Jus Cogens

138 Pages·2021·1.695 MB·English

by  Dinah Shelton

Jus Cogens
ELEMENTS OF INTERNATIONAL LAW
Series Editors
Mark Janis is William F. Starr Professor of Law at the
University of Connecticut.
Douglas Guilfoyle is Associate Professor of International and
Security Law at UNSW Canberra.
Stephan Schill is Professor of International and Economic Law and
Governance at the University of Amsterdam.
Bruno Simma is Professor of Law at the University of Michigan and a
Judge at the Iran-U S Claims Tribunal in The Hague.
Kimberley Trapp is Professor of Public International Law at
University College London.
Elements of International Law represents a fresh approach in the
literature of international law. It is a long series of short books.
Elements adopts an objective, non- argumentative approach to
its subject matter, focusing on narrowly defined core topics in
international law. Eventually, the series will offer a comprehensive
treatment of the whole of the field. At the same time, each
individual title will be a reliable go- to source for practicing
international lawyers, judges and arbitrators, government and
military officers, scholars, teachers, and students engaged in the
discipline of international law.
Previously Published in this Series
The European Court of Human Rights
Angelika Nussberger
International Law in the Russian Legal System
William E. Butler
The International Tribunal for the Law of the Sea
Kriangsak Kittichaisaree
Jus Cogens
Dinah Shelton
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© Dinah Shelton 2021
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First Edition published in 2021
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Library of Congress Control Number: 2020945210
ISBN 978– 0– 19– 886595– 7 (hbk.)
ISBN 978– 0– 19– 886596– 4 (pbk.)
DOI: 10.1093/ law/ 9780198865957.001.0001
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Series Editors’ Preface
I am delighted to welcome this wonderful contribution to our new series,
Elements of International Law: Jus Cogens by Professor Dinah Shelton.
When the Elements’ Editors set out to find the best- qualified author to
write our jus cogens volume, it was really not a difficult task of discovery.
One scholar stood out: Dinah Shelton. Through a remarkable and distin-
guished career, Professor Shelton has secured her place as one of the most
respected authorities in International Law, and her work on the important
and complex role of fundamental norms in our discipline is unique and
without modern parallel. All of the editors of Elements are honored to have
Professor Shelton joining our series.
Let me briefly put Professor Shelton’s book into the larger context of
Elements of International Law. Some years ago I brought the concept
of the series to John Louth and Merel Alsteen, international law edi-
tors at Oxford University Press. Together, along with co-e ditors Douglas
Guilfoyle, Stephan Schill, Bruno Simma, and Kimberley Trapp, we struc-
tured Elements, chose topics, sought out the best person for each book, and
edited their contributions. There are several dozen authors already working
on Elements books and we anticipate about six published works in 2020,
and ten or so more in each of the next years, in time numbering more than
one hundred volumes.
Elements represents a fresh approach to the literature of international
law. It is a long series of short books. Following the traditional path of an
international law treatise, Elements, rather than treating the whole of the
field in one increasingly heavy volume, focuses on more narrowly-d efined
subject matters, such as Jus Cogens and International Law.
There is nothing like Elements. It treats particular topics of international
law much more extensively and in significantly more depth than traditional
international law texts or encyclopedias. Each book in the Elements series
has a relatively narrow focus and renders a comprehensive treatment of a
specialized subject matter, in comparison to the more limited treatment of
the same subject matter in other general works.
Like a classic textbook, Elements aims to provide objective statements
of the law. The series does not concern itself with the academic niches
vi Series Editors’ Preface
filled ably by doctoral theses, nor include works which take an argumenta-
tive point of view, already well done by the OUP Monograph series. Except
in length and integration, Elements is for substantive topics comparable
to OUP’s Commentary series on individual treaties: a highly reliable, ob-
jective, in-d epth, and readable account of its subject.
Each book in Elements is exhaustively footnoted in respect of inter-
national legal practice and scholarship, e.g., treaties, diplomatic practice,
decisions by international and municipal courts and arbitral tribunals,
resolutions and acts of international organizations, and commentary by the
most authoritative jurists. Elements adopts an objective, non- argumentative
approach to its many subject matters and constitutes a reliable go-t o source
for practicing international lawyers, judges and arbitrators, government
and military lawyers, and scholars, teachers, and students engaged in the
discipline of international law.
All of us committed to Elements – authors, editors, publishers – hope that
our series will make a real difference to international law and to the rule of
law. We are so delighted to have Professor Shelton’s Jus Cogens as one of our
earliest books in the series. Not only because of its accomplished author, but
because jus cogens is both one of the more difficult-t o- understand concepts
in our discipline and one of the most important, laying a foundation for the
other norms of International Law. I am sure you will find Professor Shelton’s
book to be an important guide to understanding this concept in depth.
Mark Janis
Editor- in- Chief, Editorial Board,
Elements of International Law
William F Starr Professor of Law,
University of Connecticut
31 August 2020
Hartford, Connecticut
Preface
This book has been a long time in preparation, especially considering the
many years of teaching international law and thinking about its sources.
I have previously written about the topic of jus cogens, including in the
Netherlands Yearbook of International Law, 2015, and the American Journal
of International Law, among others. Inevitably, some of the basics of this
volume draw upon those earlier publications. I have listed these in full
below and am grateful for and wish to acknowledge them here.
I am also very appreciative of Mark Janis’s invitation to embark on the
work of writing this work as part of the series Elements of International Law.
Undertaking the study has required me to update my previous writings and
to follow closely the recent work of the UN International Law Commission
on the topic. I hope I have done justice to the excellent reports of its special
rapporteur, Mr Dire Tladi, on peremptory norms of general international
law (jus cogens). There are many new elements in his four reports and the
responses to them from states and other members of the ILC. I hope they
are all adequately treated herein. Any errors are entirely my responsibility,
of course.
As is always the case with my research and writing, I owe an enormous
debt of gratitude to the law librarians at the George Washington University
Law School. They are always unfailing in their expertise and assistance.
Thanks also to OUP and Newgen for its work on editing and publishing this
work.
1. Chapters 1, 2, 3, 5, 6, and 7 draw upon materials published in
Dinah Shelton, ‘Sherlock Holmes and the mystery of jus cogens’, 46
Netherlands Yearbook of International Law, (2015) 23–50. Reprinted
with permission.
2. Chapters 1,2,3,5, and 6 draw upon materials published in Dinah
Shelton, ‘International Law and “Relative Normativity”’ in M.D Evans
(ed.), International Law, (4th edn, OUP 2014) 137–166.
3. Chapter 2 draws upon material published in Dinah Shelton,
‘Normative Hierarchy and International Law’, (2006) 100 American
Journal of International Law, 291–326. Reprinted with permission.
viii Series Editors’ Preface
4. The book reviews: R. Kolb, Peremptory International Law (Jus Cogens):
A General Inventory (Oxford and Portland, OR, Hart 2015) xv, 148,
Bibliography, Index; and T. Weatherall, Jus Cogens: International Law
and Social Contract (Cambridge University Press 2015), xliv, 509,
Index.
5. Dinah Shelton, ‘Resolving conflicts between human rights and envir-
onmental protection: Is there a hierarchy?’ in E. de Wet and J. Vidmar
(eds), Hierarchy in International Law: The Place of Human Rights
(OUP, 2012), 206–235.
6. ‘The Legal Status of Normative Pronouncements of Human Rights
Treaty Bodies’ in H. Hestermeyer et al (eds) Coexistence, Cooperation
and Solidarity: liber Amicorum Rudiger Wolfrum, vol I (Brill
Publishers, 2011), 553–577.
7. ‘Hiérarchie des normes en droit international des droits de l’homme,’
26 La protection des espaces- L’Observateur des Nations Unies, 237
(2009-1).
8. ‘Mettre en balance les droits : vers une hiérarchie des norms en droit
international des droits de l’homme,’ in E. Bribosia & L. Hennebel
(eds) Classer les droits de l’homme (BRUYLANT 2004) 153.
Table of Contents
List of Abbreviations xi
1. Introduction 1
2. The Origins and Sources of Jus Cogens 3
2.1 Natural Law 3
2.2 Public Policy: Logical or Legal Necessity 5
2.3 General Principles of Law 7
2.4 Consent 9
3. The Law of Treaties 13
3.1 Drafting the VCLT 13
3.2 Definition of Jus Cogens 16
4. Recent Work of the International Law Commission 17
4.1 Recent ILC Consideration of the Topic of Jus Cogens 17
4.2 The First Report 19
4.3 The Second Report 20
4.4 The Third Report 21
4.5 The Fourth Report 26
a. The question of regional jus cogens 27
b. Whether to include an illustrative list of jus cogens norms 32
5. State Practice 36
5.1 Treaty Practice, Votes, and Official Statements in
International Organizations 36
5.2 International Jurisprudence 47
a. Jurisprudence of international courts and tribunals 48
b. Jurisprudence of regional courts and tribunals 62
5.3 National Legislation and Jurisprudence 70
5.4 Other Candidates Considered 76