The UN International Law Commission fiddles as the Earth burns
Faced with pressing challenges to the survival of the Earth and its inhabitants, it is now necessary to bring into our reasoning the concept of ‘instant jus cogens.’
By Dr. Bertrand Ramcharan*
The Earth is burning, afflicted by climate change, environmental destruction, and the criminality of pervasive gross violations of human rights world-wide. And yet the International Law Commission (ILC) has just submitted to the UN General Assembly twenty-three “Conclusions” on peremptory norms of international law—or ‘jus cogens’ in technical parlance—which bear little relevance to this dire state of affairs.
A GRIEVOUS CONCEPTUAL GAP...
Using a hallowed definition, the ILC defines a peremptory norm of general international law (jus cogens) as a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted (Conclusion 3). So far, so good.
Peremptory norms, it adds, reflect and protect fundamental values of the international community. They are universally applicable and hierarchically superior to other rules of international law (Conclusion 2). Partially good: values, yes; but what about the survival of the Earth and its inhabitants? There is a grievous conceptual gap here. A more appropriate conclusion might have read: “reflect and protect fundamental values of the international community and the imperative need to protect the survival and welfare of the Earth and its inhabitants.”
...AND A CRIPPLING OMISSION
To identify a norm as jus cogens, the ILC considers that there must be evidence that such a norm is accepted and recognized as such by the international community (Conclusion 6). The traditional bases for peremptory norms, it adds, are customary international law, treaty provisions, and general principles of law (Conclusion 5).
However, there is a crippling omission here: authoritative pronouncements by the assembled leadership of the international community—in statements such as the Millennium Declaration, for example. When, in the 1960s, the UN General Assembly declared outer space and the celestial objects to be the common heritage of humankind, distinguished international lawyers—including my former teacher Professor Bin Cheng, an authority on sources and methods of international law—wrote that the General Assembly resolution represented “instant international customary law.”
Faced with pressing challenges to the survival of the Earth and its inhabitants, it is now necessary to bring into our reasoning the concept of ‘instant jus cogens.’ One might derive such peremptory norms, for example, from the recent resolution of the UN General Assembly declaring the human right to a safe, healthy and sustainable environment.
According to the ILC, forms of evidence for acceptance and recognition of peremptory norms include: “public statements made on behalf of States; official publications; government legal opinions; diplomatic correspondence; constitutional provisions; legislative and administrative acts; decisions of national courts; treaty provisions; resolutions adopted by an international organization or at an intergovernmental conference; and other conduct of States” (Conclusion 8). Authoritative statements of world leaders would fit here.
The International Law Commission further concludes that States shall cooperate to bring to an end, through lawful means, any serious breach by a State of an obligation arising under a peremptory norm (Conclusion 19). Here, it would be fair to ask why this only covers breaches by States—what about non-State actors? Given the increasing power of Big Tech, and the pressing need to protect natural resources (to name but two factors), this appears to be a huge oversight.
In Conclusion 23, the ILC provides the following “non-exhaustive list of norms that the International law Commission has previously referred to as having that status”—namely, that of a peremptory norm of general international law:
- The prohibition of aggression
- The prohibition of genocide
- The prohibition of crimes against humanity
- The basic principles of international humanitarian law
- The prohibition of racial discrimination and apartheid
- The prohibition of slavery
- The prohibition of torture
- The right to self-determination
In its report transmitting its Conclusions to the General Assembly, the ILC commented that these norms “are presented in no particular order. Their order does not, in any way, signify a hierarchy among them.” The ILC acknowledges that “To elaborate a list of peremptory norms […] even a non-exhaustive list, would require a detailed and rigorous study of many potential norms to determine which of those potential norms meet the criteria set out in […] the present draft conclusions (A/77/10, Commentary to Conclusion 23).
That’s all very well, but the non-exhaustive nature of the list notwithstanding, there are some surprising absences—born, we would suggest, out of the fact that the ILC has apparently placed “fundamental values” over the protection of the Earth and its inhabitants. Most notably, while including “principles of humanitarian law,” it seems fairly extraordinary that the Commission did not also include “the basic principles of international human rights law.” Surely Fundamental Universal Rights—including, of course, the right to life—self-evidently have the status of peremptory norms? Furthermore, States have a legal duty to have in place an adequate and effective national human rights protection system.
The international legal landscape is a challenging one, and we should be grateful to the ILC for these ‘Conclusions’ on peremptory norms. Most of the omissions above—the failure to recognize authoritative pronouncements by the assembled leadership of the international community as a source of peremptory norms; the failure to recognize Fundamental Universal Rights as a peremptory norm; the failure to consider breaches by non-State actors—are oversights that can be amended.
However, it behooves us to observe that the ILC appears to have blithely performed a technical task while what is at stake is our very survival—it is fiddling while the Earth burns. Consideration of peremptory norms of general international law should have led the ILC to consider the most pressing issues: States have a legal responsibility to protect (RtoP) their populations from genocide, ethnic cleansing, crimes against humanity, and war crimes—and above all, to act for the protection and preservation of the Earth and its inhabitants.
We offer these observations as a contribution to enhancing the Conclusions of the ILC—while acknowledging and appreciating its effort thus far.
*Dr. Ramcharan is a former Special Adviser to the UN Secretary-General and Chancellor of the University of Guyana. His last book is Modernizing the Role of the International Court of Justice. (Asser/Springer, 2022).