1 Koskenniemi, Martti, Hierarchy in International Law: A Sketch, 8 Eur. J. Int’l L. 566 (1997)Google Scholar.

2 Weil, Prosper, Towards Relative Normativity in International Law? 77 AJIL 413 (1983)Google Scholar.

3 Pierre-Marie, Dupuy, Droit International Public 14–16 (1995)Google Scholar.

4 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 53, 1155 UNTS 331, reprinted in 8 ILM 679 (1969)Google Scholar [hereinafter VCLT].

5 Byers, Michael, Conceptualising the Relationship Between Jus Cogens and Erga Omnes Rules, 66 Nordic J. Int’l L. 211 (1997)Google Scholar, posits that jus cogens rules are constitutional rules that limit the ability of States to create or change rules of international law, and prevent States from violating fundamental rules of international public policy, when the resulting rules or violations of rules would be seriously detrimental to the international legal system and how that system, and the society it serves, define themselves. Id. at 212.

6 See José, Humberto Castro Vlllalobos, La Norma de jus Cogens en el derechointernacional (Mexico, 1981)Google Scholar; Juan Antonio, Carillo Salcedo, Reflections on the Hierarchy of Norms in International Law, 8 Eur. J. Int’l L. 583, 586–88 (1997)Google Scholar.

7 Jonathan, I. Charney, Universal International Law, 87 AJIL 529, 543 (1993)Google Scholar. The idea of necessity as a basis for imperative norms is not new: Emmerich de, Vattel, Le Droit des Gens ou Principes de la Loi Naturelle §9 (1758)Google Scholar, and Wolff, Christian, Jus Gentium §5 (1764)Google Scholar, both state that there is a necessary law of nations, which is natural to all states, and that all treaties and customs that contravene this necessary law are illegal.

8 See, e.g., Hannikainen, Lauri, Peremptory Norms (Jus Cogens) in International Law (1988)Google Scholar; Gennady, M. Danilenko, International Jus Cogens: Issues of Law-making, 2 Eur. J. Int’l L. 42 (1991)Google Scholar; Antonio Gómez, Robledo, Le Ius Cogens International: Sa Genèse, Sa Nature, Ses Fonctions, 172 Recueil des Cours 9 (1981 III)Google Scholar; Tomuschat, Christian, Obligations Arising for States Without or Against Their Will, 241 Recueil des Cours 195 (1993 IV)Google Scholar. For a dissenting view, see Anthony, D’Amato, It’s a Bird, It’s a Plane, It’s Jus Cogens! 6 Conn. J. Int’l L. 1 (1990)Google Scholar.

9 See, e.g., Douglas, M. Johnston, Consent and Commitment in The World Community (1997)Google Scholar.

10 See, e.g., Commitment and Compliance: The Role of Non-Binding Norms in The International Legal System (Sheltoned, Dinah., 2000)Google Scholar; Samuel, A. Bleicher, The Legal Significance of Re-citation of General Assembly Resolutions, 63 AJIL 444 (1969)Google Scholar; Hiram, E. Chodosh, Neither Treaty nor Custom: The Emergence of Declarative International Law, 26 Tex. Int’l L.J. 87 (1991)Google Scholar; Higgins, Rosalyn, The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System, in International Law and The International System 21, 21 (Butler, W. E. ed., 1987)Google Scholar; Tunkin, G. I., The Role of Resolutions of International Organizations in Creating Norms of International Law, in id. at 5, 12, 14, 17 Google Scholar; Frederic, L. Kirgis Jr., Custom on a Sliding Scale, 81 AJIL 146 (1987)Google Scholar; Christopher, C. Joyner, U.N. General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation, 11 Cal. W. Int’l L.J. 445 (1981)Google Scholar.

11 The primacy of the United Nations Charter is set forth in Article 103, which provides that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” This “supremacy clause” has been taken to suggest that the aims and purposes of the United Nations—maintenance of peace and security, and promotion and protection of human rights—constitute an international public order to which other treaty regimes and the international organizations giving effect to them must conform.

12 The phrase has been used by the International Law Commission, which took up the topic on the basis of a feasibility study entitled “Risks Ensuing from Fragmentation of International Law,” which was presented at its fifty-second session in 2000. The Commission subsequently established a study group to work on the issue between 2003 and 2006. Report of the International Law Commission on the Work of Its Fifty-seventh Session, UN GAOR, 60th Sess., Supp. No. 10, at 204, para. 439, UN Doc. A/60/10 (2005). During its consideration of fragmentation, the Commission received and discussed a report on the topic of hierarchy of norms. See, in this issue, Michael, J. Matheson, The Fifty-seventh Session of the International Law Commission, 100 AJIL 416, 422 (2006)Google Scholar.

13 Human rights agreements commonly require the balancing or reconciling of different rights, e.g., between the free exercise of religion and the rights of women, or between free speech and expressions of racial and religious hatred. Most international human rights texts establish a certain primacy among human rights norms through the use of nonderogation provisions, limitation clauses, and restrictions on reservations. To these provisions, supervisory bodies have added the suggestion that “core” rights and obligations should be given priority in implementation. For derogations provisions, see International Covenant on Civil and Political Rights (ICCPR), Dec. 16, 1966, Art.4, 999 UNTS 171; American Convention on Human Rights, Nov. 22, 1969, Art. 27, 1144 UNTS 123; and European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, Art. 15, 213 UNTS 221. On core human rights provisions, see the General Comments of the Committee on Economic, Social and Cultural Rights, available at <http://www.ohchr.org/english/bodies/treaty/index.htm>.

14 See, e.g., Meron, Theodor, On a Hierarchy of International Human Rights, 80 AJIL 1 (1986)Google Scholar; Bernard, H. Oxman, Complementary Agreements and Compulsory Jurisdiction, 95 AJIL 277 (2001)Google Scholar.

15 Article 103 of the North American Free Trade Agreement (NAFTA), Dec. 17, 1992, Can.-Mex.-U.S., 107 Stat. 2066, 32 ILM 289, 605 (1993), reaffirms the parties’ “existing rights and obligations with respect to each other under the General Agreement on Tariffs and Trade [GATT] and other agreements to which such Parties are party,” but the article also states that the NAFTA prevails over those agreements in the event of an inconsistency. Chapter 1, Objectives, of which Article 103 is a part, also provides that in the event of an inconsistency, certain listed international environmental agreements take precedence over the NAFTA (Art. 104), but parties must choose the actions least inconsistent with the NAFTA obligations. The NAFTA also includes an optional selection clause for NAFTA dispute resolution procedures when the disputes concern measures adopted or maintained by a party to protect its human, animal, or plant life or health, or its environment, and raise factual issues concerning the environment, health, safety, or conservation. NAFTA, supra, Art. 2005(4).

16 The VCLT provides that generally the later-in-time treaty should prevail when the two instruments concluded by the same parties relate to the “same subject-matter,” subject to the primacy of the UN Charter. However, determining when two or more instruments relate to the same subject matter can be problematic. Interpretive rules are sometimes suggested to reconcile the conflicts that emerge, or express provisions may address the issue. Some treaties, like the Vienna Convention on Consular Relations, Apr. 24, 1963, 596 UNTS 261, expressly preserve earlier agreements concluded by any of the parties. Conversely, some, like the Convention on the Law of the Sea, in Article 311(1), expressly override the prior treaties. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 311(1), 1833 UNTS 397 [hereinafter LOS Convention]. Paragraph 6 of the same article provides that the states parties agree that the basic principles relating to the common heritage of mankind shall not be subject to amendment, nor shall the parties enter into any agreement in derogation thereof. A third option, used in the 1944 Chicago Convention on Civil Aviation, Dec. 7, 1944, TIAS No. 1591, 15 UNTS 295, requires parties to denounce inconsistent agreements. GATT Article XXIV permits the establishment of customs unions and free trade areas. General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 187. Article 311(3) of the LOS Convention, supra, permits parties inter se to modify or suspend the operation of provisions of the Convention, provided that such agreements do not relate to a provision whose derogation is incompatible with the effective execution of the object and purpose of the Convention. In addition, any such agreement must not affect the application of the basic principles of the Convention or the enjoyment by other parties of their rights or the performance of their obligations. Finally, some agreements allow other treaties to enhance obligations regarding the subject matter but prohibit any lowering of standards. See, e.g., ILO Const. Art. 19(8); Berne Intellectual Property Convention, 1886, Art. 20.

17 UN Comm. on Economic, Social and Cultural Rights, Statement on Globalization, para. 5 (May 11, 1998), 6 Int’l Hum. Rts. Rep. 1176 (1999), available at <http://www.globalpolicy.org/globaliz/define/unstate.htm>.

18 UN Comm. on Economic, Social and Cultural Rights, Statement to the Third Ministerial Conference of the World Trade Organization (Nov. 26, 1999), UN Doc. E/C. 12/1999/9, para. 6.

19 UN Sub-comm’n on the Promotion and Protection of Human Rights, Human Rights as the Primary Objective of Trade, Investment and Financial Policy, UN Doc. E/CN.4/Sub.2/RES/1998/12.

20 UN Comm’n on Human Rights, Effects of Structural Adjustment Policies and Foreign Debt on the Full Enjoyment of All Human Rights, Particularly Economic, Social and Cultural Rights, Res. 2000/82, para. 6, UN ESCOR, 56th Sess., Supp. No. 3, at 331, 333, UN Doc. E/CN.4/2000/167-E/2000/23.

21 UN Sub-comm’n on the Promotion and Protection of Human Rights, Globalization and Its Impact on the Full Enjoyment of Human Rights, preliminary report submitted by J. Oloka-Onyango and Deepika Udagama, UN Doc. E/CN.4/Sub.2/2000/13, para. 63.

22 General principles of law are a third, more rarely used, source of international law, and judicial decisions and teachings of highly qualified publicists provide evidence of the existence of a norm. See ICJ Statute Art. 38.

23 Among others who attempted such a code was David Dudley Field, who published Draft Outlines of an International Code with some 1008 articles in 1872. See, e.g., Nys, Ernest, The Codification of International Law, 5 AJIL 871, 886 (1911)CrossRefGoogle Scholar. Other discussions of codification efforts from the mid-nineteenth century can be found in Amos, S. Hershey, History of International Law Since the Peace of Westphalia, 6 AJIL 30, 51–53 (1912)Google Scholar; Manley, O. Hudson, The Development of International Law Since the War, 22 AJIL 330, 339–50 (1928)Google Scholar; Lauterpacht, Hersch, Codification and Development of International Law, 49 AJIL 16 (1955)Google Scholar.

24 Nys, supra note 23, at 874 (citing German author Karl Gottlob Guenther on the requirement for custom to conform to morality). For a response that the “law of nature has played its part” and no longer has a role, see Oppenheim, Lassa, The Science of International Law: Its Task and Method, 2 AJIL 313, 327–30 (1908)Google Scholar. For a historical discussion of the view that natural law is anterior and superior to positive law, see John, P. Humphrey, On the Foundations of International Law, 39 AJIL 231 (1945)Google Scholar.

25 The assumptions and values of the early twentieth century appear to represent considerably less than immutable natural law when evaluated one hundred years later. Consider the following:

Floyd, Clarke R., A Permanent Tribunal of International Arbitration: Its Necessity and Value, 1 AJIL 342, 348 (1907)Google Scholar.

26 The Martens clause was inserted into agreements on the laws and customs of war because “the High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgment of military commanders.” Thus, it read:

Convention (No. IV) Respecting the Laws and Customs of War on Land, with annex of Regulations, Oct. 18, 1907, pmbl., 36 Stat. 2277, 1 Bevans 631.

27 Commission on The Responsibility of The Authors of The War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference (Mar. 29, 1919), reprinted in 14 AJIL 95, 115(1920).

28 Id. at 117. The two U.S. members of the commission took a more positivist view and dissented from the statement that individuals could be tried for having violated the “laws of humanity.” Id. at 134.

29 James, W. Garner, Punishment of Offenders Against the Laws and Customs of War, 14 AJIL 70, 91 (1920)Google Scholar (quoting Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles), June 28, 1919, Art. 227, 225 Consol. TS 189). The government of the Netherlands refused to extradite the emperor, and he was never tried.

30 Id. at 82-85.

31 See, e.g., Gordon, E. Sherman, The Nature and Sources of International Law, 15 AJIL 349 (1921)Google Scholar, and his earlier article Jus Gentium and International Law, 12 AJIL 56 (1918)CrossRefGoogle Scholar.

32 James Wilford, Garner, The Nazi Proscription of German Professors of International Law, 33 AJIL 112 (1939)Google Scholar.

33 Alfred Verdross, von, Forbidden Treaties in International Law, 31 AJIL 571 (1937)Google Scholar.

34 Wright, Quincy, Legal Positivism and the Nuremberg Judgment, 42 AJIL 405 (1948)Google Scholar; see also Wright, Quincy, The Law of the Nuremberg Trial, 41 AJIL 38, 54 (1947)CrossRefGoogle Scholar (aggressive war is prohibited by a rule of international law, resting upon “general principles of justice”).

35 United States v. Krupp, 9 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at 1395 (1950)Google Scholar. The statement was dicta because no such agreement was ever found, but the case represents the first majority opinion to suggest limitations on freedom to contract treaties.

36 See Silving, Helen, In, re Eichmann: A Dilemma of Law and Morality, 55 AJIL 307 (1961)Google Scholar.

37 The terms jus cogens and peremptory norms are used interchangeably. Article 53 of the VCLT, supra note 4, is entitled “Treaties conflicting with a peremptory norm of general international law (jus cogens).”

38 Verdross, supra note 33. Verdross returned to this subject three decades later as the Vienna Convention on the Law of Treaties was being negotiated. Verdross, Alfred, Jus Dispositivum and Jas Cogens in International Law-, 60 AJIL 55 (1966)Google Scholar [hereinafter Verdross, Jus Dispositivum].

39 Costa Rica V.Nicaragua (Central Am. Ct. Justice Sept. 30, 1916), translated and reprinted in 11 AJIL 181 (1917)Google Scholar.

40 Wright, Quincy, Conflicts Between International Law and Treaties, 11 AJIL 566 (1917)Google Scholar.

41 Oscar Chinn, 1934 PCIJ (ser. A/B) No. 63, at 149-50 (Schücking, J. dissenting). For a discussion, see H. Steiner, Arthur, Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice, 30 AJIL 414, 417–19 (1936)Google Scholar.

42 The Law of Treaties, Harvard Research in International Law, 29 AJIL Supp. 655 (1935)Google Scholar.

43 Quincy Wright would probably have responded that it is unnecessary to have recourse to jus cogens when a treaty purports to deny third parties their rights under customary international law because those affected would not have given their consent to the “new rule” and thus the agreement would not be enforced against them.

44 Verdross, supra note 33, at 572.

45 Id. at 574. Verdross may well have had in mind the Austrian capitulation to Nazi Germany.

46 Writing during the Great Depression, Verdross made reference specifically to the immorality of an obligation to pay foreign debts to the point that essential public services were affected within a state. Id. at 575.

47 See Sztucki, Jerzy, Jus Cogens And The Vienna Convention On The Law Of Treaties (1974)CrossRefGoogle Scholar.

48 For an excellent discussion of these theories, see Kolb, Robert, Théorie du lus Cogens International, 2003 Rev. Belge de Droit International 5, 14–28 Google Scholar. For a “constitutional” approach to jus cogens, see Kirchner, Stefan, Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System? 5 German. L.J. 47 (2004)Google Scholar.

49 Henkin, Louis, International Law: Politics, Values and Functions, 216 Recueil des Cours 9, 45 (1989 IV)Google Scholar; Weil, supra note 2; Danilenko, supra note 8, at 42; Lukashuk, I. I., The Principle Pacta Sunt Servanda and the Nature of Obligation Under International Law, 83 AJIL 513 (1989)CrossRefGoogle Scholar.

50 S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 18 (Sept. 7).

51 Military and Paramilitary Activities in andAgainst Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 135, para. 269 (June 27).

52 Sir Humphrey Waldock proposed the concept and three categories of jus cogens: (1) illegal use of force, (2) international crimes, and (3) acts or omissions whose suppression is required by international law. The categories were dropped by the ILC, because each garnered opposition from at least two-thirds of the Commission. See Sztucki, supra note 47; Richard, D. Kearney & Robert, E. Dalton, The Treaty on Treaties, 64 AJIL 495, 535 (1970)Google Scholar.

53 Gómez Robledo, supra note 8, at 17, called it “une innovation profonde et un grand pas franchi.”

54 VCLT, supra note 4, Art. 53.

55 Id.

56 Id, Art. 64.

57 Contrast the views of Verdross, supra note 38, and Schwelb, Egon, Some Aspects of International’ Jus Cogens as Formulated by the International Law Commission, 61 AJIL 946 (1967)Google Scholar, with those of Schwarzenberger, Georg, International Jus Cogens? 43 Tex. L. Rev. 455, 467 (1964-1965)Google Scholar (“The evidence of international law on the level of unorganized international society fails to bear out any claim for the existence of international jus cogens.”)

58 Of the 110 states that participated in the plenary second session of the Vienna Conference, 87 voted in favor of Article 53 (then numbered Article 50) and 8 against (including Australia, Belgium, France, Switzerland, and Turkey). There were 12 abstentions (including Japan and the United Kingdom). United Nations Conference on The Law of Treaties, Official Records, Second Session 107, UN Doc. A/CONF.39/ll/Add.1 (1969)Google Scholar, UN Sales No. E.70.V.6 (1970).

59 The VCLT was adopted by a vote of 79-1-19. 1969 UN Y.B. 734.

60 2 United Nations Conference on The Law of Treaties Between States and International Organizations or Between International Organizations, Official Records 39, 44, UN DOC. A/CONF. 129/16/Add. 1 (Vol. II) (1986)Google Scholar. According to the commentary, “It is apparent from the draft articles that peremptory norms of international law apply to international organizations as well as to States, and this is not surprising.” Id. at 39.

61 1 id. at 17, UN Doc. A/CONF. 129/16 (Vol. I). See also the concerns expressed by Germany, and similar objections raised to Article 64, which concerns the emergence of a new peremptory norm of general international law. Id. at 17.

62 Id. at 186-94.

63 M a t 188.

64 Włdysław, Czapliński, Concepts of Jus Cogens and Obligations Erga Omnes in International Law, 1997-1998 Polish Y.B. Int’l L. 87 Google Scholar, notes the objections made during the travaux préparatoires of the VCLT and the claims of several states that the proposal on jus cogens constituted a progressive development (Argentina, Mali, and Sierra Leone). He concludes: “It seems manifest that jus cogens did not constitute part of customary law before the concluding of the Vienna Convention and it binds exclusively parties to the Convention.” Id. at 88. He adds: “Generally speaking, states are not particularly wishing to invalidate their international obligations because of their hypothetical non-conformity with jus cogens.” Id. at 89.

65 Malekian, Farhad, The System of International Law: Formation, Treaties, Responsibility, sec. 2.2.1.2 (1987)Google Scholar. “The International Law Commission, in its draft proposal on the law of treaties, concluded that the rules of internationally jus cogens are the consequences of international positive law.” As a result of this purely consensual regime, new states are able to accept to reject the general norms of peremptory character. Id., sec. 2.2.1.4. In addition, because jus cogens norms must represent the general will of the community of states as a whole, there cannot be regional peremptory norms. Mosler disagrees about the consequences of jus cogens on new states, considering that they are bound. Mosler, Hermann, Cogens, Jus im Völkerrecht, 1968 Schweizerisches Jahrbuch Für Internationales Recht 9 Google Scholar, cited in Heinrich, Berhand Reimann, Cogens, Ius im Völkerrecht 46(1971)Google Scholar.

66 Suy, Eric, Remarks, in Change and Stability in International Law-Making 97 (Cassese, Antonio & Joseph, H. H. Weiler eds., 1988)Google Scholar.

67 Kelsen, Hans, The Pure Theory of Law 214–17 Google Scholar ( Knight, Max trans., 2d rev. ed. 1967) (1937)Google Scholar. Oscar Schachter identified thirteen theories about the origin of obligation in international law. Schachter, Oscar, Towards a Theory of International Obligation, 8 VA. J. Int’l L. 300 (1968)Google Scholar.

68 A natural-law origin of international obligation was the dominant theory among scholars until the nineteenth century, when positivism and an emphasis on the sovereignty of states emerged in theory and practice.

69 Tomuschat, supra note 8, at 210-11.

70 Georges Abi-Saab grounds Jus cogens in necessity. He asks whether a voluntarist legal system can govern modern international relations and responds: “I think this is an impossibility. . . . In any case, it no longer reflects or faithfully describes the actual system of international law.” Jus cogens is necessary, because the international legal system must have a structure, and cannot avoid establishing a certain hierarchy of its norms. Georges, Abi-Saab, Remarks, in Change and Stability in International Law-Making, supra note 66, at 96 Google Scholar.

71 Charney, supra note 7, at 530.

72 The term “universal law” is used by Charney, supra note 7, to refer to rules that bind all states, even those that object to the rule.

73 The judgment of March 24, 1982, of the arbitral tribunal in the Aminoil v. Kuwait cast rejected the claim that permanent sovereignty over natural resources constitutes a principle of jus cogens. Kuwait and Am. Independent Oil Co., 21 ILM 976 (1982) (Sultan, Reuter, & Arbs, Fitzmaurice., 1982)Google Scholar.

74 Jiménez de Aréchaga, E., General Course in Public International Law, 159 Recueil des Cours 9, 67 (1978 I)CrossRefGoogle Scholar.

75 In his later article on the topic, Verdross argued that “all rules of general international law created for a humanitarian purpose” constitute jus cogens. Verdross, Jus Dispositivum, supra note 38, at 59.

76 Erika de, Wet, The Prohibition of Torture as an International Norm o/Jus Cogens and Its Implications for National and International Customary Law, 15 Eur. J. Int’l L. 97 (2004)Google Scholar.

77 Louis, René Beres, Prosecuting Iraqi Crimes Against Israel During the Gulf War: Jerusalem’s Rights Under International Law, 9 Ariz. J. Int’l & Comp. L. 337 (1992)Google Scholar (jus cogens obligation to assassinate in specified circumstances).

78 Upadhye, Shashank, The International Watercourse: An Exploitable Resource for the Developing Nation Under International Law? 8 Cardozo J. Int’l & Comp. L. 61 (2000)Google Scholar (right to development as a jus cogens norm).

79 In contrast to the views of those who call humanitarian norms jus cogens, Michael H. Allen asserts that globalist social forces ideologically committed to neoliberalism have succeeded in making free trade a peremptory norm in international law second only to nonaggression, and have preempted the emergence of countervailing peremptory norms on human rights and environmental imperatives. Michael, H. Allen, Globalization and Peremptory Norms in International Law: From Westphalian to Global Constitutionalism? 41 Int’l Pol. 341 (2004)Google Scholar:

Id. at 346.

80 See, e.g., Patricia, Y. Reyhan, Genocidal Violence in Burundi: Should International Law Prohibit Domestic Humanitarian Intervention? 60 Albanyl. Rev. 771 (1997)Google Scholar (genocide).

81 Jan, F. Triska & Robert, M. Slusser, Treaties and Other Sources of Order in International Relations: The Soviet View, 52 AJIL 699, 710, 717–18 (1958)Google Scholar. Grigorii Tunkin proclaimed in 1974 that the Brezhnev doctrine, which he called proletarian internationalism, was a jus cogens norm. Tunkin, G. I., Theory of International Law 444 (William, E. Butler trans., 1974)Google Scholar.

82 Czapliński, supra note 64, at 88.

83 Prosecutor v. Furundžija, No. IT-95-17/1-T10 (Dec. 10, 1998), available at <http://www.un.org/icty>.

84 De Wet, supra note 76.

85 Theoretically, of course, the concept would also be applicable if two or more states decided to enter into an agreement to commit genocide or territorial acquisition by aggression and one of them later changed its mind. According to the VCLT, only a party to an illegal agreement can invoke the illegality to escape its treaty obligations. The ILC articles on state responsibility go further and impose obligations on all states to repress breaches of jus cogens norms; third states may have standing to complain as well if the jus cogens norm being breached also involves an obligation erga omnes.

86 See, e.g., Right of Passage over Indian Territory (Port. v. India), Merits, 1960 ICJ Rep. 6, at 135, 139-140 (Apr. 12) (Renandes, J. ad hoc, dissenting); South West Africa, Second Phase (Eth. v. S. Afr.; Liber, v. S. Afr.), 1966 ICJ Rep. 6, 298 (July 18) (Tanaka, J., dissenting).

87 Gabčikovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ Rep. 7, para. 112(Sept.25) (noting that neither side had contended that new peremptory norms of environmental law had emerged).

88 See North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, para. 72 (Feb. 20) (declining to enter into or pronounce upon any issue concerning jus cogens).

89 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 100, para. 190 (June 27) (citing the ILC assertion that the norm against aggression is a peremptory norm as evidence that it is an obligation under customary international law).

90 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, para. 79 (July 8).

91 Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility (Int’l Ct. Justice Feb. 3, 2006) [hereinafter Congo v. Rwanda Judgment].

92 The DRC asserted a breach of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, 1465 UNTS 85, to which Rwanda is not a party; invoked but failed to maintain a claim based on the Convention on the Privileges and Immunities of the Specialized Agencies, Nov. 21, 1947, 33 UNTS 261; asserted that Rwanda’s appearance to contest jurisdiction and a request for provisional measures amounted to an acceptance of jurisdiction; and asserted jurisdiction of the ICJ based on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277 [hereinafter Genocide Convention]; Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS 195 [hereinafter Racial Discrimination Convention]; Article 29( 1) of the Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 UNTS 13; Article 75 of the WHO Constitution, July 22, 1946, 62 Stat. 2679, 14 UNTS 185; Article XIV(2) of the Constitution of the United Nations Educational, Scientific and Cultural Organization, Nov. 16, 1945, TIAS No. 1580, 4 UNTS 275; Article 14(1) of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage), Sept. 23, 1971, 24 UST 564, 974 UNTS 177; and VCLT, supra note 4, Art. 66.

93 Congo v. Rwanda Judgment, para. 64 (citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595, 616 (July 11)).

94 Neither of the dissenting judges contested the existence of jus cogens; they would have found jurisdiction on other bases.

95 Congo v. Rwanda Judgment, para. 64.

96 Id., para. 65 (citing Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Provisional Measures, 2002 ICJ Rep. 245 (July 10)). Even if the reservation had been held invalid, it is not clear that the result would have been in favor of jurisdiction. The consequences of an invalid reservation set forth in the Vienna Convention on the Law of Treaties do not include ignoring the reservation and treating the party as if the reservation had not been made. See VCLT, supra note 4, Arts. 20, 21.

97 Congo v. Rwanda Judgment, para. 67. The Court also noted its previous advisory opinion finding that the Genocide Convention permits reservations, pointed out that it had given effect to Article IX reservations in prior cases, and noted that the DRC had failed to object to Rwanda’s reservation when it was made. Id., paras. 66, 68 (citing Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15 (May 28)). Five judges in a separate opinion indicated some concerns about the Court’s treatment of Rwanda’s reservation to Article IX of the Genocide Convention. Seeking to restrict the Judgment to the facts of this case, they noted that the ICJ gives an important role to the Court with respect to the fulfillment of the Convention. “It is thus not self-evident that a reservation to Article IX could not be regarded as incompatible with the object and purpose of the Convention and . . . this is a matter that the Court should revisit for further consideration.” Id., Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Owada, and Simma, para. 29.

98 Article 66(a) provides that “any one of the parties to a dispute concerning the application or the interpretation of Article 53 or 64 [the provisions concerning Jus cogens] may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration.”

99 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, para. 12 (Feb. 14). The Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations were said to reflect customary international law. Id., para. 52.

100 Id., para. 51. Only one of the ten opinions in die Arrest Warrant case mentions the concept of jus cogens norms despite its obvious relevance to the issues in the case. The dissenting opinion of Judge Al-Khasawneh refers to jus cogens, linking immunity and impunity. Dissenting Opinion of Judge Al-Khasawneh, id. at 95, para. 7.

101 Congo v. Rwanda Judgment, supra note 91, Separate Opinion of Judge W hoc Dugard, para. 6 [hereinafter Dugard Separate Opinion].

102 VCLT, supra note 4, Art. 53.

103 Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, 282, 287, Arts. 40, 41, UN Doc. A/56/10 (2001) [hereinafter State Responsibility Articles].

104 Dugard Separate Opinion, supra note 101, para. 8 (citing Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), Further Requests for Provisional Measures, 1993 ICJ REP. 325, 440 (Sept. 13) (Lauterpacht, J. ad hoc, sep. op.)). See also the views of the European Court of First Instance in notes 121-34 infra and corresponding text.

105 Dugard Separate Opinion, supra note 101, para. 10.

106 Id, para. 13 (citing Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3 (Feb. 14); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16(June21);East Timor (Port. v. Austl.), 1995 ICJ Rep. 90 (June 30)).

107 Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, para. 61, 34 Eur. Hum. Rts. Rep. 11 (2002).

108 Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion, Inter-Am. Ct. Hum. Rts. (ser.A)No. 18(2003).

109 Id, para. 4.

110 Id, para. 47.

111 Id.

112 Id.

113 Id.

114 Id.

115 Id, paras. 60, 110.

116 Id, para. 73.

117 Id., para. 99. In stating that jus cogens has been developed by international case law, the Court wrongly cited the ICJ Judgments in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595 (July 11), and the Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3 (Feb. 5), neither of which discusses the subject.

118 Juridical Condition and Rights of the Undocumented Migrants, para. 100 (quoting Juridical Condition and Rights of the Child, Advisory Opinion, Inter-Am. Ct. Hum. Rts. (ser. A) No. 17, para. 45 (2002)).

119 Id, para. 101.

120 Id, para. 109.

121 Case T-315/01, Kadi v. Council (Eur. Ct. Justice Sept. 21, 2005).

122 SC Res. 1267, para. 4(b) (Oct. 15, 1999), 39ILM 235 (2000); SC Res. 1333 (Dec. 19, 2000), 40ILM 509 (2001); SC Res. 1390 (Jan. 16, 2002), 41 ILM 511 (2002).

123 The Sanctions Committee designation was implemented by Commission and Council action. Commission Reg. 2062/2001, 2001 O.J. (L 277) 25; Council Reg. 881/2002, 2002 O.J. (L 139) 9.

124 Kadi, paras. 181-83 (citing Article 103 of the UN Charter, quoted supra note 11).

125 Id., para. 183.

126 The Court notes that the Community is not directly bound by the Charter because it is not a member of the United Nations, but on an agency theory concludes that the member states could not confer on the Community more powers than they possessed and therefore the Community also must comply. Id., paras. 192-95.

127 Id, para. 224.

128 Id, para. 225.

129 Id., para. 226. Perhaps the Court was influenced by the opinion of Judge Lauterpacht in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo. (Serb. & Mont.)), supra note 104, where he asserted that the Security Council is bound by jus cogens norms. 1993 ICJ Rep. at 440, para. 100.

130 Kadi, para. 288.

131 Id, para. 231.

132 Id, para. 230.

133 Id, para. 274.

134 Id, paras. 286, 288.

135 Analogous judicial reasoning by a majority of the U.S. Supreme Court interpreting the U.S. Bill of Rights to include rights of dignity and personal autonomy has generated considerable controversy. See Roper v. Simmons, 543 U.S. 551 (2005) (prohibition on juvenile executions); Lawrence v. Texas, 539 U.S. 558 (2003); Atkins v. Virginia, 536 U.S. 304 (2002) (prohibition on execution of mentally retarded).

136 Christopher, A. Ford, Adjudicating Jus Cogens, 13 WIS. Int’l L.J. 145, 145 (1994)Google Scholar.

137 Victims of the Tugboat “13 de Marzo” v. Cuba, Case 11.436, Inter-Am. C.H.R., Report No. 47/96, OEA/Ser.L/V/II.95, doc. 7 rev. 179 (1996).

138 Michael Domingues (United States), Case 12.285, Inter-Am. C.H.R., Report No. 62/02, OEA/Ser.L/V/11.117, doc.l.rev.l (2003).

139 Id., para. 49 (quoting Roach & Pinkerton v. United States, Case 9647, Inter-Am. C.H.R., Res. No. 3/87, OEA/Ser.L/V/II.71 (1987)).

140 Id.

141 Id.

142 Id, para. 50.

143 Id, para. 64.

144 Prosecutor v Furundžija, No IT-95-17/1-T, ¶¶ 153-54 (Dec. 10, 1998).

145 ILO Convention (No. 29) on Forced or Compulsory Labour, June 28, 1930, 39 UNTS 55.

146 Report of the Commission of Inquiry on Forced Labour in Myanmar (Burma), 81 ILO Off. Bull. (ser. B), Special Supp., para. 538 (1998).

147 UN Human Rights Comm., General Comment No. 29, States of Emergency (Article 4), UN Doc. CCPR/C/21/Rev.l/Add.ll (2001).

148 Id, para. 11.

149 Id.

150 ICCPR, supra note 13, Art. 4(1).

151 Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 940 (D.C. Cir. 1988).

152 See, e.g., Siderman de Blake v. Republic of Arg., 965 F.2d 699 (9th Cir. 1992), cert, denied, 507 U.S. 1017 (1993); Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004), cert, denied, 2005 U.S. Lexis 3351 (Apr. 18, 2005); Sampson v. Fed. Republic of Germany, 250 F.3d 1145 (7th Cir. 2001); Hwang Geumjoo v. Japan, 332 F.3d679 (D.C. Cir. 2003); Princz v. Fed. Republic of Germany, 26 F.3d 1166 (D.C. Cir. 1994); Kane v. Winn, 319 F.Supp.2d 162, 199 (D. Mass. 2004).

153 Regina v. Bow Street Metro. Stipendiary Magistrate, Ex parte Pinochet (No. 3), [1999] 2 All E.R. 97, 179, [2000] 1 A.C. 147 (H.L.).

154 Prefecture of Voiotia v. Fed. Republic of Germany, Areios Pagos [Supreme Court] 11 /2000 (Greece); Ferrini v. Fed. Republic of Germany, Cass., sez. un., 6 Nov. 2003, n.5044, 87 Rivista di Diritto Internazionale 539 (2004). The Italian case is discussed in Pasquale De Sena & Francesca De Vittor Google Scholar, State Immunity and Human Rights: The Italian Supreme Court Decision on the Ferrini Case, 16 Eur. J. Int’l L. 112 (2005)CrossRefGoogle Scholar.

155 Bouzari v. Iran, C38295, [2004] O.J. 2800 (Ont. Ct. App. June 30, 2004); Jones v. Saudi Arabia, [2004] EWCA(Civ) 1394, [1].

156 28 U.S.C. §1350 (2000) (“The [federal] district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”)- The ATS is part of the Judiciary Act of 1789, ch. 20, §9(b).

157 Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). The only U.S. Supreme Court decision to consider issues arising under the ATS, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)Google Scholar, also failed to mention jus cogens.

158 See de Wet, supra note 76, at 101 n. 15. The proposed amendment would have provided for summary deportation of illegal immigrants.

159 Bundesverfassung der Schweizerischen Eidgenossenschaft [Constitution], April 18, 1999, Volksinitiative auf Teilrevision der Bundesverfassung, Art. 139.

160 Bundesgericht [BGer] [Federal Court], Nov. 3, 1982, 108 Entscheidungen des Schweizerischen Bundesgerichts [BGE] lb 408, 412 (Switz.).

161 BGer, Apr. 17, 1985, 111 BGE lb 138, 142.

162 De Wet, supra note 76, at 112.

163 State Responsibility Articles, supra note 103, at 282, Art. 40 Commentary, para. 2.

164 Id. at 287, Art. 41 Commentary, para. 3.

165 Id.

166 SC Res. 216 (Nov. 12, 1965).

167 SC Res. 662, para. 1 (Aug. 9, 1990), 29 ILM 1327 (1990) (declaring that the annexation of Kuwait had “no legal validity, and is considered null and void,” and calling on the international community not to recognize the annexation and to refrain from any action or dealing that might be interpreted as a recognition of it).

168 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, para. 126 (June 21).

169 Necessity has long been seen as underlying general international law or jus gentium on which positive law is based. &f Ago, Roberto, Positive Law and International Law, 51 AJIL 691, 693 n.9 (1957)CrossRefGoogle Scholar (citing Christian Wolff).

170 State Responsibility Articles, supra note 103, at 283, Art. 40 Commentary, para. 3.

171 For a discussion of the distinctions, see Koji, Teraya, Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights, 12 Eur. J. Int’l L. 917 (2001)Google Scholar. On obligations erga omnes, see André de, Hoogh , Obligations Erga Omnes and International Crimes (1996)Google Scholar; Ragazzi, Maurizio, The Concept Of International Obligations Erga Omnes (1997)Google Scholar.

172 Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, para. 33 (Feb. 5).

173 Id.; see also East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, para. 29 (June 30); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595, para. 31 (July 11).

174 The collective nature of the state as subject of international law makes imposition of state criminal responsibility problematic. Although the International Law Commission included a provision on state crimes in early versions of its articles on state responsibility, the provision was eventually excluded.

175 The treaty itself might be considered void as a violation of peremptory norms if it required or authorized the commission of an international crime.

176 Prosecutor v. Tadić, Judgment in Sentencing Appeals, No. IT-94-1-A, ¶69 (Jan. 26, 2000). For a criticism of this view and discussion of the conflicting practice of the ICTY, see Allison Danner, Marston, Constructing a Hierarchy of Crimes in International Criminal Law Sentencing, 87 Va. L. Rev. 415 (2001)Google Scholar.

177 The UN General Assembly’s actions on drift-net fishing were directed at members and nonmembers of the United Nations whose fishing fleets decimated dwindling fish resources through use of the drift-net “walls of death.” The international community made clear its resolve to outlaw drift-net fishing and enforce the ban, albeit it was not contained in a legally binding instrument. Soviet international lawyer S. B. Krylov argued that the decisions of international organizations could be of great importance as a source of international law, provided that the decisions were so recognized, accepted, and applied by the membership at large. Krylov also held this view respecting decisions of the PCIJ. See Triska & Slusser, supra note 81, at 710.

178 E.g., of the International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3, Article 2(1) of which reads that each state party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized . . . by all appropriate means, including particularly the adoption of legislative measures.”

179 Weil, supra note 2, at 414.

180 Texaco Overseas Petroleum Co. & Cal. Asiatic Oil Co. v. Libyan Arab Republic (award of Jan. 19, 1977), 17 ILM 1, 28-29 (1978), 53 ILR 389.

181 Johnston, supra note 9, at xxxiv.

182 See, for example, the decision adopted by the General Council of the WTO on August 1, 2004, containing frameworks and other agreements designed to focus the Doha round of negotiations: “The General Council agrees that this Decision and its Annexes shall not be used in any dispute settlement proceeding under the [Dispute Settlement Understanding] and shall not be used for interpreting the existing WTO Agreements.” Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, para. 2, available at <http://www.wto.org/english/tratop_e/dda_e/draft_text_gc_dg_31july04_e.htm>.

183 E.g., GA Res. 46/215 (Dec. 20, 1991) (banning large-scale pelagic drift-net fishing).

184 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 11, 1998, 30 ILM 1 (1999).

185 Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 19 ILM 15 (1980).

186 Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71.

187 International Atomic Energy Agency, The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-proliferation of Nuclear Weapons, IAEA Doc. INFCIRC/153 (May 1971).

188 ILO, Declaration on Fundamental Principles and Rights at Work (June 1998)Google Scholar, available at <http://www.ilo.org/public/english/standards/index.htm>.

189 Weil, supra note 2, at 415, 437.

190 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

191 Charney, supra note 7, at 529.

192 Id. at 530.

193 Id. at 541.

194 See LOS Convention, supra note 16, Art. 137(2); Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, pmbl., para. 2, 18 UST 2410, 610 UNTS 205.

195 See, e.g., VCLT, supra note 4, Art. 53; LOS Convention, supra note 16, Arts. 136-37.

196 UN Charter Art. 2.