Chapter VI. The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: an Obligation without Real Substance?

Abstract

The Articles of the International Law Commission (ILC) on the Responsibility of States for Internationally Wrongful Acts provide in Article 41(2) that 'no State shall recognize as lawful a situation created by a serious breach' of an obligation arising under a peremptory norm of general international law. This chapter examines the content of the obligation 'not to recognize as 'lawful' a situation created by a serious breach of a jus cogens obligation, and the practical difficulties that may arise in complying with this obligation. It also asks whether an obligation of non-recognition makes legal sense in cases of serious breaches of jus cogens obligations, other than those resulting in the creation of a new State or the acquisition or occupation of territory. Keywords: International Law Commission (ILC); jus cogens obligations; law of State responsibility; obligation of non-recognition