’. See Orakhelashvili 2015, at 164. Pointing out that the applicability of jus cogens beyond the domain of treaty law has long been recognised, see Espósito 2011, at 161.

A pioneering judgment addressing the jus cogens character of the prohibition of slavery was Aloeboetoe et al . v. Suriname, a case dating back 1993, commented under Sect. 8.5. For an overview of the IACHR’s case law advancing the notion of jus cogens, see Cançado Trindade 2008, at 7–26. See also Huertas Díaz et al. 2005, 48–83.

In the Tadić case the Appeals Chamber considered that the notion of jus cogens curtailed the power of the Security Council in defining the crimes falling under the jurisdiction of the ICTY, stressing that in so doing any deviation from customary law encountered its limits at the confluence with peremptory norms. See, Prosecutor v. Tadić, Appeals Chamber, Judgment, Case No. IT-94-I-A-T, 15 July 1999, para 296. With a critical view as to the legislative power of the Security Council on the basis of the principle of consent embodied in conventional and customary law, although acknowledging that it is somehow challenged by jus cogens norms, see Fremuth and Griebel 2007, at 354.

See in this connection Prosecutor v. Delalić et al, Trial Chamber, Judgment, Case No. IT-96.21-T, 16 November 1998, para 454; Prosecutor v. Kunarać et al, Trial Chamber, Judgment, Case No. IT-96-23-T, 22 February 2001, para 466 (stressing the fact that despite the prohibition of torture has attained the status of jus cogens, the definition of the offence of torture has remained dormant in international law). In Delalić et al, the Appeals Chamber, while arguing on the need to depart from the traditional dichotomy of international and non-international armed conflicts for the purpose of determining the criminal consequences of similar conduct, recalled the jus cogens character of the prohibition of torture, Prosecutor v. Delalić et al, Appeals Chamber, Judgment, Case No. IT-96-21-A, 20 February 2001, para 172, n. 225. The jus cogens nature of the prohibition of torture was recalled while emphasising the gravity of the offence of torture in Prosecutor v. Milan Simić, Trial Chamber, Sentencing Judgment, Case No. IT-95-9/2-S, 17 October 2002, para 34.

Prosecutor v. Milan Martić, Trial Chamber, Decision (on Review of the Indictment), Case No. IT-95-11-R61, 8 March 1996, para 16. Later on, in Kupreskić the Trial Chamber resorted to the notion of jus cogens attached to core crimes to stress the applicability of the exception provided for in Article 60(5) of the Vienna Convention on the Law of Treaties with respect to the prohibition of reprisals in the event of breaches to international humanitarian law treaties. Prosecutor v. Kupreskić et al, Trial Chamber, Judgment, Case No. IT-95-16-T, 14 January 2000, para 520.

The ICRC Customary International Humanitarian Law Study points out that while there is a trend in international humanitarian law to outlaw belligerent reprisals, some may still be considered lawful subject to stringent conditions. See, Henckaerts and Doswald-Beck 2005, at 513 (Rule 145, see also Rules 146–148). See also Darcy 2015, at 880.

As pointed out by Ford, ‘[i]f its judges understand the nature of their difficult task in adjudicating peremptory law, the structure of the Court will empower them to adjudicate jus cogens matters submitted for decision.’ Ford 1994, at 145.

See ibid., Counter-Memorial of USA, Questions of Jurisdiction and Admissibility, paras 314–315.

Ibid., Memorial of Nicaragua, Compensation, Pursuant to the Order of 18 November 1987, paras 407–413.

Ibid., para 410.

Ibid., Removal from the List, Order of 26 September 1991.

A similar discussion may arise in Congo v Uganda where the proceedings on reparation for grave breaches of international human rights law and of humanitarian law, the prohibition of the use of force and of non-intervention have been reinstated by Order of 1 July 2015. It may be noted, however, that no reference to jus cogens was made along the case. Armed Activities on the Territory of the Congo, Fixing of time limit: Memorials on the question of reparations, Order of 1 July 2015.

For instance, the Security Council condemned the annexation of Kuwait by Iraq and declared it null and void while called upon the international community not to recognise it. UNSC Res 662, 9 August 1990. See also UNSC Res 478, 20 August 1980, which declared null and void the legislative and administrative actions undertaken by Israel as the occupying power with respect to East Jerusalem, and calling upon all states not to recognise such actions. By the same token, the Commission on Human Rights concerning the situation in the occupied Syrian Golan called upon States not to recognise the illegal situation that unfolded by the actions at the legislative and administrative fronts undertaken by Israel as the occupying power. Commission on Human Rights, Resolution 2005/8, 14 April 2005. In its advisory opinion regarding the situation in Namibia, the ICJ affirmed the binding effect of Security Council Resolution 276 of 1970 which declared as illegal the continuing presence of South Africa in Namibia and thus called upon the member (states) to disregard the legal effects of such a situation. See, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ, Advisory Opinion, 21 June 1971, paras 117–118. For addressing the point as to the jus cogens binding effect on Security Council resolutions, see Orakhelashvili 2005, at 63–88.

International Law Commission, Draft articles on the responsibility of states for internationally wrongful acts, with commentaries, 53rd session of the ILC, UN Doc. A/56/10, 2001, at 114.

Dawidowicz 2010, at 684.

Orakhelashvili 2015, at 175.

Such obligation has been thus far mainly dealt with by the General Assembly and the Security Council in connection with specific situations. See Dawidowicz 2010, at 685.

Ibid., at 686.

Ibid., at 685–686.

Article 17 of the 1948 Charter of the Organisation of American States, 119 UNTS 3.

Ibid., para 110.

Ibid., para 111.

Ibid., at 36–37.

Ibid., at 32.

Cançado Trindade 2009, at 10.

Tibi v Ecuador, IACtHR, Preliminary Objections, Merits, Reparations and Costs, Series C No. 114, Judgment of 7 September 2004, Separate Opinion of Judge Cançado Trindade, para 32 (with reference to de Wet 2004, at 113, which provided domestic examples where the normative overriding power of jus cogens has materialised and noting that such power extends beyond the prohibition of torture).

‘A state may invoke the invalidity of a unilateral act: (f) If, at the time of its formulation, the unilateral act conflicts with a peremptory norm of international law.’ V.R. Cedeño, Special Rapporteur, Third report on unilateral acts of states, UN Doc. A/CN.4/505, 17 February 2000, para 167.

Ford 1994, at 145. More recently, Espósito 2011, at 161 ff.

Dörr and Schmalenbach 2012, at 931, para 72.

Recognising such potential of jus cogens norms, Ford 1994, at 145.

Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad), ICJ, Judgment of 3 February 1994, paras 72–73. See also Temple of Preah Vihear (Cambodia v Thailand), ICJ, Judgment of 15 June 1962, at 34.

Although not specifically referring to jus cogens, see Temple of Preah Vihear, Request for the Indication of Provisional Measures, Order of 18 July 2011, Judge Cançado Trindade’s Separate Opinion, para 115. He stresses the insufficiency of case law and doctrine regarding the practical consequences arising out of the domain of superior values.

Ibid., para 49.

For a discussion on the time element in treaty interpretation also in connection with the notion of jus cogens superveniens, see Bjorge 2014 (in particular Chapter 4).

Gabčikovo-Nagymaros Project, para 112. As pointed out by Cannizzaro, the applicability of jus cogens beyond the confines of the Vienna Convention entailing consequences under the law of general state responsibility was recognised by Gaja in the early 1980s and found echo in the articles on state responsibility of the International Law Commission in 2001. Cannizzaro et al. 2011, at 425.

Aloeboetoe et al . v. Suriname, paras 56–57.

Ibid., para 57.

Stressing the customary law function recognised in Article 4 with respect to, inter alia, the jus cogens provisions, see Dörr and Schmalenbach 2012, at 81 and 84.

Dörr and Schmalenbach highlight that the fear of instability in treaty relations that may ensue from an abuse of jus cogens prompted the insertion of the procedural requirements provided for in Arts. 65 and 66 of the Vienna Convention. Dörr and Schmalenbach 2012, para 59. Gaja points out that a central bone of contention in the discussions leading to the adoption of the Vienna Convention was the fact that finding treaties in conflict with peremptory norms was not much amenable to various states which led to a compromise concerning the provision for the settlement of disputes. Gaja 1981, at 302.

Ibid.

Ibid., at 1124.

Ibid., at 1125 (footnotes omitted). The second passage of the arbitrator’s opinion referred to reads as follows: ‘The same principle which subjects the acts creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of the law.’ Island of Palmas Case (Netherlands/United States), 2 RIAA 829, 4 April 1928, at 845.

For the origins and scope of the doctrine of inter-temporal law also in connection with customary law, see Elias 1980, 285 ff.

As opposed to Articles 53 and 64 VCLT, which can be deemed as forming part of the bulk of customary law that was codified by the Vienna Convention, Article 66 VCLT is not declaratory of customary law, as pointed out by the ICJ in Armed Activities on the Territory of the Congo, para 125. This consideration implies that the application of Article 66 VCLT is trumped by the non-retroactivity of the Vienna Convention enshrined in Article 4 VCLT (with respect to treaties concluded prior to the entry into force of the Vienna Convention for the states at stake). It goes without saying that Article 66 VCLT is concerned with a specific effect of jus cogens norms, namely that ascribed to the realm of treaty law. Within such domain, however, the language of Article 66(a) VCLT encompasses any dispute related to the interpretation or application of Articles 53 and 64 VCLT. Cf. Rwanda’s view that not any dispute regarding contravention with jus cogens falls within the purview of Article 66 VCLT. See, Armed Activities on the Territory of the Congo, Judgment on Jurisdiction and Admissibility, para 123.

Draft Articles on the Law of Treaties with commentaries, at 1122–1123.

Ibid.

Binder 2008, at 333. Addressing early sceptical concerns revolving around the principle of consent underlying treaty law vis-à-vis jus cogens, see Verdross 1966, at 60 ff. (in relation to Schwarzenberger and others position).

Dörr and Schmalenbach 2012, at v (pointing out the relevance of drawing an integral interpretation which combines the elements of treaty law and traditional views in tandem with dynamic practice fostering the development of the law).

Refering to such an exemplary case, see Ventura 2015, at 344.

Binder 2008, at 333.

It may be noted that the first proposal of SR Waldock in 1963 within the framework of the work of the International Law Commission leading to the drafting of the Vienna Convention, provided for separability of treaty provisions even in the event of breaches of jus cogens. See, Odendahl 2012, at 762, para 26, n. 73. Villiger also points out that the International Law Commission originally envisaged the applicability of the separability regime in connection with Article 53 VCLT. See Villiger 2009, at 569, n. 56.

It may be recalled that this was the case in Aloeboetoe et al. v. Suriname, where the entire treaty was deemed to be in conflict with jus cogens superveniens. Aloeboetoe et al. v. Suriname, para 57. As opposed to very old treaties like the one involved in the case, which dated back to 1762, it is perhaps more likely to encounter scenarios of treaties embracing a relative conflict with jus cogens superveniens.

Binder 2008, at 333 (with further references as to the critique posed with respect to the overreaching interpretation concerning treaty invalidity).

Ibid.

Odendahl 2012, at 756, para 9.

Ibid., at 755, para 6.

Odendahl, at 756, para 9, n. 27 (referring to Villiger).

The proposal had been tabled and supported by the US Delegation, see Odendahl 2012, at 760, para 19.

The Report on Fragmentation and Diversification in International Law acknowledged, although in the context of the discussion on intertemporality, that ‘no legal relationship can remain unaffected by time.’ See International Law Commission, Fragmentation of international law: difficulties arising from the diversification and expansion of international law, Report of the Study Group of the International Law Commission, 58th session, UN Doc. A/CN.4/L.682, 13 April 2006, para 476.

Robinson and Ahmed Haque 2011, at 143.

As pointed out by Kritsiotis, Vattel admitted the need to conceive the enforcement of international law beyond the bilateral state relations structure. Kritsiotis 2012, at 247.

Kritsiotis 2012, at 267.

Jurisdictional Immunities of the State, Dissenting Opinion of Judge Yusuf, para 58. Hernández points out that international jurisprudence ‘possesses a centrifugal normative force’ as it captures not only a wider spectrum of attention but also adherence mainly due to the particular position of international judiciary within the legal system which distinguishes international jurisprudence from other forms of interpretative activity. The author poses a further caveat as to the effectiveness of interpretative authority which relies on persuasive argumentation capable of reaching a wider audience of international society. See Hernández 2015, at 166, 168 and 180.

Along the same line, Bianchi refers to the rhetoric of jus cogens and the difficulty of relying on the notion for sweeping away lower conflicting norms. Bianchi 2008, at 501.

Cançado Trindade draws attention to the fact that the ICJ has to limit itself to settle the dispute by addressing only what the parties what put before it. Cançado Trindade 2014, at 18.

Cançado Trindade further points out that in interpretation itself or even in the search of the applicable law there is space for judicial creativity, independently of the arguments advanced by the contending parties. Ibid., 2014, at 18. Also advocating for the development of a more reflexive judicial practice aiming at fostering the enforcement of jus cogens norms and the consequences of its breach, see Mik 2014, at 92.

Cançado Trindade stresses the pressing need of further jurisprudential developments in the matter of reparation and provisional measures. Cançado Trindade 2014, at 30.