Values in the International Community: Jus cogens in light of the International Law Commission’s 2022 Conclusions

Abstract

The author discusses the UN International Law Commission’s 2022 draft conclusions on jus cogens, and suggests that it is in the interest of all States that the General Assembly take note of them in 2023. The debate in the Sixth Committee of the General Assembly in 2022 showed that some States remain highly critical of particular points in the draft conclusions. The conclusions do remain problematic in at least one important respect, the possible effect of jus cogens norms on binding Security Council decisions. Overall, however, they offer carefully judged clarifications on what is an important topic for the present and future of international law.

The systematic and rigorous approach proposed by the ILC’s draft conclusions for the identification of jus cogens norms, and the limited consequences of such norms set out in the conclusions, should enhance stability and the international rule of law. It may be concluded that recent developments in relation to jus cogens represent an advance for the rule of law as compared with 1969 when the term was included in the Vienna Convention on the Law of Treaties. This will be particularly so if the General Assembly now proceeds to adopt a resolution annexing the 2022 conclusions. Doing so would help to consolidate a sound understanding of jus cogens, and would be without prejudice to the positions of States on particular points of concern.