Document Type : Research Paper

Author

• sepanta mojtahedzadeh

Assistant Professor, Department of Law, Faculty of Law and Political Science, University of Mazandaran, Babolsar, Iran

Abstract

Introduction

Jus cogens, as a super-norm in the normative hierarchy of international law, has always been associated with a certain ambiguity in its definition and recognition, primarily due to its inextricable link with fundamental moral principles. In the conventional law and case law, it is not explicitly defined; instead, there are only general criteria for identifying this norm and imposing restrictions on the will of states and other subjects of international law. The identification of a rule as a peremptory norm seems to hinge primarily on the selection of a theoretical justification—should it be natural law theory, public order theory, or customary international law? Moreover, the question of methodology persists: Is there a specific and novel methodological approach for identifying peremptory norms? Or does this concern fall within a realm where recognition is based on the relevant values in an intuitive and clear manner?
These questions do not yield easy answers, given the importance and complexity of the topic. It is also challenging to derive a clear and coherent guide from existing state practices in this regard. However, it is evident that the interaction between the two subsidiary sources of international law (i.e., the doctrine and the case law) will be productive, as the ideas and guidelines generated by one can be assessed against the criteria of the other. In this respect, the present study aimed to examine the criteria for identifying peremptory norms of international law (jus cogens) by examining the draft approved in 2022 by the International Law Commission (ILC) regarding their identification and legal effects, alongside relevant international case law and doctrines. The central question is whether these criteria need to be substantiated or the inherent significance of a rule is sufficient for it to be deemed peremptory?

Literature Review

In Persian-language legal literature, there are several studies about jus cogens or peremptory norms. The notable studies include: “The Foundations and Legal Nature of Jus Cogens From the Perspective of the International Law Commission” (Golchin & Mousazadeh, 2022) and “The Obligation Not to Render Aid or Assistance in Maintaining a Situation Created by the Breach of a Peremptory Norm of General International Law (Momtaz et al., 2018). Much of the relevant literature examines different aspects of jus cogens in international law. What distinguishes the present study from previous research, however, is its focus on the criteria for identifying jus cogens. It does so by drawing on the most recent developments in international law, particularly those reflected in the ILC’s 2022 draft conclusions.

Materials and Methods

The current research used a descriptive–analytical methodology. The data was collected through library research, including credible online sources.

Results and Discussion

According to the research findings, the relevant criteria must be established in each individual case, and that the inherent significance of a rule, by itself, does not confer peremptory status upon it. In fact, any intuitive or impressionistic identification of jus cogens is rejected—both by the ILC and the international case law. This is why international courts rely on a broad range of tools and evidence to determine the existence of jus cogens, including official statements and legal views of states, diplomatic correspondence, national constitutions, administrative and judicial decisions at both national and international levels, treaty provisions, acts and documents issued by international organizations, and the writings of distinguished international jurists. All these sources are used allegorically rather than exhaustively. It should also be noted that, in the ILC’s view, even subsidiary means of identifying jus cogens—such as the doctrine of leading jurists—are not diminished in importance due to their subsidiary character. Rather, their value lies in their facilitative role in the identification, or more precisely the “proof,” of the existence of a peremptory rule.

Conclusion

The study focused on the ILC’s draft and the views expressed in its commentary, as well as the opinions of scholars and international jurists. Although the draft does not entirely dispel the ambiguity surrounding jus cogens and the methods for identifying such norms in international law, it has significantly reduced these uncertainties by providing both primary and secondary tools for identifying jus cogens. Therefore, the ILC’s draft constitutes a forward‑looking and constructive document on the criteria for recognizing jus cogens.

Keywords

• Jus Cogens
• International Law Commission
• Identification Criteria
• Customary International Law
• General Principles of Law

Main Subjects

• International Law