Murase Comments on Jus Cogens at ILC (2016-2019)
Note: I made comments on the topic of jus cogens four times over the years at ILC, which are reproduced below. These are the original manuscripts. They are reproduced in the ILC summary records, which are however shortened versions of the original statements. I often had to repeat what I had said in previous years, and therefore some parts are repetitious. Footnotes had to be inserted in the body of the text for technical reasons of the blog.
1. Murase comments on Jus Cogens (4 July 2016) (A/CN.4/SR. 3314)
Before I begin, I would like to welcome, most warmly, the participants of the 52nd session of the International Law Seminar. I myself was a participant of the Seminar in 1975, and my professional career in international law actually started from that seminar. I hope that this year’s participants will have the same valuable experiences as that I had some 40 years ago.
I would like to thank the Special Rapporteur, Professor Dire Tladi, for his excellent First Report and his oral introduction just now. It is indeed an impressive piece of scholarly work, and I would like to commend the Special Rapporteur’s treatment of this difficult topic by digesting the most highly qualified academic writings on the subject. The First Report has exemplified how the Special Rapporteurs’ reports should be generally.
However, I am puzzled over why the Report delimits the scope of this topic only to the “Law of Treaties” context, and why it does not deal with jus cogens’ meaning and function in the context of the “Law of State Responsibility,” which is one of the two main pillars of the topic. I raised thisquestion 3 years ago when the topic was discussed in the Working Group on the Long-term Program of Work. I don’t see how we can ignore the concept of jus cogens as it manifests itself in the Law of State Responsibility, which is distinct from its role in the Law of Treaties context.
My comments this afternoon are therefore focused on the scope of the topic, which I would like to offer in the spirit of constructive criticism. If the Special Rapporteur had considered that the concept of jus cogens is the same in both branches of international law, he would have had to discuss it in his Report, which unfortunately he didn’t. I don’t think that the legal nature, content and function of jus cogens are the same in the Law of Treaties and the Law of State Responsibility.
If that is the case, then, we will need to elaborate an integrated concept of jus cogens applicable to both branches of international law, and we will need to state in the scope conclusion that the topic we will be dealing with is not limited to the Law of Treaties. (Even for the Law of Treaties, we need to look into the Law of State Responsibility which clarifies the content of jus cogens and allows for an understanding of the difference between jus cogens in the context of treaty validity and erga omnes obligations arising from peremptory norms in the context of State responsibility. C. Olivier, “The Vienna Conventions on the Law of Treaties: a commentary” Oxford University Press (2011), p.1233).
It is rather unfortunate that there is no discussion in the Report on jus cogens as it is invoked in this latter context. I was surprised that the words “State responsibility” do not appear in the Report, except in the form of a passing reference in footnote 134. Chapter IV (The Historical Evolution of the Concept of Jus Cogens) and Chapter V Section 3 (Core Elements of Jus Cogens) of the Report overlook the relevance of State responsibility, which has been one of the major works of the International Law Commission.
The future plan of work does not include State responsibility. (In the first part of the discussion of the historical evolution of jus cogens, the “Pre-World War II Period,” there is no reference to the literature on peremptory norms in terms of State responsibility. (eg. E. Root (1915) introduced two kinds of wrongs, those that affect only an injured state and those that affect the whole community of states; if the wrong is of the latter type, every state is entitled or even bound to punish the State that committed the wrong.) Also, the second part, “Post-World War II prior to the adoption of the Vienna Convention on the Law Treaties,” ignores the ILC sessions on State responsibility.)
The First Report refers in paragraphs 43 and 48 to “the role of jus cogens beyond the Vienna Convention” (2nd line of para. 43), and “beyond treaty law” (the last line of para. 48), but the Report does not specify what is meant by these terms. [Incidentally, I am publishing a novel in a few weeks, whose title happens to be “Beyond Illusions.” I have specified the meanings of this phrase in a sub-title, “Love and Hope in the Kingdom of Ryukyu.”] I hope that the Special Rapporteur will indicate to us what he means by “beyond treaty law.”
Although the Special Rapporteur states in his Report that the consequences or effects of jus cogens will be addressed in subsequent reports, (First Report (A/CN.4/693), para. 4) the consequences that the Special Rapporteur has in mind appears to be limited to the Law of Treaties context. The effect of a breach of jus cogens rules is clear in the context of the Law of Treaties, as stipulated in Article 53 (and Article 64) of the Vienna Convention, which states that a treaty concluded in breach of a jus cogens norm is “void.” It only provides for the consequences of treaties concluded in breach of jus cogens, and does not provide for the consequences of jus cogens breaches themselves. Article 71 of the Vienna Convention provides for “elimination of the consequences” but it does not refer to State responsibility.
The consequences of the breach of jus cogens norms in the context of the Law of State Responsibility are quite different from those of the Law of Treaties. I believe that we need to clarify, at the outset, the content, role and effects of jus cogens in both contexts of the Law of Treaties and the Law of State Responsibility, on the basis of which we can determine the scope of the topic.
We all know that the draft articles adopted provisionally on the first reading in 1980 referred, in Draft Article 19, to “international crimes,” which have been considered as jus cogens norms. (For example, the present concept of jus cogens in the context of state responsibility has been developed from the concept of international crime (article 19 of the provisional first draft article). The Commission at its 50th session (1998) pointed out that there were no defined procedures nor distinctive consequences of international crime, noting also that there was concern about changing the terminology which had already gained international acceptance. (Report of ILC, 50th session, Doc. A/53/10)
The Articles on State Responsibility adopted by this Commission on the second reading in 2001 provides in Article 26 (Compliance with peremptory norms) that “ Nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.” Articles 40 and 41 provide for serious breaches of obligations under peremptory norms of general international law. Article 48 provides for obligations erga omnes and erga omnes partes for invocation of responsibility, by States other than injured States.
Erga omnes obligations refer to a “horizontal” expansion of State obligations, while jus cogens obligations denotes a “vertical” relationship of norms. Of course, not all erga omnes obligations are jus cogens obligations, but some may overlap. Article 50, paragraph (1) (c) refers to the jus cogens obligations as an exception to countermeasures. Finally, Article 54 is interpreted as recognizing a possibility of lawful countermeasure as a result of serious breaches of jus cogens norms.
We all know that the ILC Articles on State Responsibility provide for the secondary rules on the basis that a wrongful act has been committed, and they are not concerned with the primary rules of obligations of States under international law. However, the relevant provisions are premised by the existence of jus cogens obligations, the breach of which entails State responsibility.
I think we should bear in mind certain differences between the notion of jus cogens in the Law of Treaties context and in the Law of State Responsibility. The essential elements of the former are the concept of “hierarchy of norms” and “non-derogation” from the higher law. The notion of “hierarchy” here is used to mean that a higher law invalidates the lower law. In the context of the Law of State Responsibility, in contrast, the notion of jus cogens is simply a group of norms that are “fundamentally important,” and here the concept of “hierarchy of norms” to invalidate a treaty is not an essential component of jus cogens. It is rather the “primacy of norms” that is relevant in the context of State Responsibility.
Take a look at draft article 19 (3) of Ago’s draft articles on State Responsibility of 1980, which gave an illustrative list, and they are: aggression, self-determination, slavery, genocide, apartheid and massive pollution of the atmosphere and of the sea. These crimes were inserted as examples of jus cogens, not because there are higher laws but because they are critically important for the whole of the international community. While there is obviously no higher law as such that prohibits, for instance, massive pollution of the atmosphere, it is nonetheless recognized here as a jus cogens in the context of State Responsibility, simply because it is a very important norm in international law!
The Special Rapporteur cites a number of judicial decisions of international courts and tribunals in footnotes 146 to 153 and 187-188 that are relevant to jus cogens. However, there have been only two cases, Nuclear Weapons and Aut dedere aut judicare, where jus cogens were employed in part for the alleged invalidity of treaties under the Law of Treaties. (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para.83, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, ICJ Reports 2012, para.99-100.)
The other cases cited are all concerned with State responsibility in one way or another by accusing the conducts of the States that have allegedly committed genocide, torture, illegal use of force and other serious violations of jus cogens norms. They include: Cases concerning, Military and Paramilitary Activities in and against Nicaragua (1986), Case of concerning the Arrest Warrant (2000), Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), Case Concerning Armed Activities on the Territory of the Congo (2002, 2006), Jurisdictional Immunities of the State (2012), and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (2007 and 2015), among others.
(Apart from the question of invalidity of treaties (see the note above), the ICJ cases on jus cogens mainly refer to four issues: (1) Erga omnes obligation: Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium V. Spain) Second Phase, Judgment of 5 February 1970, ICJ Reports 1970, para. 33-34, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) preliminary objection, Judgment of 11 July 1996, para.31, Judgment of 26 February 2007, para. 147-166, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007, para. 147-184, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), ICJ Judgment of 3 February 2015, para. 87.
(2) State responsibility on the principle of non-recognition: the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, para.123, Military and Paramilitary Activities in and against Nicaragua (Nicaragua. v. United States), ICJ Reports 1986, para. 189, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Report, advisory opinion of 9 July 2004, para.159-160.
(3) violation of jus cogens does not affect on granting immunity: Case of concerning the Arrest Warrant, ICJ Reports 2000, advisory opinions and orders, judgment of 11 April 2000, para. 58, The case on Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), ICJ Reports 2012, para. 93, 95.
(4) jurisdiction (rule of consent to jurisdiction is different from jus cogens): Concerning East Timor (Portugal v Australia), Judgment of 30 June 1995, ICJ Reports 1995, pp.90, Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction of the Court and Admissibility of the Application, Judgment of 3 February 2006, ICJ Reports 2006, para 64,69,78,125.)
Another point related to the methodology is an “illustrative list” (First Report (A/CN.4/693), para. 3). To consider whether we include or exclude such a list, it is crucial to take the previous work of State Responsibility at the ILC into account. Under the Vienna Convention, neither article 53 nor 64 include specific examples of jus cogens. As I mentioned, the previous draft on State Responsibility adopted provisionally on the first reading included an illustrative list under draft article 19 (3), but the Commission decided not to include such a list on its second reading, which may give us an instructive lesson on this matter. (See also ILC Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (2006) lists the content of jus cogens in para. 33. (“The content of jus cogens. The most frequently cited examples of JS are prohibition of aggression, slavery, and the slave trade, genocide racial discrimination, apartheid, and torture, as well as basic rules of IHL applicable in armed conflict, and the right to self-determination. Others, [include?] those are accepted and recognized by the international community of states as a whole as norms from which no derogation is permitted.”)
In any event, I would suggest that the Special Rapporteur give further thoughts about the scope, and also the title of the topic. The title currently used is just “Jus cogens,” but I don’t think this is appropriate. In accordance with the Special Rapporteur’s current thinking, the title should be “Jus cogens in the Law of Treaties.” Since we already have a lot of commentaries on articles 53 and 64 of the Vienna Convention, we would end up writing a commentary on commentaries in this approach.
If we try to make our project a meaningful one, we would need to include the Law of State Responsibility, then the title would be “Jus cogens in International Law.” The Commission may wish to set up a Working Group to consider the scope of the topic. In any event, I believe that draft conclusions should be considered on the basis of the Special Rapporteur’s future report(s), which I hope discuss the Law of State Responsibility.
Along with a conclusion on scope of the topic, I think we need a conclusion on the definition of jus cogens so that we know what we are dealing with in this project. Conclusion 3 could be turned into a definition, as I will suggest in a moment.
With regard to the proposed draft conclusion 1 on scope, what we are concerned with is not “the way in which jus cogens rules are to be identified.” I think it is “the existence and content of the jus cogens rules” that we should be concerned with as a matter of scope. With regard to the word “identify or identification,” I am afraid that it is quite ambiguous, as I repeatedly mentioned in connection with the topic on customary international law. It is not clear whether “identification” is just an intellectual exercise of recognition or it includes a normative exercise of determination of the existence and content of a norm, and also interpretation and application of a rule. Conclusion 1, being modeled after article 53 of the Vienna Convention, should be entirely re-formulated if we include jus cogens in the context of State Responsibility.
Regarding conclusion 2: I think it is rather misleading in paragraph 1 to provide for jus dispositivum, and I don’t think that this paragraph is necessary. We should focus on jus cogens in this project. The discussion on jus dispositivum may well be explained in the commentary. Since paragraph 2 is in essence the same as Conclusion 3 (1), this paragraph should be merged with the latter. We can thus delete the whole of Conclusion 2.
Conclusion 3 (1) is circular. It would only makes sense as a “definition” of jus cogens, and so I believe that the title of Conclusion 3 should be changed to “Definition of jus cogens” rather than the “General nature of jus cogens norms.” Conclusion 3 (2) is problematic. What are the “fundamental values” of the international community? The same is true with the concept of public order or public policy. Where can we find them?! The expression “hierarchically superior” may be valid for jus cogens in the context of the Law of Treaties. As I mentioned earlier, jus cogens norms in the context of the Law of State Responsibility may not have an element of hierarchy, and may simply be the norms that are considered “specially important.”
I would like to thank once again the Special Rapporteur for his excellent First Report. This concludes my comment and I thank you, Mr. Chairman.
2. Murase comments on Jus Cogen (4 July 2017) (A/CN.4/SR. 3369)
Before I begin, I would like to welcome, most warmly, the participants of the 53rd session of the International Law Seminar. I myself was a participant of the Seminar in 1975, and my professional career in international law actually started from that seminar 42 years ago. I hope that this year’s participants will have the same valuable experiences as that I had at that time.
On this occasion, I would also like to thank the assistants and interns who have been helping our work since May. We, the members of the Commission, would not function properly without our assistants. I hope that you find your experience here as valuable for your future endeavors.
I would like to thank the Special Rapporteur, Professor Dire Tladi, for his excellent Second Report and his oral introduction yesterday. This is a very difficult theoretical topic. Like last year’s Report, this Second Report is a well-researched document and is of high academic standard.
I must confess, however, that I have some basic problems with some assumptions and conclusions within the Second Report. I would like to address the concepts of: descriptive elements, fundamental values, general international law, and acceptance and recognition. The Special Rapporteur highlights three “descriptive elements”, which are seemingly excluded from normative “criteria” for jus cogens; “fundamental values”, “hierarchical superiority”, and “universal application” (paras. 18, 31 & 89).
Thus, the logic used by the Special Rapporteur appears to me to be “circular” and “tautological”. These three characteristics of jus cogens norms are not really defined, and I find they are used almost interchangeably, which leads to a circular argument among these “inconclusive,” if not “empty,” concepts. Since the Special Rapporteur does not give any concrete examples as to the formation and identification of jus cogens throughout his Report, it is very difficult for us to understand the arguments that are made on an extremely abstract level.
In the discourse of the Second Report, I am reminded of a Buddhist monk in Japan in ancient times, who advised his followers to recite the magic words of incantation. Even if one was skeptical at first, by repeating the words over and over again, one came to believe in them. If one believed in them, he or she would be saved, and Heaven would be assured. If one started questioning the meaning of those magic words, however, one would be told that he or she might end up in Hell. I may sound like Carl Schmitt who made similar remarks, criticizing Alfred Verdross, on the principle of pacta sunt servanda. (Carl Schmitt, Verfassungslehre, 1927, Chapter 7, 2, pp. 70-71, criticizing Alfred Verdross, Die Verfassung der Völkerrechtsgemeinschaft, 1926. Verdross was, as a member of the Commission between 1957 and 66, the chief architect of the jus cogens provision in the Law of Treaties.) Even though there is no open objection to jus cogens, skepticism seems to be quite deep and widespread.
What is said in the Second Report is, in essence, that: (1) jus cogens norms reflect and protect fundamental values for the international community as a whole (para. 22 of the Report); that (2) jus cogens norms are hierarchically superior norms of general international law from which no derogation is permitted (para. 23 and para. 35 of the Report), and that (3) jus cogens norms are those norms that are accepted and recognized as such by the international community of States as a whole (para. 35 of the Report). The Special Rapporteur stresses on each of these points that ICJ and other courts and tribunals, including domestic courts, refer to these concepts.
Unfortunately, however, the courts merely refer to the jus cogens norms and do not elaborate what they mean by “general international law”, “hierarchical superiority”, “fundamental values”, “acceptance and recognition” and “international community (of States) as a whole”. The courts do not have to explain their judgments under the maxim “jura novit curia” (the courts know the law), and we are impliedly advised by the Special Rapporteur not to question them, and just to accept the judgments. However, until we know the substantive contents of these notions, we will not be free from the ring of the circular arguments.
Allow me to examine some of the key phrases employed in the Second Report.
First, with regard to the concept of “fundamental values”, I have a fundamental doubt about this notion being employed in international law. To try to introduce such an extra-legal notion is out of order in our exercise of codification and progressive development of international law. Domestic law is grounded in a particular basic value chosen by its nation, which is the essence of its basic constitutional norm (Grundnorm). By contrast, international law is grounded by the multiplicity of value systems. Each State has its own value system, and, in principle, there are no uniform values in the international community composed of sovereign States.
That said, however, I admit that there must be certain fundamental, public policy values in order to prove the existence of jus cogens, which is another very difficult task for a positivist international lawyer. I wonder if it was because of this positivist difficulty that fundamental values are not included in the Special Rapporteur’s normative “criteria” for jus cogens (Draft conclusion 4) but remained merely as “descriptive elements”, even though fundamental values are said to be a “predominant theory” (para. 22). However, it would be difficult to leave fundamental values as simply descriptive; they are essential for identification of jus cogens.
It may be noted that in the Articles on Responsibility of States for Internationally Wrongful Acts, the commentary repeats the expressions of “vital interests of the international community” and “fundamental character” of peremptory norms, avoiding the term “fundamental values”. (Paragraph 7 of the Commentary to Draft Article 12 states: “obligations imposed on States by peremptory norms necessarily affect the vital interests of the international community as a whole and may entail a stricter regime of responsibility than that applied to other internationally wrongful acts.” Paragraph 4 of the Commentary to Part Two, Chapter III states: “A closely related development is the recognition of the concept of peremptory norms of international law in articles 53 and 64 of the 1969 Vienna Convention. These provisions recognize the existence of substantive norms of a fundamental character, such that no derogation from them is permitted even by treaty.”) It may be proper to insert these words in Draft conclusion (4) by employing these expressions of the commentaries to State Responsibility articles, which could be incorporated as normative criteria for identifying jus cogens.
General international law
Second, and the most crucial problem is: what is “general international law”? No definition is given in the Second Report, except that it has “a general scope of application” (Draft conclusion 5 (1)). This does not make any difference from customary international law. In fact, many experts use the expression of general international law as a synonym of customary international law. What is important for the Special Rapporteur is to prove general international law is something hierarchically superior to other norms of international law, but this has never been proven in the Second Report.
Although the Special Rapporteur refers to Conclusion (20) of the Fragmentation Study (para 51), we all know that the Fragmentation Study does not take the position on the definition of “general international law”, which is noted in the footnote 6 of that Study. (The footnote 6 of the Fragmentation Study reads as follows: “There is no accepted definition of “general international law”. For the purpose of these conclusions, however, it is sufficient to define what is ‘general’ by reference to its logical counterpart, namely what is ‘special’.” The notions of “general principles of international law” and “general international law” are two different notions. The general principle of international law is, of course, different from “general principles of law” that are domestic law origin.)
The Second Report states that “the most obvious manifestation of general international law is customary international law. Indeed many see customary international law as the most common basis for the formation of jus cogens norms.” I do not believe, however, that the Special Rapporteur’s intention was to equate general international law with customary international law. The Special Rapporteur also reminds that treaty law, as lex specialis, is not itself general international law. If it is not either of these sources of international law, what is general international law? Is it a third source of international law? Is it a part of positive international law, or is it something like a natural law? Natural law is, by definition, a higher law. But, is it possible to contemplate a higher law within the realm of positive international law?
The Special Rapporteur maintains that he “does not intend to resolve the natural law versus positive law debate or adopt one approach over the other” (para. 18). However, I believe that he should decide on which law he is standing in discussing jus cogens. Otherwise, I don’t think we can even begin the discussion on this topic. I am almost sure that the Special Rapporteur is a positivist, and he should make that clear. He should think of the ways to categorize a “higher law” within the confines of positive international law, which I admit is a very difficult task.
The Special Rapporteur proposes the “two-step” approach of Sevine Knuchel to prove the existence of jus cogens, that is, the process of establishment of a “normal” customary law rule as the first step, and the process of “elevation” of that rule to a jus cogens under general international law as the second step. This proposition is interesting, but I think it is quite artificial. The Report does not make it clear whether he sees the two-step processes as an actual (sociological) process of the formation of a jus cogens norm, or merely as a process of legal reasoning. If it is the former, an empirical study is necessary to demonstrate this sociological process of two-steps development of the rule in question. The two-step approach proposed by the Special Rapporteur for the second step (identification of jus cogens) seems to me to be a “double counting” of the same material that has been used for the first step (identification of customary international law), as indicated in Draft conclusion 9.
If the Special Rapporteur’s intention was the latter, a reasonable explanation is required to show, as a matter of logical consequence, why a particular rule has to be elevated from a normal customary rule to a jus cogens rule. It has never been proven that there is a hierarchy in positive international law. It has never been demonstrated how international law is structured like a pyramid as we see in the domestic law. Hans Kelsen’s theory of hierarchy of law (Stufenthorie des Rechts) does not apply to international law, as it is based on the equality of sovereign States.
In this context, it is difficult for me to accept the Special Rapporteur’s reference to the “general principles of law” of Article 38 (1) (c) of the ICJ Statute, which he considers a source of “international law”. Unless we take the theory of natural law like Professor Alfred Verdross and Judge Kotaro Tanaka, who considered general principles of law as a set of higher law of the international community, I believe that general principles should be regarded as domestic law principles from the positivist standpoint.
As a matter of interpretation of Article 38 (1), the general principles of law of sub-paragraph (c) cannot be a source of international law. As provided in sub-paragraphs (a) and (b), the sources of international law are treaties and customary international law. Sub-paragraph (c) has to be interpreted “meaningfully”, in accordance with the principle of effectiveness, so that it will not overlap with sub-paragraphs (a) and (b).
Thus, the general principles of law must be considered as domestic law origin, commonly applicable between the parties. This is confirmed in practice. If that is the case, the elevation of a certain domestic law principle to jus cogens would need to take three-step process: the first step would be from domestic law to a general principle of law, the second step from general principle to customary international law, and the third step from normal customary law to jus cogens. But, of course, this is too artificial an argument.
Mr. Tladi mentioned yesterday that the general principles of law was considered as part of general international law in the course of drafting the present Article 53, but the fact is that it was ultimately dropped, and the reason for dropping it was, as I read the 1963 summary records, because of the lack of common understanding of the general principles of law and possible confusion. (Members of the Commission (Ago, Briggs, Yasseen, Lachs, Gros, Bartos, El-Erian, and Verdross, etc.) in 1963 expressed variety of views on general principles of law and/or of international law in relation to the then draft article 13. Yearbook of the International Law Commission, 1963, vol. 1, p. 71, para. 51 and p. 72, para. 70, et seq. A/CN.4/SR 683, 684, (679, 680), etc.) I believe that we should also refrain from general principles of law in our consideration of jus cogens.
In any event, Draft conclusion 5 needs a great deal of substantiation and justification.
Acceptance and recognition
Third, I am troubled by the expression of “accepted and recognized by the international community of States as a whole.” Draft conclusion 6 (2) refers to the “opinion” of the international community. How do we know its “opinion”? Draft conclusion 7 (1) refers to the “attitude” of States. How do we know this? Opinions can change and attitudes are always very ambiguous.
It seems that, according to the Special Rapporteur, acceptance and recognition is far lower commitment of States than consent. However, jus cogens obligations impose a much heavier burden on States, which should logically require a much stricter manifestation by States than “normal” treaties or customary norms. Draft conclusion 7, however, requires only a mild standard of agreement by States, stating that “acceptance and recognition by a large majority of States is sufficient” and that “acceptance and recognition by all States is not required.” This is entirely unbalanced. I would favor a formula requiring the “consent” of virtually “all States” for a jus cogens norm.
Draft conclusion 9 (2) enumerates materials to be considered for evidence of jus cogens. As I mentioned earlier, these are the same as the materials for identification of “normal” customary international law. If we want to prove that this normal customary rule has been elevated to jus cogens, we have to use different materials that are qualitatively separate from the evidence of customary international law in order to avoid the “double counting” (or “triple counting”, as double counting is already often practiced for both opinio juris and State practice in the identification of normal customary international law!)
Name of the Topic (para. 41)
I have no problem with naming this topic as “Peremptory norms” and putting “Jus cogens” in parentheses. But, I have some reservations about the phrase “in international law.”
The Special Rapporteur’s First Report last year was entirely focused on jus cogens in the context of the Law of Treaties, and so, I suggested, that, if the Special Rapporteur had maintained that policy, the topic should have been named as “Jus cogens in the Law of Treaties.” If the Special Rapporteur intends to treat the topic also from the State Responsibility perspective, I would be in favor of the title “in international law”, (or, perhaps “in general international law”, (Article 53 of the Vienna Convention uses the term ‘a Peremptory Norm of General International Law (“Jus Cogens”)’.
Similarly, Article 26 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts uses the title ‘Compliance with Peremptory Norms’ and prescribes ‘an obligation arising under a peremptory norm of general international law’. Both of these ILC texts use the wording of ‘a peremptory norm of general international law’ so that the name of the topic may be modified into ‘Peremptory Norms of General International Law (Jus Cogens)’ accordingly.) as he mentioned yesterday, but we have to know the meaning of “general international law” before we use it for the title!).
The Special Rapporteur states that issues on State Responsibility will be dealt with in the context of the “effects and consequences” of jus cogens. As I discussed last year in detail, the law of State Responsibility should be considered not only in the context of “effects” but also from the perspective of the whole categorization of jus cogens, including definition, criteria and content as well as its consequences. For instance, while “hierarchical superiority” is essential for the jus cogens in the context of the Law of Treaties, the Law of State Responsibility does not necessarily require hierarchical superiority for its jus cogens, in which they are understood simply as the “most important norms of fundamental character for the vital interest of the international community”. The effect of a jus cogens violation in the Law of Treaties is simply that the agreement concluded between the parties in violation of jus cogens is “null and void”. By contrast, the effect in the Law of State Responsibility goes much further, including reparations and countermeasures. The Special Rapporteur and the Commission will need to elaborate an integrated concept of jus cogens that covers both branches of international law.
Mr. Chairman, I would be in favor of sending the Draft conclusions to the Drafting Committee, and I hope that the Drafting Committee will give full considerations to the views expressed in the plenary.
I would like to thank the Special Rapporteur once again for his excellent and challenging Second Report. Even though I was a bit critical of particular concepts this morning, I still hope that the door is open for me to go to Heaven, like everybody else in the Commission.
Thank you, Mr. Chairman.
3. Murase Statement on Jus cogens, (3 July 2018) (A/CN.4/SR.3418)
Before I begin, I would like to welcome, most warmly, the participants of the 54th session of the International Law Seminar. I myself was a participant of the Seminar in 1975, and my professional career in international law actually started from that seminar 43 years ago. I hope that this year’s participants will have the same valuable experiences as I had at that time. I am happy to note that the Alumni Network of the ILS is being created by Mary-Elizabeth Chong of Singapore, which, I am sure, will bring us closer in the years to come.
On this occasion, I would also like to thank the assistants and interns who have been helping our work since April in New York and now in Geneva. We, the members of the Commission, would not function properly without our assistants. I hope that you find your experience here valuable for your future endeavors.
Last night my interns wracked their brains trying to think of a good opening line I could use in case Japan won last night’s match, which looked quite likely until the last minutes. Fortunately for my interns, Japan lost before they could think of one!
I would like to thank the Special Rapporteur, Professor Dire Tladi, for his excellent Third Report. This is a very difficult theoretical topic. Like the previous two Reports, this Third Report is a well-researched document and is of a high academic standard.
I am however troubled by the number of draft conclusions proposed in the Third Report: 14 new conclusions in total. This is apparently too many to be handled in one session. Mr. Forteau, our former colleague, once said, and I fully agree, that 4 or 5 conclusions should be the maximum number for one session, if the Special Rapporteur wants them to be considered carefully by the members of the Commission. These 14 conclusions should have been divided into two or three reports so that they could be well managed for the in-depth and detailed examination they deserve.
In this respect, the categorizations that Mr. Murphy proposed in his statement may be useful: first, DC 10 to 17 address secondary rules concerning the law of treaties and other sources; second, DC 18 to 21 deal with secondary rules concerning State responsibility; and third, DC 22 and 23 relate to secondary rules concerning criminal prosecution under national law.
I also regret that commentaries have not yet been submitted for the draft conclusions already adopted by the Drafting Committee. Like Mr. Nolte, I think it is an undesirable practice to wait for the provisional adoption of draft conclusions and commentaries thereto until all the conclusions are ready. We need to discuss commentaries each year when our memories of the discussion are fresh. To prolong the adoption of conclusions and commentaries is to deprive the Sixth Committee of the chance to comment on them in a timely manner. The topic on jus cogens is an important and difficult one, and we should not rush to finish it too early.
Today, I will refer only to a few points that I have been able to manage. The first issue I would like to address is the Law of State Responsibility.
First, I am happy to note that the Special Rapporteur finally dealt with the issues of State Responsibility. However, as I have discussed in detail these past two years, the law of State Responsibility should be considered not only in the context of “effects and consequences” but also from the perspective of the whole categorization of jus cogens, including its definition, criteria and content as well as its consequences.
In the context of the Law of Treaties, “hierarchical superiority” is essential for jus cogens, while in the Law of State Responsibility, its jus cogens, which is understood as the “most important norms of fundamental character for the vital interest of the international community,” does not necessarily require hierarchical superiority. The effect of a jus cogens violation in the Law of Treaties is simply that the lower agreement concluded between the parties in violation of the higher law of jus cogens is “null and void”. By contrast, the effect in the Law of State Responsibility goes much further. Admittedly, DCs 19 to 21 of the Third Report reflect Chapter III of Part II of ARSIWA regarding “serious breaches of obligations under peremptory norms of general international law”.
However, the Special Rapporteur fails to address other aspects of “legal consequences of an internationally wrongful act” stipulated in Part II of ARSIWA such as reparations and cessation and non-repetition, as well as “the implementation of the international responsibility of a State” provided in Part III of ARSIWA. On the latter, some previous speakers rightly pointed out two missing issues in the Third Report: first, “invocation of responsibility by a State other than an injured State” enshrined in Article 48 of ARSIWA; and second, Article 50 (1)(d) of ARSIWA, according to which, “countermeasures shall not affect … other obligations under peremptory norms of general international law.”
Another difference between the two branches of law is that, while the jus cogens in the Law of Treaties concerns the invalidity of an agreement in question, the jus cogens in State Responsibility concerns actual conduct of States “on the ground”. The Special Rapporteur and the Commission will need to elaborate on an “integrated” concept of jus cogens, which covers both branches of international law.
The second issue that I would like to address is the “unilateral acts” referred to in the Third Report, paras. 146-149, and draft conclusion 16. States’ unilateral actions are divided into three categories: unilateral acts, unilateral declarations, and unilateral measures. If we understand unilateral declarations as those “related to unilateral acts strict sensu” (2006 ILC Guiding Principles, 5th preambular paragraph), they are assimilated into unilateral acts. So, what matters here are unilateral acts and unilateral measures.
“Unilateral acts” are “juridical acts” that are binding not only on the addressee State but also on the States exercising the acts. Even though they are unilateral, the acts are the application of the existing rules of international law. The acts are based either on a treaty or customary international law. Reservation to a treaty that the Special Rapporteur refers to is a unilateral act based on treaty provisions. Another example of treaty-based unilateral act is the unilateral submission of a contentious case to ICJ under Article 36(2) of its Statute. Examples of unilateral acts based on customary international law include: recognition of States and Governments. I will focus on recognition of States here.
Jus cogens can be relevant in the recognition of a new State. In the 1930s, there was a policy advocated by the United States for “non-recognition” of an “illegally” created State, such as Manchukuo, called the “Stimson Doctrine”. The UN called for non-recognition in regard to Rhodesia, Namibia and Transkei (Declaration of Independence on 26 October 1976), (Donald A. Heydt, “Non-recognition of the Independence of Transkei”, Case Western Reserve Journal of International Law (JIL) 1978, 10-1, 167-196.) which the Special Rapporteur discussed in his Third Report in the context of the States’ duty not to recognize an unlawful “situation”.
However, it seems to me that there is a big difference between the recognition of States on the one hand, and the recognition of “certain situations” on the other. The former is a question of applicability of a century-old rule of international law, while the latter normally addresses a composite application of relevant rules leading to the “situation” in question. I think the question of recognition of States should better be addressed as a matter of a unilateral act.
I have read the reports of the ILA Committee on “Recognition/Non-Recognition of International Law, and I regret that they did not refer to the issue of jus cogens in the context of the recognition of States. I noticed, however, that Professor Lee Keun Gwan of Seoul National University (he will join us later this week as a speaker at the 70th anniversary event) made an important remark at the meeting of the ILA Committee on the topic held in Washington DC in 2014, as follows:
“When it comes to the question of recognition/ non-recognition, one needs to distinguish three stages. In the era of traditional international law, the birth and disappearance of States was regarded as a question of fact, not a question of law. However, we have moved past that stage. The question is now discussed in legal language. Going one step further, one deals with the question of whether there is a legal obligation of non-recognition. There is a broadly recognized obligation of non-recognition, in particular in cases where jus cogens have been breached.” (WORKING SESSION, Tuesday, 8 April 2014. Professor Lee further remarked: “The main difference of opinion concerns the question of decision makers: should the UN Security Council or some other actor decide when a breach of jus cogens has occurred? This is an outstanding issue where more clarity is needed.”)
Thus, I believe that the question of jus cogens should be considered in the context of recognition/non-recognition of States (and of Governments) as a unilateral act based on customary international law.
In parallel to unilateral acts, I believe that “unilateral measures” should also be considered in the context of jus cogens. While unilateral acts are, as juridical acts, based on existing conventional or customary international law, “unilateral measures” are taken by States where the applicable law is obscure, or still undergoing change. Some unilateral measures are opposable, others are non-opposable, if not illegal. Unilateral extensions of maritime jurisdiction, unilateral economic sanctions and unilateral law enforcement actions are the examples of unilateral measures. (Murase, International Law, Sophia University Press, 2011, pp. 214-266 (Unilateral Measures and the Concept of Opposability). These may be regarded in some cases as violations of jus cogens.
I have a few brief observations on the other draft conclusions proposed by the Special Rapporteur.
Regarding draft conclusion 18 on “obligations erga omnes”, it seems to me that this reminder may not be necessary as a conclusion and could be better explained in the commentary. I think there is certain confusion here. The concept of erga omens obligations, owed to the international community as a whole, emerged in contrast to the traditional obligation in international law, that is, the “reciprocal obligations” in bilateral relations of States, which demonstrates the “horizontal” expansion of obligations under international law. Jus cogens, at least in the context of Treaty Law, addresses the “vertical” relations between the higher law and the lower agreements. Conclusion 18 gives an erroneous impression that erga omnes obligations and jus cogens obligations are on the same horizontal dimension. If we reformulate the definition of jus cogens norms in line with the Law of State Responsibility as I earlier suggested, we could meaningfully discuss the relations between erga omnes and jus cogens obligations, because they are basically on the same level. But, this does not seem to be the position of the Special Rapporteur.
With regard to the last two conclusions, 22 and 23, proposed by the Special Rapporteur: I would agree with these draft conclusions, but only if we know in advance what “jus cogens crimes” we are talking about. There is no description in the Report of which crimes are premised for these draft conclusions. Obviously, it is logical that identification of “jus cogens crimes” should precede questions such as the State’s duty to exercise jurisdiction, criminal responsibility and immunity. The Special Rapporteur seems to be “putting the cart before the horse”.
The Special Rapporteur indicates his plan for the future in para. 162. I don’t think we can meaningfully conclude this year consideration of the present report, which is very rich in content, and as I stated earlier, we should not rush. With regard to the list of the jus cogens norms, even if it is intended to be illustrative, it will take several years for the Commission to agree, if we want to have a list, which is meaningful (whatever it means!).
In addition, I believe that any discussion on “regional jus cogens” is absurd in the context of the present topic. It would destroy the integrity of the notion of jus cogens. It is contrary to the basic notion of jus cogens “as a norm accepted and recognized by the international community of States as a whole”. The danger of fragmentation by introducing regional jus cogens will be much more serious than recognizing “particular custom” in customary international law.
Finally, Mr. Chairman, as I stated repeatedly in other contexts, I am worried about the proliferation of “Conclusions”. I do not think it proper to call the product of the ILC “Conclusions”. I hope that the Special Rapporteur and the Commission will reconsider this point seriously.
Mr. Chairman, I would like to thank the Special Rapporteur for his thought-provoking Third Report. I would be in favor of sending all the Draft conclusions to the Drafting Committee, taking into account the views expressed in the plenary.
Thank you, Mr. Chairman.
4. Murase Comments on jus cogens (Final) (8 May 2019) (A/CN.4/SR.3459)
I would like to thank the Special Rapporteur, Professor Dire Tladi, for his excellent Fourth Report (A/CN.4/727) and his oral introduction this morning. We are deeply grateful to Mr. Tladi for his dedication and for the tremendous amount of efforts that he has made for this very important and difficult topic.
I. Regional jus cogens
I fully support the Special Rapporteur’s position regarding regional jus cogens, namely, that we should not include a reference to regional jus cogens in the proposed conclusions. Conceptually, regional jus cogens are contradictory to the very notion of jus cogens as peremptory norms of general international law. Besides, the notion of regional jus cogens is not supported in practice, as the Special Rapporteur has clearly demonstrated.
If a provision on regional or particular jus cogens were included, it would face the same problem as the “particular custom” in the Conclusions on the Identification of Customary International Law. As you may recall, I was not in favor of including particular custom in that project, especially as it was done without clarifying its effect on the third parties, which could have been stipulated along the lines of Article 34 of the VCLT in case of treaties. The third party effects of particular jus cogens would pose more intricate problems than treaties and customary international law.
I should also point out that inclusion of regional jus cogens would contradicts the title of this project, referring to peremptory norms of general international law.
II. Illustrative list
Regarding an illustrative list, yes, whether “to have or not to have, that is the question”, and we all feel like Prince Hamlet. I am included in those who expressed support of an illustrative list in footnote 138 of the Fourth Report, but it was only on the condition that we would spend sufficient time to carefully examine each item.
I once indicated that we would need 20 years to complete the project with a list. I always opposed to rush, because the topic was too important to reach a conclusion in a hasty manner. It is true that Draft Conclusions on this topic would lose half of its value, if an illustrative list of jus cogens were not included in it. But, even for a list of non-exhaustive and illustrative character, we should give a precise content to each of the candidates of jus cogens. If we have only a few weeks this year to consider the list, regrettably, I have to oppose to the idea of having a list under the current agenda. But I would be more than happy to cooperate with the Special Rapporteur for the next a few quinquenia, as we are both young enough to finish the list before we become too old.
In preparing the list, we are entering into the world of the “primary rules” of jus cogens. Unlike the secondary rules, which are abstract and general, each of the content of the primary rules needs to be defined precisely and its scope of application should be clearly delimited for the jus cogens rule in question. I would like to show some of the anticipated problems and difficulties on the list proposed by the Special Rapporteur.
Before commenting on each candidate of jus cogens norms, I would like to express my doubt about the methodology and criteria of the selection of the candidates of jus cogens norms. This may be a bit too naïve, but my initial reaction was: why the “respect of State sovereignty” does not come first as a jus cogens norm, since sovereignty or sovereign equality is the most fundamental norm in international law. What about “respect for international law” or “pacta sunt servanda”? Isn’t this supposed to be the basic norm, Grundnorm, of international law, and therefore, a jus cogens?
The Special Rapporteur’s selection is based on the previous work of the Commission. I am not sure if the references, sometimes, passing references, in the commentaries to the relevant instruments are good enough as the criteria. In this connection,
I regret that the Fourth Report does not refer to the illustrative list given in the text of Draft Article 19 of the Responsibility of States Articles provisionally adopted by the Commission in 1976 under the Special Rapporteurship of Professor Judge Roberto Ago, to which rich commentaries were attached. (Report of the ILC, 1976, Yearbook of ILC, Part II (2), pp. 95-122.) The text of Draft article 19 (3) gave an illustrative list for “international crimes” (which are tantamount to jus cogens), (Ibid., Commentaries to Article 19, paras. (17) – (18), p. 102.) and they are: (1) aggression, (2) self-determination, (3) slavery, (4) genocide, (5) apartheid and (6) massive pollution of the atmosphere and of the sea. (3. Subject to paragraph 2, and on the basis of the rules of international law in force, an international crime may result, inter alia, from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security, such as that prohibiting aggression; (b) a serious breach of an international obligation of essential importance for safeguarding the right of self- determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination; (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid; (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the sea.)
Torture and the basic rules of international humanitarian law are new addition in Mr. Tladi’s Fourth Report, while massive pollution of the atmosphere and of the sea is missing in Mr. Tladi’s list, although I note that catastrophic destruction of the environment is referred to as a possible candidate in Mr. Tladi’s Fourth Report. I would certainly have included the Protection of the Atmosphere as jus cogens, but, as we all know, the atmosphere of the Commission, unfortunately, was not favorable for such a revolutionary idea.
I would like to examine some of the items of the proposed jus cogens norms enumerated in the Fourth Report. It is only to indicate the difficulty of elaborating a list on jus cogens norms within a short period of time. I am sure that we could complete the list, if we had ample time to consider it in the Commission.
First on the prohibition of aggression: I am troubled by the Special Rapporteur’s description in paragraph 62 regarding “possible alternatives” to the term “prohibition of aggression”, i.e., “the prohibition of the use of force, the prohibition of aggressive force, the law of the Charter on the prohibition of force”. In my mind, there is a significant difference between “aggression” and “the use of force”, and also “the law of the Charter on the prohibition of force.” Article 103 of the Charter has been unduly exaggerated. It merely prescribes that the “obligations under the Charter” prevail over the obligations under other international agreements, which does not in any way imply that the Charter is a “higher law”. We must remember that Article 103 is just a part of “Auxiliary Provisions” of the Charter, and it is not part of the “Principles” clauses of Article 2 of the Charter.
I note that, in this respect, the Commission itself recognized, in its commentary on the draft articles on the law of treaties, that “the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens.” (Yearbook of the International Law Commission, 1966, Vol. II, p. 247, para. (1)) But the Special Rapporteur did not choose the prohibition of the use of force to be a jus cogens norm, but it is the prohibition of aggression which is a jus cogens, which I think was the right choice.
Article 2(4) of the Charter does not provide for a comprehensive ban on the use of force. It prohibits the use of force only “in their international relations”, allowing some room for the use of force in civil war or internal conflict; it prohibits force only “against the territorial integrity and political independence”, perhaps allowing certain “in-and-out operations; and it prohibits the use of force “in any other manner inconsistent with the Purpose of the United Nations”, leaving some room for an a contraio interpretation that the use of force may be permissible if it is “consistent” with the Purpose of the United Nations.
I am not proposing that such interpretations should be supported for Article 2(4), but obviously, there are certain exceptions. Besides, Article 2(4) is a part and parcel of Chapter VII of the Charter, allowing the use of force in individual and collective self-defense under Article 51 and the forcible enforcement actions under Articles 39 and 42-43. The normativity of Article 2(4) depends on the effective functioning of Chapter VII, but as we all know, Chapter VII does not always work as expected, with the result that the use of force by Member States may be permissible in such a situation. (See S. Murase, “The Relationship between the United Nations Charter and General International Law regarding Non-Use of Force”, International Law: An Integrative Perspective on Transboundary Issues, Sophia University Press, 2011, pp. 276-180.) Clearly, prohibition of the use of force in Article 2(4) cannot be equated with prohibition of aggression.
Article 39(1) of the Charter provides for an “act of aggression”, but “aggression” has only been referred to a few times and has never been determined as a ground for the enforcement measures under Chapter VII. There is no definition of aggression in the Charter. That is why the General Assembly adopted resolution 3314 (XXIX) on the “Definition of Aggression” in 1974, but it meant to be used as a guide for the Security Council and was not intended to be used as an independent definition.
Furthermore, it does not really give any substantive definition of aggression. In paragraph 65 of the Report, the Special Rapporteur looks at its preamble, but we must look at its operative articles. Article 1 of the resolution simply repeats Article 2(4) of the Charter. (Article 1: “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.”; Article 2: “The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.)
Article 2 of the resolution refers to the “first use of armed force” as a prima facie evidence of aggression, but the same article hastily cautions that the Security Council may conclude otherwise in certain circumstances. (Article 2: “The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.)
Article 3 of the resolution illustrates various acts that qualify as aggression, such as invasion or attack by armed forces, bombardments and blockades and other uses of armed forces, all of which are seemingly covered by, and not different from, Article 2(4) of the Charter. In other words, the GA resolution on the Definition of Aggression does not go further than Article 2(4) and does not define aggression as such.
The Special Rapporteur refers to the 1986 Nicaragua judgment. It is fine, but it merely quotes the Commission’s commentaries for justification. The Court does not give us any detailed explanation why the Court considered the use of force in question as an aggression and as a violation of jus cogens. … Jura novit curia (the Court knows the law), and so, it does not explain.
The definition of the Act of Aggression was adopted at the Review Conference of the International Criminal Court in 2010, which however merely recites resolution 3314 (XXIX). Thus, there is no viable definition of aggression, and in such a circumstance, it seems difficult to conclude definitively at this moment that the prohibition of aggression is a jus cogens norm.
Second on the right to self-determination: Like “aggression”, nobody denies that “self-determination” is an important rule in international law at its face value, but again, we don’t know what it means in concrete situations. We have no viable definition of self-determination and we don’t know what the scope of application of this concept. What is the relationship between the so-called “internal” and “external” self-determination? Should we deal with the principle of self-determination from the perspective of the “right of the people”, or from that of the “obligations imposed on other States”? I believe that it is the latter aspect, the aspect of obligations that other States should comply with. It is the aspect of obligations on which the focus should be given for the jus cogens norm of self-determination.
There is also another difficult issue. Suppose that self-determination is a jus cogens, is it permissible to use force to achieve its objective, which is otherwise prohibited? Which jus cogens norm should prevail over the other? The GA resolution 3314 (XXIX) on the “Definition of Aggression” that I referred to a moment ago addresses this intricate question by providing that: “Nothing in the Definition, and in particular Article 3, could in any way prejudice the right to self-determination, …” This question of conflicting jus cogens norms may become a serious problem, as there is a tendency of increasing number of jus cogens norms proposed in various forums today. I will refer to this question at the end of my intervention this morning.
I recall that, a few years ago, there was a proposal made in the Commission for a new topic to be included, on self-determination. The members started talking about Quebec, Crimea, Chechen, Taiwan, Tibet, Chagos and Gibraltar. Self-determination cannot be sensibly discussed without its implications with such concrete issues. I don’t think we can include this rule in the list of jus cogens without further examining its precise content and its defined scope of application. I think the work will take a long time.
Third, with regard to the prohibition of slavery: There appears to be a consensus to the effect that the practice of slavery has now been prohibited in an absolute manner and thus its prohibition has acquired the acceptance as a jus cogens norm. However, it should be noted that historical development of the prohibition of slavery took a course more complex than what is summarized by the Special Rapporteur in paragraph 103 of his Fourth Report. Originally, prohibition of slavery was focused on the use of human beings as goods for trade. In recent years, however, there is a tendency to expand the scope of slavery to other slave-like activities or treatments for purpose the of including them as jus cogens norms. I would call this tendency “jus cogens inflation”. There are some difficulties to give precise scope to its prohibition, or to the definition of slavery itself in the contemporary international law.
The issue related to slavery was the first dispute we had in Japan with a foreign country immediately after the establishment of the Meiji Restoration of 1868. The case was called the Maria Luz incident of 1872, a dispute between Peru and Japan. Peru’s cargo ship, Maria Luz, was carrying some 230 Chinese laborers en route from Macao to Peru. When the ship anchored at a port in Japan, a coolie escaped from the ship, and it was found that the laborers on board of the ship had been severely mistreated, who were in a situation similar to “slaves”. The Japanese court stopped the ship from leaving Japan and ordered the laborers to be freed and allowed to return to China. Peru protested, saying that the Chinese workers had signed the contract voluntarily as indentured laborers to work for plantations in Peru. One of the issues raised in this case was whether there was the voluntary will on the part of the Chinese workers. The Japanese court found that the workers were not able to read or understand the document and had no idea of the location of their final destination, leading to the conclusion that there was no voluntary acceptance of the contract on the part of the Chinese workers.
Most of the Western States, except the United Kingdom, supported Peru and opposed to Japan’s handling of the dispute. The case was brought to an international arbitration. The Russian Tsar Alexander II confirmed Japan’s position in 1875, which was a great victory for Japan when she was still under the unequal treaties with the West. The outcome of the incident accelerated the decline of the “coolie trade” in South America. The Chinese Government of the Qing Dynasty sent an official letter thanking the Japanese Government for its strong stance and assistance rendered to the Chinese nationals.
The legal issue of slavery is thus related, at least in part to the element of involuntary servitude. We must be very cautious in giving the precise content of slavery, if this is to be recognized as a jus cogens norm in order to avoid its abuse. For instance, some of the professors are criticized for using their graduate students and post doctorates like their “slaves”. There may be some victims in this room. I should make it clear, however, that, as far as I am concerned, my students and researchers are helping me purely on the voluntary basis, and that I am not to be blamed for slavery. On the contrary, I am deeply grateful for the dedication of my assistants coming from Tokyo and Beijing.
Fourth, with regard to the “basic rules of international humanitarian law”: There is an issue of terminology. We tried to avoid the use of the term “international humanitarian law” for Ms. Lehto’s topic on the Protection of the environment in relation to armed conflict. I think it is grossly misleading to call the law of armed conflict or jus in bello as a “humanitarian law”. The essence of the law of armed conflict is to authorize the killing and injuring the enemy combatants as long as there is military necessity to do so, which is not “humanitarian” at all. The obligation imposed by this law is to kill or injure the enemy “in a humane manner”. Or, at least, the law tolerates incidental loss of innocent civilian life and injury to innocent civilians, when such loss or injury would not be excessive in relation to the military advantage anticipated (Article 51, paragraph 5(b) of the Additional Protocol I).
As the Special Rapporteur indicates in paragraph 121, there is an obvious issue of uncertainty and ambiguity as to which rules are most basic in this law. Without knowing it clearly, we would not be able to conclude which rules should be considered as jus cogens.
Fifth, regarding other prohibitions, such as genocide, torture, crimes against humanity and apartheid, they may be less controversial for inclusion in jus cogens crimes, although the circumstantial elements such as the scale of the crime and its consequences may have to be considered for elevating its status to jus cogens.
If the term “racial discrimination” is an integral part of apartheid, as explained by the Special Rapporteur in paragraph 91, it may be better to call it simply as “apartheid”. Many people may misunderstand the term “racial discrimination” to be a separate and independent notion, and they may start saying what about including other vulnerable groups, such as women, children, elderly and the handicapped? (See Article 1 of the Convention on the Elimination of Racial Discrimination: “1. In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”)
As I mentioned a few minutes ago, there is a tendency of expanding jus cogens norms particularly in the area of human rights law. This may be attributed to the fact that human rights bodies have the tendency to try to expand their mandates, and that evolutionary interpretations are quite popular in those bodies. Lack of coordination among the bodies may end up with conflict, fragmentation and inflation of jus cogens norms, which we should avoid.
Mr. Chairman, what I was trying to state in my intervention this morning is that all the candidates of jus cogens norms proposed by the Special Rapporteur are serious international crimes, but it is a different matter whether they are really jus cogens norms. It will need a careful study and in-depth discussion to examine their precise content and precise scope of application, and I do not believe that we can do it within the limited time that we have at this session. It will take at least next five years or so, if not 20 years.
Perhaps, the Commission should establish a Working Group to consider whether the list should be worked out under the present topic, or whether the Commission should recommend to set up a new topic to follow up the present topic for elaborating the illustrative list.
This concludes my intervention this morning, and I would like to thank Mr. Tladi again for his excellent Fourth Report.