Summaries of the Work of the International Law Commission
Peremptory norms of general international law (Jus cogens)
* At its sixty-ninth session, in 2017, the Commission decided to change the title of the topic from “jus cogens” to “peremptory norms of general international law (jus cogens).
See also: Analytical Guide | Texts and Instruments
At its sixty-sixth session, in 2014, the Commission included the topic “Jus cogens” in its long-term programme of work.1 A syllabus describing the possible overall structure of, and approach to, the topic was annexed to that year’s report of the Commission.2
The General Assembly, in resolution 69/118 of 10 December 2014, took note of the inclusion of the topic in the long-term programme of work of the Commission.
At its sixty-seventh session, in 2015, the Commission decided to include the topic “Jus cogens” in its programme of work and appointed Dire D. Tladi as Special Rapporteur for the topic.3
At its sixty-eighth session, in 2016, the Commission had before it the first report of the Special Rapporteur,4 which set out the Special Rapporteur’s general approach to the topic, addressed conceptual issues relating to jus cogens (peremptory norms of international law), including their nature and definition, and proposed three draft conclusions. The report also invited the Commission to comment on its preferred approach to the topic. Upon its consideration of the first report of the Special Rapporteur, the Commission referred draft conclusions 1 and 3 to the Drafting Committee. The Commission subsequently took note of the interim report of the Drafting Committee on the topic, containing the draft conclusions it had provisionally adopted, which had been transmitted to the Commission for information only.5
At its sixty-ninth session, in 2017, the Commission had before it the second report of the Special Rapporteur,6 which sought to set out the criteria for the identification of peremptory norms (jus cogens), taking the 1969 Vienna Convention on the Law of Treaties as a point of departure. The Commission subsequently decided to refer draft conclusions 4 to 9, as contained in the report of the Special Rapporteur, to the Drafting Committee, and decided to change the title of the topic from “Jus cogens” to “Peremptory norms of general international law (jus cogens)”, as proposed by the Special Rapporteur. The Commission subsequently took note of the interim report of the Chair of the Drafting Committee on draft conclusions 2 [3 (2)], 4, 5, 6 and 7 provisionally adopted by the Committee, which was submitted to the Commission for information.7
At its seventieth session, in 2018, the Commission had before it the third report of the Special Rapporteur,8 which considered the consequences and legal effects of peremptory norms of general international law (jus cogens) and contained proposals for 13 draft conclusions (draft conclusions 10 to 23). The Commission subsequently decided to refer the draft conclusions, as contained in the report of the Special Rapporteur, to the Drafting Committee. The Commission subsequently took note of the interim reports of the Chair of the Drafting Committee on draft conclusions 8 and 9, as well as 10 to 14, provisionally adopted by the Committee, which were presented to the Commission for information.9
At its seventy-first session, in 2019, the Commission had before it the fourth report of the Special Rapporteur,10 which addressed the questions of regional jus cogens and the inclusion of an illustrative list of peremptory norms of general international law (jus cogens). One draft conclusion containing a non-exhaustive list of peremptory norms of general international law (jus cogens) was proposed. The Commission referred the proposed draft conclusion to the Drafting Committee on the understanding that the list contained therein would be moved to an annex and that it would be limited to those peremptory norms of general international law (jus cogens) that the Commission had previously referred to. On the basis of the report of the Drafting Committee, the Commission adopted the draft conclusions on peremptory norms of general international law (jus cogens) on first reading, with commentaries thereto. The Commission decided, in accordance with articles 16 to 21 of its statute, to transmit the draft conclusions, through the Secretary-General, to Governments for comments and observations, with the request that such comments and observations be submitted to the Secretary-General by 1 December 2020.11
At its seventy-third session, in 2022, the Commission considered the fifth report of the Special Rapporteur,12 as well as comments and observations received from Governments.13 In his fifth report, the Special Rapporteur examined the comments and observations received from Governments on the draft conclusions, including the annex, as adopted on first reading, made proposals for consideration on second reading, in the light of the comments and observations, and proposed a recommendation to the General Assembly. Following its debate on the report, the Commission decided to refer draft conclusions 1 to 23, together with the annex, as contained in the Special Rapporteur’s fifth report, to the Drafting Committee, taking into account the debate in the Commission.14
At the same session, the Commission adopted, on second reading, the draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens), including the annex containing a non-exhaustive list of peremptory norms of general international law (jus cogens). The Commission decided, in conformity with article 23 of its statute, to recommend that the General Assembly take note of the draft conclusions of the International Law Commission on identification and legal consequences of peremptory norms of general international law (jus cogens), annex the draft conclusions to the resolution, ensure their widest dissemination and commend the draft conclusions and annex, together with the commentaries thereto, to the attention of States and to all who may be called upon to identify peremptory norms of general international law (jus cogens) and to apply their legal consequences.15
The final draft consists of twenty-three draft conclusions and a draft annex. The draft conclusions were divided into four parts, as follows: Part One: Introduction (conclusions 1–3); Part Two. Identification peremptory norms of general international law (jus cogens) (conclusions 4–9); Part Three. Legal consequences of peremptory norms of general international law (jus cogens) (conclusions 10–19); Part Four. General provisions (conclusions 20–23); and the annex containing a non-exhaustive list of norms that the Commission has previously referred to as having peremptory status.
By resolution 77/103 of 7 December 2022, the General Assembly decided that its consideration of the chapter of the report of the Commission on the work of its seventy-third session dealing with the topic “Peremptory norms of general international law (jus cogens)” would be continued at the seventy-eighth session of the General Assembly, during the consideration of the report of the Commission on the work of its seventy-fourth session.
1 See Yearbook … 2014, vol. II (Part Two), para. 268.
3 See Yearbook … 2015, vol. II (Part Two), para. 286.
4 Document A/CN.4/693.
5 See Yearbook … 2016, vol. II (Part Two), paras. 98–101.
6 Document A/CN.4/706.
7 See Yearbook … 2017, vol. II (Part Two), paras. 144–147.
8 Document A/CN.4/714.
9 See Yearbook … 2018, vol. II (Part Two), paras. 94–97.
10 Document A/CN.4/727.
11 Official Records of the General Assembly, Seventy-fourth Session, Supplement No. 10 (A/74/10), paras. 49–57.
12 Document A/CN.4/747.
13 Document A/CN.4/748.
14 Official Records of the General Assembly, Seventy-seventh Session, Supplement No. 10 (A/77/10), paras. 35–37.