Norms Of General International Law Research Articles

THE UN ILC’S DRAFT CONCLUSIONS ON THE PEREMPTORY NORMS OF GENERAL INTERNATIONAL LAW: THE TALE OF THE ANNEX

This paper examines the implications of the General Assembly's failure to adopt a resolution on the International Law Commission's Draft Conclusions on Peremptory Norms (“Draft Conclusions”) during its seventy-seventh session. While the non-decision does not affect the legal status of the Draft Conclusions, it raises questions about its reception and the underlying reasons for the lack of resolution adoption. The inclusion of an Annex with a non-exhaustive list, particularly addressing the right to self-determination, led to opposition from a subset of States. Despite the strong pedigree of the norms in the Annex, dissenting voices, primarily questioning the status of certain norms, played a pivotal role in the non-decision. This paper contends that the dissenters' success in preventing the adoption of a resolution could prompt the International Law Commission to exercise greater caution in its future work. The Commission may become more inclined to avoid addressing sensitive issues, potentially leading to a tendency to seek the lowest common denominator in its outputs. The analysis delves into the potential impact on the Commission's approach and the broader implications for the development and acceptance of peremptory norms of general international law.

Revitalizing the International Law Discourse on the Prohibition of Maritime Piracy: Voices from International Law Commission’s Work on Peremptory Norms of General International Law (Jus Cogens)

The International Law Commission (ILC) is tasked with the codification and progressive development of international law. Recently, the ILC submitted to the United Nations General Assembly (UNGA) in its 73rd session ‘Draft Conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’. The report holds significance as the concept of the jus cogens has been shrouded in mystery since its inception in the Vienna Convention on the Law of Treaties (VCLT) in 1969. The Draft Conclusion 23 (non-exhaustive list) identifies eight norms (annex) fulfilling the requirement of jus cogens. The ILC clearly states that “…the inclusion of the list in the annex in no way precludes the existence of other norms that may have a peremptory character or the emergence of other norms in the future having that character.”[1] Thus leaving space for the inclusion of fresh norms through subsequent studies. Nonetheless, the ILC provided the techniques to identify peremptory norms under Draft Conclusions 4 to 9. Through this article, the author argues that the prohibition of piracy has matured into a jus cogens norm. This is done by applying the techniques formulated by the ILC in its recent report. Although there are several writings on the prohibition of piracy as customary international law, it has received scant attention in the context of the jus cogens, and the author intends to fill this lacuna. This study assumes relevance as States increasingly adopt domestic legislation to combat piracy.

The crisis of pluralism in the context of the weakening of universal law

The global society has been transitioning through a crisis period for a while. It has been disintegrating and fragmenting in different ways, on different basis and under the impact of different causes. One important factor of integration of the global society is the norms of general international law, named here the universal law. In this paper we pay special attention to the crisis of universal values and the idea of pluralism and peaceful coexistence of different cultures and civilisations. This crisis might have very negative effects on the global society because of the lack of respect towards the idea of pluralism and the lack of minimum global unity make the idea of universal law as the basic regulatory frame of the global social relations impossible.

BRICS Expanding in the Light of the Principles of International Law

Introduction. Starting from January 1, 2024, Argentina3, Egypt, Ethiopia, Iran, Saudi Arabia and the United Arab Emirates should acquire membership of the alliance with the former acronym “BRICS” due to the decision adopted by its XV Summit held on August 22–24, 2023. According to one of the official acts classified as a guide for Russian National Policy in International Affairs, namely the “Concept of Russia’s Participation in BRICS”, approved by the President of the Russian Federation back in 2013, BRICS is to be deemed as a valid tool for strengthening the interstate cooperation. Taking into account other dimensions, it is necessary to develop a comprehensive strategy for cooperation between the alliance countries and define mutually agreed principles of partnership. Theoretical Basis. Methods. The research provides the analysis of the doctrinal positions of the most qualified domestic and expatriate publicists in international law, effective international treaties and international legal acts of the United Nations, official documents (declarations) of the annual BRICS summits, materials of the UN International Law Commission regarding its papers on the topic “Peremptory norms of general international law (jus cogens)”, outcome of the International Court of Justice practice as of the main judicial organ within the United Nations. In the course of performing the research, a number of general and particular scientific methods of cognition were used, including methods of systemic, structural and functional analysis, formal logic, deduction and induction, the method of comparative law, formal legal analysis and historical retrospective approach. The latter are especially productive in the study of the genesis and evolution of the concepts of “principle” in international law, “international organization”, integration, “paraorganization”, “multipolar world”, etc. Results. Both the BRICS emergence and expanding stand as direct challenge to such an international order, which proceeds from the inviolability of the existence of a single “decision-making center” (i. e., the United States and its satellites) as its core basis. In this aspect, resultant from the outcome of the XIV and XV summits held in 2022 and 2023, as well as of a new configuration of multilateralism previously initiated by China in Johannesburg (July 2018) for states that expressed ambition to cooperate with BRICS (PartNIR – “Partnership in the field of a new Industrial Revolution”), in the functioning of BRICS have been developed atypical models for involving third countries into partnership, including interaction with the countries of the region of the state chairing the group, which is carried out within the “BRICS-outreach” format. In light of the above, the study of such aspects pertaining to the theory and practice of international law as the application of the basic principles of international law and jus cogens norms to such cooperation in order to implement multilateralism, as well as the development of special principles of cooperation within the framework of BRICS should be raised to the rank of a specific subject of analysis. Discussion and Conclusion. In the course of the research, certain theses were formulated which relate to the analysis of current relationships of the “five” – Brazil, Russia, India, China and South Africa, accompanied by the assessment of the prospects for the forthcoming future in cooperation of the alliance under new formats. Thus, within the framework of BRICS, preference is given to multilateral or bilateral agreements, as opposed to the institutionalization (which involves coordinating the relationships of the involved parties by creating an international organization/institution). The identification of common features with universally widespread forms, on the one hand, and the distinctive properties of the international legal instruments used by the BRICS, on the other one, in no way deprives the analyzed segment of interstate cooperation of the “cementing” elements inherent to the entire system of international law, which include “basic principles”, “peremptory norms of general international law (jus cogens)”, as well as sectoral and special principles of legal regulation of interstate (“inter-governmental”) public relationship.

ZLOČIN GENOCIDA U PRAVU O ODGOVORNOSTI / THE CRIME OF GENOCIDE IN LAW OF RESPONSIBILITY

The paper deals with the issue of the responsibility of the main subjects of international law for grave breaches of obligations arising from the imperative norms of general international law in relation to the commission of the crime of genocide. The focus of this paper is in certain aspects of the relationship between individual criminal responsibility and the international responsibility of States and international organizations, which should be interpreted as two separate systems of responsibility in international law. Each system has its own special fundaments, features and characteristics. Consequently, the starting point is that the responsibility of States for genocide does not depend on the responsibility of individuals for the crime, although the International Court of Justice has made extensive use of the conclusions of the chambers of the International Criminal Tribunal for the former Yugoslavia. (Judgment from 2007). The paper therefore analyzes the question of the existence of a theoretical legal possibility for the so-called indirectly proving the responsibility of States (and international organizations) for genocide through a prior examination of the criminal responsibility of leaders, but also through proving a joint criminal enterprise for the purposes of committing the crime, or do these conceptions represent a starting point for the responsibility of the main subjects of international law or they are simply "proof" of the attribution of the act to a State? In this paper, we examine whether a joint criminal enterprise could be a reflection of a State plan and/or policy for committing the crime of genocide and how a collective plan or policy for committing that crime could be interpreted. After all, are they actually a dolus specialis of this crime, that is, whether a genocidal intent is manifested in a State precisely in a plan or policy?

International Legal Regulation of the Problem of Protecting the Environment from Radioactive Contamination

This article deals with modern actual international legal problems of ecological and nuclear law. In the frames of conducted research the special emphasis was made on, that in the modern interstate system is required a new codification of common international law norms, as well as initiation of the process of regional rulemaking.Aim. The main intention of research is search for solutions the problems protecting the environment from radioactive contamination in the context of increasing the effectiveness of the mechanism of international legal regulation in the epoch of modern international relations.Tasks. To determine the relevance and specificity the actual international legal problems of protecting the environment from radioactive contamination in the context of increasing the effectiveness of the mechanism of international legal regulation in the 21th century.Methods. Within the framework of this study, using the methods of studying normative legal acts and international legal doctrines, as well as content analysis, the features of the functioning of the mechanism of international legal regulation in the field of environmental protection from radioactive contamination are revealed.Results. During the study, the author concludes, that in the light of today’s threats and challenges, it is necessary to try to develop legally significant ways out of the crisis associated with solving international legal environmental problems of preventing nuclear damage, as well as eliminating and reducing the negative consequences of its impact on the state of the natural environment. On of the justified ways to solve threes problems is the reform of international legal consciousness in general and in the areas of international environment law and nuclear law, in particular. In the modern interstate system, it seem that a new codification of the norms of general international law is to required, as well as the initiation of a process of regional law-making.Conclusion. Summing up the results of the study, the author of investigation gives his findings and conclusions regarding the resolution of these problems in this area of international legal regulation. In particular, the article determines the validity of the assertion that in the context of modern threats and exports to international peace and security in the 21st century, a qualitative renewal of international legal consciousness, its enrichment and nourishment with new scientific ideas and well-thought-out concepts that can bring international law out of crisis since the legal consciousness that exists today does not meet modern realities and, relying on it, it will be extremely difficult to ensure the effectiveness of the well-coordinated work out of international interstate system.

What do jus cogens norms do for the international community?

This paper aims to delve into the qualities and content of norms of general international law classified as peremptory (jus cogens). To do so, three questions will be answered: (i) how does jus cogens arise, (ii) how is jus cogens changed and eliminated and (iii) what is jus cogens “utility”? The first question will be answered by adopting a two-stage formal criterion, based on the provisions of the Vienna Convention on the Law of Treaties. In this section, it will be demonstrated that jus cogens may have trivial content. Next, it will be argued that the process of modification and elimination of jus cogens depends to a great extent on the non-verification of the necessary conditions for its emergence. Finally, the “utility question” will deal with the alleged constitutionalist function of jus co- gens and its relevance, namely by limiting the power of the States and strengthening the rule of law.

САМОВРЯДНА ПАРАДИГМА У ФОРМУВАННІ ТА ФУНКЦІОНУВАННІ ДЕМОКРАТИЧНОЇ ПРАВОВОЇ ДЕРЖАВНОСТІ: ДО ВИЗНАЧЕННЯ ЗМІСТУ, РОЛІ ТА ЗНАЧЕННЯ

The article is devoted to the scientific and theoretical substantiation of the problem of determining the content, role and significance of the self-governing paradigm in the formation and functioning of a democratic legal statehood. In domestic jurisprudence, this topic is practically not studied. The authors connect the appearance of this problem with the factors of formation, development and improvement of the phenomenology of democratic legal statehood, when it is in these conditions that permanent para-democratic, meta-democratic processes of a tactical and strategic nature arise and intensify, as well as purely democratic tendencies are formed, determined by these processes, which permanently stimulate as a phenomenology of statehood, emphasizing its potential promising opportunities, as well as new forms of communicative interaction and rather productive cooperation of actors. At the same time, it is noted that the above processes are stimulated not only at the level of intrastate relations: a) the state, b) its public authorities, including local selfgovernment bodies, c) citizens who are simultaneously residents of certain territories of the state, i.e. residents-members relevant territorial communities; d) other natural persons with different legal status (foreigners, stateless persons, refugees, etc.), who are legally on the territory of a specific state and permanently residing within its borders, are also residents and members of the relevant communities, who are in subordinate, coordination and reorientational subordination among themselves within the limits of national constitutional and administrative law in the understanding of communication of subjects of public authority. They are quite clearly and sensibly manifested at the level of actors of international legal relations: a) sovereign states; b) international intergovernmental and intergovernmental organizations, which enter on the basis of the sovereignty and equality of their patrimonial and other states in a complex and multifactorial inter-subject interaction within intergovernmental structures on the basis of the fundamental principles and norms of general international law. It is noted that the self-governing paradigm is based on the managerial humanisticself-governing paradigm "human rights - municipal human rights - municipal person", which, firstly, acts as its content, and, secondly, acts as a strategic and basic direction in the formation and the functioning of a democratic legal state, because it is within the limits of the Ministry of Internal Affairs that a person: a) carries out his life cycle; b) realizes all his life aspirations, needs and interests, which are transformed into human rights; c) the constitutional and legal status of a person and a citizen is realized in the sphere of the Ministry of Internal Affairs. It is noted that the paradigm "human rights - municipal human rights - municipal person" has a clear and understandable management character, has a number of identifying features: A) subject-object composition, B) structural organization, C) national and international regulatory legal support and provision, which, in turn, endows it with: a) a theoretical basis; b) doctrinal justification; c) praxeological realization; d) value-methodological orientation; d') existential essence and objective-existential potential; e) regulatory definition; e) ascertaining the existence of managerial impulses; g) objectification of management actions; g) connotational content; h) communicative coordinate system; i) strategic narrative content.

Book Review of Dire Tladi (ed.), Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations

1. The book under review is Dire Tladi (ed.), Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations (Koninklijke Brill NV, 2021), ISBN 978-90-04-46411-7(hbk). The goal of the book is to provide a mosaic, using different views and approaches, of the debates and issues concerning peremptory norms of general international law (jus cogens) (p.1). 2. This book is created against the backdrop of the 2019 ILC’s Draft Conclusions on Peremptory Norms of General Law (jus cogens) adopted on first reading (hereinafter to be referred as Draft Conclusions), but its center mainly focuses on doctrinal and practical issues surrounding jus cogens, which together present a complete picture of the landscape of the law on peremptory norms (p.2). The contributors to this book are from divergent backgrounds to make for a colorful and inclusive mosaic of international law relating to peremptory norms (p.3). The innovative aspect of the book is its diversity, and it not only addresses a wide spectrum of issues related to jus cogens, but also illustrates a wide variety of views that exists on jus cogens (p.16).

Conceptual analysis of the legal definitions of "sport citizenship" and "constitutional citizenship" (international legal aspects)

This article is devoted to the study of certain issues of international and domestic sports legal relations, and, above all, to the analysis of the concepts of "constitutional citizenship" and "sports citizenship". The issues of naturalization of athletes, compensation for the costs of their upbringing by the federation that naturalized them are very complicated. In the modern world, the role of sport in public relations continues to increase, which entails the need for high-quality legal regulation of this sphere of public relations. The study of the issues identified by the authors and the formulation of proposals with practical application is of particular relevance and, especially, in the context of the complication of these legal relations by the legally ambiguous geopolitical processes taking place in the interstate system. Through the methods of analysis, synthesis and a systematic approach, the process of studying normative legal acts and legal doctrines takes place. The use of the comparison method makes possible to assess the prospects of applying doctrinal judgments regarding the further codification of international law in the field of sports. The main conclusions of the study are the following: - currently there are significant gaps in the field of legal regulation of legal relations involving professional athletes; - in the field of national and international legal regulation of sports citizenship issues, there is a certain connection, as well as differences in the concepts of "constitutional citizenship" and "sports citizenship"; - it is necessary to implement a new codification of the norms of general international law, a more complete involvement of the mechanism of regional law-making; - a full and high-quality implementation of national rule-making activities in the field of sports legal relations, complicated by a foreign element, is required. The scientific novelty of the research consist in the fact that the authors of the article have made conceptual proposals that can be applied in real life during the implementation of the law enforcement process in the field of sports. Special emphasis was placed on the need to comply with the norms governing the issues of sports citizenship to modern realities, since mass migration in the world contributes to the growth of the number of people receiving new both constitutional and sports citizenship, which results in the events that we can observe in both the field of general state policy and in the field of professional sports.

Peremptory Norms of General International Law (Jus Cogens) (Revisited) and Other Topics: The Seventy-Third Session of the International Law Commission

The International Law Commission (ILC) held its seventy-third session from April 18 to June 3 and from July 4 to August 5, 2022 in Geneva, under the chairmanship of Dire Tladi (South Africa). This session was the final one of the quinquennium, which originally would have occurred in the summer of 2021. (Since the Commission did not meet in the summer of 2020 due to the outbreak of the COVID-19 pandemic, the 2020 and 2021 sessions were postponed to 2021 and 2022 respectively.) Although the pandemic continued in 2022, the members faced fewer health risks and travel difficulties; consequently, the Commission held its session with almost all members physically present in Geneva, and just a few occasionally participating online by means of Zoom.

Analysis on the Legal Definition of Jus Cogens Provided in Article 53 of the Vienna Convention on the Law of Treaties

The 1969 Vienna Convention on the Law of Treaties is a fundamental treaty providing rights and obligations that states assume in the conclusion and implementation of treaties. Some of the provisions of the Convention, however, continue to divide the legal scholarship. One of them concerns the legal definition of jus cogens provided in Article 53 of the Vienna Convention on the Law of Treaties. The international community, particularly the International Law Commission, has exerted strenuous efforts for a long time to reach a consensus on jus cogens. Nevertheless, the legal definition of jus cogens is still open to varying interpretation among different countries and international publicists. In this light, the article analyses the legal definition of jus cogens in three aspects. First, the connotation of the concept ‘peremptory norms of general international law’ is assessed in terms of particular, general and universal international law. Second, it analyses some problems arising in understanding the non-derogability from and modifiability of jus cogens. Finally, the article discusses some issues regarding ‘acceptance and recognition’ of jus cogens by the ‘international community of states as a whole’.

The critique of the Westphalian peace narrative

The article studies perceptions of the Peace of Westphalia that were formed in the fields of international relations history and the general theory of international law as a result of conflicting doctrines, with some claiming the Westphalian treaties of 1648 are of universal significance for these scientific fields, and others, conversely, denying that these treaties had any sort of influence on the formation of a modern system of international relations and the formation of international law as a legal system. The article concludes that the treaties of the Peace of Westphalia does not actually contain many of the provisions attributed to them. These norms often arise only from their interpretation. However, the critics of the treaties’ significance for the history of international relations and their international legal regulationwho focused their attention only on the verbatim text of these documents while ignoring the historical conditions surrounding their development and adoption, failed to properly assess their impact. The Westphalian Congress was the first congress in world history that was pan-European in character. Its widely representative nature, the lengthy period of time during which it was held, the content of the treaties and the universally binding nature of their provisions, as well as the protocol rules, allow us to claim that the states of this world region started to identify themselves as part of a single pan-European international community. Moreover, the Congress also saw the creation, in a relatively short time, not only of treaties, but also of customary norms of general international law that were of fundamental importance for the formation of a new system of international relations. Despite the fact that most of the provisions of the Peace Treaty of Westphalia of 1648 havean applied nature, it is by no means an insignificant medieval treaty, the only virtue of which lies in it ending the Thirty Years' War. The Peace of Westphalia is an example of the first pan-European international treaty in world historywhich formulated a number of binding norms for all states of this part of the world. To sum up, the Westphalian Peace Treaty was, a historic breakthrough the creation of treaty norms of general international law, and therefore the it should be deemed a historical milestone in the creation of international law as a legal system.

Analysing the Relationship Between Peremptory Norms of General International Law (Jus Cogens) and Obligations (Erga Omnes)

The proposition that obligations erga omnes flow from peremptory norms of general international law (jus cogens) is generally accepted since no clear test for the identification and determination of obligations erga omnes exists. This article seeks to propose a tentative legal framework to govern the identification of obligations erga omnes, particularly for norms that have not reached the status of peremptory norms of general international law (jus cogens), or at the very least, determine erga omnes without placing reliance on whether the obligation in question arises from a norm with jus cogens status.

Prohibition of massive and serious pollution of marine environment as a jus cogens. Identification, legal bases and consequences in view of the recent work of the International Law Commission

Taking into account the progressive development of international law in recent decades relating to the protection of environment it is remarkable that until recently international courts and tribunals took a rather restrictive approach concerning reference to the hierarchy of norms. This is in stark contrast to international human rights law as some of its key rules have already been identified as jus cogens. Thus, drawing from these developments there is a need for recommencing the debate concerning the existence of peremptory norms relating to the protection of the environment. At the normative level allocating the jus cogens logic to this area can certainly bring the needed structure of community interest, instead of the reciprocal paradigm and consequently influence more strongly future normative development of this branch of law. The article evaluates whether specific obligations to protect the marine environment can be considered as a peremptory norm of general international law. The current work of the International Law Commission and discussion on its reports in the United Nations General Assembly Sixth Committee are used as tools for appraisal of the state of the law in this respect. It is undeniable, that obligations to protect the marine environment reflect fundamental values of the international community, which are universally applicable. As a result, the normative weights of these obligations clearly advocates for the recognition of peremptory norm status of particular prohibitive rules concerning protection of the marine environment.

The Work of the International Law Commission in Its Seventy-First and Seventy-Second Sessions: COVID, Cancellations and Much More

This contribution describes the work of the UN International Law Commission (ILC) during its seventy-first and seventy-second sessions. Due to the ongoing COVID-19 pandemic, the work of the Commission over the last three years has been severely hampered, yet the Commission was still able to produce significant work. In the seventy-first session, the Commission adopted, on first reading, the Articles on the Prevention and Punishment of Crimes against Humanity. It also adopted two instruments on first reading, namely the Draft Conclusions on Peremptory Norms of General International Law and the Draft Principles on the Protection of the Environment in Relation to Armed Conflict. In the seventy-second session, the ILC adopted two first-reading texts, namely the guidelines on the protection of the atmosphere and the Guide to Provisional Application of Treaties. The Commission was also active in the relation to new topics. In the seventy-first session it placed on its current agenda, the topic sea-level rise in relation to international law. On its long-term programme of work, it placed two topics, namely piracy and robbery at sea under international law and reparation to individuals for gross violations of international human rights law and serious violations of international humanitarian law. In the seventy-second session it placed on its agenda the topic subsidiary means for the determination of rules of international law.

Aggression and Responsibility Under International Law – A Case of the Aggression of the Russian Federation Against Ukraine

The aim of this article is to address the relationship between aggression, conceived both as an act of a state and as a crime, and responsibility for it under the law in the light of the Russian aggression against Ukraine. The Russian Federation as a state committed an act of aggression as the internationally wrongful act for which it is responsible under customary international law, while members of its authorities, headed by the president, perpetrated a crime of aggression, as defined in Article 8 bis of the Rome Statute of the International Criminal Court. The author argues that as far as the act of the Russian aggression is concerned not only Ukraine but also other states may make Russia responsible for its act of aggression. As the Russian Federation seriously breached of obligations under peremptory norms of general international law any state may claim from Russia, first, cessation of the internationally wrongful acts, and assurance and guarantees of non-repetition and, second, performance of the obligation of reparation in the interest of Ukraine or of the beneficiaries of the obligation breached. Although international law has not traditionally recognized individuals as victims of the crime of aggression, one should have in mind that not only states but also individuals are victims of the aggression. This is why individuals as victims of the Russian aggression may, even should, participate in the future regimes of criminal responsibility and reparation in the context of prosecutions for this crime. But it will be depended on the determination and good will of the members of the international community and, obviously, on the indictment of suspects. The author claims that a full restoration of peace in Ukraine will not take place if Russia is not held responsible for its wrongful act of aggression and the perpetrators of crimes committed during this armed conflict, including the crime of aggression, are not brought to criminal responsibility.

An Unlawful War

Russia's invasion of Ukraine violated the prohibition of force contained in the United Nations Charter and the peremptory norm of general international law prohibiting aggression. The invasion was not an exercise of individual or collective self-defense, or a humanitarian intervention, as Russia variously claimed. The United Nations General Assembly rejected all such claims when 141 member states voted to deplore “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter” as well as “the involvement of Belarus in this unlawful use of force against Ukraine.” This essay traces the legal implications of Russia's act of aggression, and its violations of international humanitarian law, through international criminal law, international human rights law, and the law of state responsibility. It argues that Russia violates the human rights of every person it kills, and that states are permitted and may be required to provide military assistance to Ukraine and impose economic sanctions on Russia. As Ukraine fights for its survival as an independent state, international law remains both a moral guide and a strategic asset.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

AGGRESSION AND STATE RESPONSIBILITY AT THE INTERNATIONAL CRIMINAL COURT

AbstractThe definition of the crime of aggression in Article 8 bis of the Rome Statute of the International Criminal Court (Rome Statute) stipulates that a State act of aggression is a material element of the crime, suggesting an intrinsic link between individual criminal responsibility and State responsibility for aggression. This article argues that the Rome Statute provides a legal basis for the International Criminal Court (ICC) to determine State responsibility for aggression when considering the material elements of the crime of aggression, which has important practical and conceptual implications for the law of international responsibility. Although the content of State responsibility flows automatically from the breach of the obligation, it is argued that a finding of aggression pursuant to Article 8 bis of the Rome Statute may be considered as a form of satisfaction for the purposes of Article 37 of the 2001 ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001 ILC Articles). Furthermore, the material element of the crime in Article 8 bis of the Rome Statute requires the act of aggression by its character, gravity, and scale to constitute a manifest violation of the Charter of the United Nations, in line with the nomenclature used within the 2001 ILC Articles regarding serious breaches of obligations arising from peremptory norms of general international law (jus cogens). The article considers the important role that the ICC may play in relation to serious breaches of the jus cogens obligation to refrain from an act of aggression.