1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27). See in particular para. 190:

Id. at 100–01.

2 “It appears that from the theoretical viewpoint the most serious attempt to develop a positive law concept of jus cogens has been made by those supporters of that legal category who linked it with the notion of an international public policy (or, order).” Sztucki, J., Jus Cogens and the Vienna Convention on the Law of Treaties: A Critical Appraisal 63 (1974)Google Scholar.

3 See infra note 24.

4 1986 ICJ Rep. at 100, para. 190.

5 Henkin, L., How Nations Behave 129 (1968)Google Scholar.

6 This view of the will of the Court in aspiring to shape a world public order can be seen in the exchange between Judge Elias and Judge Schwebel. In his separate opinion, Judge Elias expressed regret that Judge Schwebel had used in his dissent an unofficial account of an interview given by Judge Elias, who at the time was President, asserting a public order role for the Court in its decision on jurisdiction on Nov. 26, 1984. Confirming the gist of the quotes used, Judge Elias recognized but made no attempt to correct the slant given his alleged remarks by the outside source or that of the “comments of outsiders.” 1986 ICJ Rep. at 179–80 (Elias, J., sep. op.). For the quotes used by Judge Schwebel, see 1986 ICJ Rep. at 315, para. 115 (Schwebel, J., dissenting).

7 See the skepticism of Schwarzenberger, especially, note 13 infra.

8 Akehurst, M., A Modern Introduction to International Law 40–41 (5th ed. 1984)Google Scholar; Brownlie, I., Principles of Public International Law 512–13 (1979)Google Scholar; Elias, T., The Modern Law of Treaties 177 (1974)Google Scholar; Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Recueil Des Cours 1, 125–26 (1957 II); Kelsen, H., Principles of International Law 322–23 (1952)Google Scholar: Mcdougal, M., Lasswell, H. & Chen, L., Human Rights and World Public Order 338–50 (1980)Google Scholar; Mcnair, A., The Law of Treaties 213–15 (1961)Google Scholar; Rozakis, C., The Concept of Jus Cogens in the Law of Treaties 19 (1976)Google Scholar; Schwelb, Some Aspects of International Jus Cogens as Formulated by the International Law Commission, 61 AJIL 946 (1967); Sinclair, I., The Vienna Convention on the Law of Treaties 129 (1973)Google Scholar; Suy, The Concept of Jus Cogens in Public International Law, in 2 Carnegie Endowment for International Peace, Papers and Proceedings, The Concept of Jus Cogens in International Law 17 (1967); Tunkin, International Law in the International System, 147 Recueil des Cours 1, 98 (1975 IV); Tunkin, Jus Cogens in Contemporary International Law, 1971 U. Tol. L. Rev. 107; Verdross, Jus Dispositivum and Jus Cogens in International Law, 60 AJIL 55 (1966); and Whiteman, Jus Cogens in International Law, with a Projected List, 7 Ga. J. Int’l & Comp. L. 609 (1977). See the courses by Gómez Robledo, Alexidze and Gaja in 172 Recueil Des Cours 9, 219 and 271, respectively (1981 III).

9 Article 53 of the Vienna Convention on the Law of Treaties, based on the work of the ILC, states that a “treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” It then defines such a norm, “for the purposes of the present Convention,” as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, UNTS Regis. No. 18, 232, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969).

The Restatement of Foreign Relations Law of the United States (Revised) also states that a treaty is void if it conflicts with a peremptory norm of general international law at the time of its conclusion. Restatement of Foreign Relations Law of the United States (Revised) §331(2) (Tent. Draft No. 6, vol. 2, 1985) [hereinafter cited as Revised Restatement]. Comment k, §102 provides a general explanation:

Id., vol. 1 at 33.

10 See Art. 53, Vienna Convention on the Law of Treaties, supra note 9.

11 The revised Restatement, supra note 9, takes the position that the rules of §702 defining the customary international law of human rights “are peremptory norms (ius cogens), and an international agreement that would violate them would be void.” That section contains a list of applicable offenses. Id. §702 and comment l, vol. 1 at 468 and 475.

12 Thus, the concept of jus cogens requires the distinction between international delicts, where sovereign states may breach an obligation and accept the legal consequences of state responsibility, and international criminal conduct, where no derogation from the norm is permissible. See Draft Articles on State Responsibility, Art. 19, [1976] 2 Y.B. Int’l L. Comm’n, pt. 2 at 73, 120, UN Doc. A/CN.4/SER.A/1976/Add.1.

18 Schwarzenberger, International Jus Cogens?, 43 Tex. L. Rev. 455 (1965):

Id. at 467. Schwarzenberger thinks that the ILC adopted “a draft article, perfectly adapted to the idiosyncracies of a hypocritical age,” with progressive trappings of an unrealistic function and a “means of undermining the sanctity of the pledged word.” Id. at 477–78. In his treatise, he explains that “jus cogens, as distinct from jus dispositivum, presupposes the existence of an effective de jure order, which . . . in the last resort, can rely on overwhelming physical force.” G. Schwarzenberger, A Manual of International Law 29–30 (1967); see also Schwarzenberger, The Problem of International Public Policy, 18 Current Legal Probs. 191 (1965).

An even more compelling skepticism is voiced by Professor Weil, Prosper, Towards Relative Normativity in International Law?, 77 AJIL 413 (1983)CrossRefGoogle Scholar (danger that jus cogens will lead to de facto oligarchy imposing its own ideology to negate the pluralism of international society). For the most recent warning, see Meron, On a Hierarchy of International Human Rights, 80 AJIL 1(1986).

Guggenheim was initially opposed to the concept, but later adopted a more flexible view. 1 P. Guggenheim, Traité de droit international public 128 (2d ed. 1967). See also Mann, The Doctrine of Jus Cogens, in Festschrift Ulrich Scheuner 399 (1973); J. Sztucki, supra note 2.

14 See Weil, supra note 13; J. Sztucki, supra note 2.

15 See Meron, supra note 13.

16 In addition to requiring that the peremptory norm be “accepted and recognized by the international community of States as a whole” (Art. 53), the Vienna Convention, supra note 9, provides the International Court of Justice with the significant function of determining whether a norm is peremptory before any treaty provision is nullified unilaterally by a state (Art. 66), no doubt to curtail the fear of undermining the stability of pacta sunt servanda.

17 I. Brownlie, supra note 8, at 515.

18 Commentary on the Commission’s draft Article 37 (treaties conflicting with peremptory norm) referred to the divided opinion—notably Schwarzenberger against, and Lord McNair for, adoption—but accepted completely McNair’s reasoning that the prohibition of the use of force under the Charter “presupposes the existence in international law of rules having the character of jus cogens. This being so, the Commission concluded that . . . it must take the position that today there are certain rules and principles from which States are not competent to derogate by a treaty arrangement.” Report of the International Law Commission to the General Assembly, 19 UN GAOR Supp. (No. 9), UN Doc. A/5509 (1963), reprinted in [1963] 2 Y.B. Int’l L. Comm’n 187, 198, UN Doc. A/CN.4/SER.A/1963/Add.1.

19 Sztucki is critical of the intellectual foundations of a positive law approach to jus cogens. J. Sztucki, supra note 2, at 66.

20 The ILC suggested, but decided not to include, examples of provisions that would make treaties void if violated: the UN Charter prohibitions on the use of force; norms against international crimes; rules for the suppression of slave trade, piracy and genocide; and norms protecting human rights and self-determination. See Report of the ILC, supra note 18.

21 See generally J. Sztucki, supra note 2, at 12–22.

22 See id. at 58–66.

23 Revised Restatement, supra note 9, vol. 1, § 102, Reporters’ Note 6, at 42. The reporters explain that it is not the Charter but the principles of the Charter that are jus cogens. This position, following McNair and adopted by the Court, opens the interesting possibility that even the Charter might be changed to conform to a new peremptory norm. See Weil, supra note 13, at 425.

24 In his survey of the jurisprudence of international tribunals, including the two World Courts, Professor Sztucki found 17 possible instances cited, but only 6 mention jus cogens or peremptory norms, and then only in separate or dissenting opinions. J. Sztucki, supra note 2, at 12–22.

25 1986 ICJ Rep. at 100-01, para. 190. The U.S. Counter-Memorial argued that “Article 2(4) of the Charter is customary and general international law,” citing the ILC’s report on the jus cogens article in the draft treaty on treaties, as well as well-known publicists: Professors Brownlie, Henkin, Baxter, Tunkin and Verdross, and Lord McNair. The United States argued that these principles are the “embodiment of general principles of international law,” as Nicaragua admitted, and that there is no other “customary and general international law” on which to rest a claim. United States Counter-Memorial (The Questions of the Jurisdiction of the Court to Entertain the Disputes and of the Admissibility of Nicaragua’s Application) 194–96 (Aug. 17, 1984).

26 [S]o far from having constituted a marked departure from a customary international law which still exists unmodified, the Charter gave expression in this field to principles already present in customary international law, and that law has in the subsequent four decades developed under the influence of the Charter, to such an extent that a number of rules contained in the Charter have acquired a status independent of it. The essential consideration is that both the Charter and the customary international law flow from a common fundamental principle outlawing the use of force in international relations. The differences which may exist between the specific content of each are not, in the Court’s view, such as to cause a judgment confined to the field of customary international law to be ineffective or inappropriate, or a judgment not susceptible of compliance or execution.

1986 ICJ Rep. at 96-97, para. 181 (emphasis added).

27 Compare the language of the Court’s opinion, id., with that of the commentary of the International Law Commission in its work on treaties, supra note 18.

28 President Singh states: “[T]his is not only the correct approach . . . , but also . . . it represents the contribution of the Court in emphasizing that the principle of non-use of force belongs to the realm of jus cogens, and is the very cornerstone of the human effort to promote peace in a world torn by strife.” 1986 ICJ Rep. at 153 (Singh, J., sep. op.).

29 “[T]he non-use offeree as well as non-intervention—the latter as a corollary of equality of States and self-determination—are not only cardinal principles of customary international law but could in addition be recognized as peremptory rules of customary international law which impose obligations on all States.” 1986 ICJ Rep. at 199 (Sette-Camara, J., sep. op.).

30 Just as predicted by Schwarzenberger, Sztucki and others. See supra note 13.

31 Reisman, Has the International Court Exceeded its Jurisdiction?, 80 AJIL 128, 134 (1986) (quoting Elihu Root on the distinction between impartial adjudication by consent and the conduct of political relations in important matters through diplomatic negotiation, and the skepticism by states of the tendency of international judges to be drawn into the tradition of diplomacy).

32 Weil, supra note 13, at 441.

33 I. Sinclair, supra note 8, at 131.