Analysis on the Legal Definition of Jus Cogens Provided in Article 53 of the Vienna Convention on the Law of Treaties
| DOI | http://doi.org/10.1177/00208817221136375 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Research Articles |
https://doi.org/10.1177/00208817221136375
International Studies
59(4) 315 –335, 2022
© 2022 Jawaharlal Nehru University
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DOI: 10.1177/00208817221136375
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Research Article
Analysis on the Legal
Definition of Jus Cogens
Provided in Article 53
of the Vienna Convention
on the Law of Treaties
Hui-Chol Pak1,2 , Hye-Ryon Son1 and
Son-Gyong Jong1
Abstract
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’.
Keywords
Jus cogens, general international law, international treaty, international custom,
International Law Commission
2 Korean International Trade Arbitration Committee, Pyongyang, DPR Korea
Corresponding author:
Hui-Chol Pak, Kim Il Sung University, Ryongnam Dong, Taesong District, Pyongyang, DPR Korea.
E-mail: hc.pak0101@ryongnam.edu.kp
1 Department of International Law, Faculty of Law, Kim Il Sung University, Pyongyang, DPR Korea
316 International Studies 59(4)
Introduction
The concept of jus cogens, which literally means ‘compelling law’ (Hossain,
2005, p. 73), is rooted in Roman law. In ancient Rome, law was divided into jus
strictum (strict law) and jus dispositivum (voluntary law). While parties conducting
legal transactions such as concluding contracts were allowed to disregard rules of
jus dispositivum, they had to comply with jus strictum since otherwise their legal
actions would be void or at least not completely valid (Frowein, 2012, p. 443). In
a word, in Roman law, jus strictum referred to legal norms that could not be
changed by arrangements of private entities (Mik, 2014, p. 28).
The concept of jus strictum in Roman law attracted scholarly attention in the
Middle Ages by some international jurists such as Francisco Victoria, Hugo
Grotius, Christian Wolf and Emerich de Vattel. In ‘De Jure belli ac pacis’ (edition
of 1758), Grotius referred to the dual characteristics of voluntary law as ‘jus
humanum vel divinum’ and noted that the latter was necessarily jus strictum. The
index of the book has 15 entries under ‘jus strictum’ (Frowein, 2012, p. 443).
Other jurists also referred to certain rules superior to the customary or treaty-
based rules of international law in their writings (Kadelbach, 2006, p. 21).
Of course, the sources of peremptory norms of international law were different
for the authors in the Middle Ages. While Grotius and Wolf based on rationality,
Victoria’s understanding of natural law was religious. One of the similarities of
these doctrines is that the ‘source is transcendental’ (Gülgeç, 2017, p. 83).
Although the authors recognized the existence of jus strictum as in Roman law,
that is, compelling rules, the concept was not named jus cogens.
Since the 19th century, when slavery and slave trade were banned and
international humanitarian law such as jus in bellum developed, new approaches
to jus cogens began to emerge. According to these, the peremptory effect of the
‘universally recognized principles’ of international law that invalidated any
inconsistent treaty was a ‘unanimously recognized customary rule of
international law’ (Jennings & Watts, 1992). Oppenheim, an international law
publicist, noted that a treaty providing for piracy is invalid as it is not in
conformity with the ‘universally recognized principles of international law’,
thus recognizing the existence of the concept of jus cogens (Jennings & Watts,
1992, p. 258). The concept was also endorsed in judicial contexts, for example,
in the decision of the French–Mexican Claims Commission in the 1928 Pablo
Nájera Case, and by Judge Schücking of the PCIJ in the 1934 Oscar Chinn Case
(Byers, 1997, pp. 113–114).
With the Second World War as a momentum, jus cogens attracted considerable
attention of international law practitioners and academics worldwide. Through
the Second Word War, the international community keenly realized that it would
be impossible to maintain global peace and security without establishing the
principles of international law which protect the most important values and
common interests of the community. Such principles reflecting the core value and
common interests of states were none other than norms of jus cogens (Kolb, 2015,
p. 4), which included inter alia prohibition of aggressive war, use or threat of
force, grave human right infringement and so on. In response to the unanimous
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