60 Am. J. Int'l L. 55 (1966)
Jus Dispositivum and Jus Cogens in International Law

handle is hein.journals/ajil60 and id is 69 raw text is: JUS DISPOSITIVUM AND JUS COGENS IN
Professor emzeritus of the University of Vienna, Member of the
Internationa1 Law Commission, the European Court of Human
Rights and the Institute of International Law
Nearly three decades ago I published in this JouRNAL an article 1 in
which I tried to prove that even in international law there exist rules having
the character of juts cogens; i.e., norms with which treaties must not conflict.
Since my eminent colleague in the International Law Commission, Am-
bassador Tabibi, mentioned in a meeting of this Commission that the view
expressed in my article foreshadowed the solution embodied in Article
37 of the Commission's draft Convention on the Law of Treaties concerning
the problem of juts cogens in international law,2 I feel obliged to defend
this draft against the criticism directed against it by the eminent English
lawyer, Professor Georg Schwarzenberger.3
For this purpose it seems to me necessary to point out that, according
to the general opinion of writers and jurists of international law, the power
of states to conclude international treaties is in principle unlimited.
They are in principle competent to enter into international agreements on
any subject whatever. The problem arises, however, if under general
international law there are exceptions to this principle. Hence the ques-
tion is whether all norms of general international law may be repealed by
treaty provisions in relations among the contracting parties, or whether
there are norms of general international law restricting the freedom of
states to conclude treaties. In other words the question is whether all
norms of international law have the character of jus dispositivum or if
there exist some norms having the character of jus cogens too, from which
no derogation is permitted by an agreement inter partes.
In the modern positivist doctrine of international law no settled opinion
can be found on this question.      Only a few writers deal with it. In the
indexes of most systems, textbooks and digests of international law, the
I Forbidden Treaties in International Law, 31 A.J.I.L. 571-577 (1937). See, fur-
ther, on this topic before the second world war, von der Heydte, Die Erscheinungs-
formen des zwischenstaatlichen Rechts: jus cogens und jus dispositivum im V5lkerreeht,
in 16 Zeitschrift fOr Valkerrecht 461 et seq. (1932); and Jurt, Zwingendes V6lkerrecht
2See 1 11.C. Yearbook (1963) 63. As the Commission was informed by this com-
munication of my point of view in this question, I abstained from speaking about the
substance of Art. 37, inasmuch as I was in complete agreement with the draft proposed
by the Special Reporter, Sir Humphrey Waldock.
3 International jus cogens? in 43 Texas Law Review (1965), and The Problem
of International Public Policy, in Current Legal Problems (1965), pp. 191-214.

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