28 May The ILC takes up Jus Cogens
On May 27, 2015 Mr. Dire Tladi of South Africa was appointed Special Rapporteur for a new topic on the International Law Commission’s agenda: jus cogens. The progressive development and codification of jus cogens principles marks a significant step forward. For many years it was considered, as Ian Brownlie once quipped, “like the car that never left the garage.” The ILC’s syllabus, available here, suggests a bright new future lies ahead.
The scope of the Commission’s inquiry is likely to focus on the following elements: the nature of jus cogens; requirements for the identification of a norm as jus cogens; an illustrative list of norms which have achieved the status of jus cogens; consequences or effects of jus cogens.
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I’m really glad to see that the ILC is taking up this subject. It’s insufficiently developed and understood.
In my view, the area is underdeveloped because of the natural law origins of the concept and the unwillingness of international courts to go beyond the traditional positivist thesis. The ILC’s comments in the Annex here: http://legal.un.org/ilc/reports/2014/english/annex.pdf, at para. 14 are enough to show that the ILC is engaging in a certain degree of revisionism if it considers jus cogens to have its basis in the consent of states.
By sustaining this myth they will in fact ‘cool down’ the normative aspects of the doctrine. The issue should continue to be developed organically by international courts and tribunals instead.