Identification Criteria of Jus Cogens Norms in International Law

Abstract

The article examines the positions of leading scholars on the identification of imperative norms of international law, discusses critical remarks that focus primarily on the difficulties connected with such identification. Trying to codify the concept of jus cogens in international law, the Commission itself acknowledged that the wording of the article was not so straightforward as there was no simple criterion by which a general rule of international law could be defined as having the character of jus cogens. Moreover, most of the general rules of international law are not of this nature, and therefore States can evade them by concluding treaties. Having considered the general definition of jus cogens in the Vienna Convention, it can be argued that the rule of international law can be ‘raised’ to the status of the rule of jus cogens – the imperative rule of international law – if the latter meets all the criteria. An important criterion worth noting is that imperative rules protect the interests of the whole international community: all imperative rules protect the interests of community, but not all public interests will be protected by the rules of jus cogens. The next criterion, closely related to the previous one, is that jus cogens rules protect the most fundamental ethical values of the international community, and one more – the absolute nature of the norm. But, in fact, the jus cogens category itself has more authority than its specific content. Despite the fact that none of the documents contains a comprehensive list of rules that should be considered imperative, the article provides a preliminary classification of non-derogation rules in order to illustrate some of the most obvious and applicable jus cogens norms for indicating in these examples the general nature and scope of the rule contained in Article 53. Key words: jus cogens norms; imperative norms; international law.