Page 31 - University of Pretoria RESEARCH REVIEW 2018
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Jus cogens – defining the contours
Dire Tladi, Department of Public Law, and ICLA
The concept of peremptory norms of general international law (jus cogens) refers to those norms of international law that are so important and fundamental that no derogation from them is permissible. For international law this is revolutionary.
As a general rule, rules of international law are derogable. Any State is free to derogate from rules of international law by agreeing on different rules that deviate
from the general rule. However, peremptory norms may not be derogated from and States may not, even by agreement, depart from them. The most frequently cited examples
of peremptory norms include the prohibition of genocide, and the prohibition on the use of force.
The UN International Law Commission
(ILC), a subsidiary organ of the UN General Assembly responsible for the codification and progressive development of international law, made the decision in 2015 to initiate a study on peremptory norms and to appoint Professor Dire Tladi to be its Special Rapporteur on the topic. Tladi was first elected onto the ILC in 2011 and subsequently re-elected in 2016. He had proposed the topic for study, noting that while it was immensely
important for international law, its contours remained ill-defined. The uncertainties surrounding jus cogens have had the effect of reducing its potential impact.
Tladi produced three reports in the period 2016-2018, covering various aspects of peremptory norms and proposing a number of conclusions. The third report, presented in 2018, identified the main consequences flowing from the peremptory character of jus cogens norms. The first three reports together proposed 22 draft conclusions. The fourth report will be prepared in 2019 during Tladi’s time as Global Visiting Professor of Law at the University of Californian Irvine under a Fulbright grant.
In addition to the reports, Tladi has also been working on the
commentaries to accompany the draft conclusions. Once adopted by the ILC, the set of draft conclusions together with the commentaries will represent the definitive law on peremptory norms of general international law.
Tladi’s work on peremptory norms has had an impact on his research beyond the ILC. In 2018, he worked on a book with American and German scholars, Mary Ellen O’Connell and Christian Tams, on salient aspects of the prohibition on the use of force: The Trialogues on War and Peace: Vol
I Use of Force Against Non-State Actors
(Cambridge, forthcoming). He also authored a chapter in a book on the use of force, ‘The Intervention in Côte d’Ivoire – 2011’, in Tom Ruys and Olivier Corten (eds), The Use of Force in International Law: A Case-Based Approach (Oxford, 2018).
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