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PUBLIC INTERNATIONAL LAW
N.L. Lyutov*
NORMS OF JUS COGENS
AND INTERNATIONAL LABOR LAW
Abstract. The article examines the possibility of imperative norms of general international law (jus cogens) in international labor law. Norms of jus cogens hierarchically are the highest source of international law that can not contradict any international treaties and other sources of international law. Meanwhile, in the domestic and foreign labor law doctrine there is an extremely broad range of opinions about what should be included in the jus cogens norms within the national labor law. It can be stated that the representatives of the labor law science are much more liberal to a possible list of jus cogens norms in international labor law than specialists on international law. Taking into account the possible appearance of a jus cogens norm without consent of a sovereign state, the conservative practice of international tribunals in respect of this type of legal norms, as well as the dangers of using this concept not to protect human rights but purely for political purposes, the article suggests a cautious attitude to the norms being considered. On the basis of decisions of international courts the held legitimacy of jus cogens norms in international labor law can be stated with respect to the prohibition of discrimination, as well as the prohibition of slavery as the extreme form of forced labor. As applied to the other, albeit the most important human rights in the labor sphere, it is consistent to talk only about the possibility of their becoming as norms of jus cogens.
Key words: jurisprudence, jus cogens, labor law, international labor law, International Labor Organization, ILO Declaration of 1998, imperative norms, fundamental principles.
The Vienna Conventions on the Law of Treaties of 1969 and 1986 state1 that if an international treaty conflicts with an imperative norm of general international law (jus cogens), it is void. The jus cogens norm itself is understood as a norm «... which is accepted and recognized by the international community of states as a norm as a whole deviation from which is unacceptable and which can be modified only by a subsequent norm of general international law, having the same character»2. A similar notion of universally recognized principles and norms of international law is given by the Plenum of the Supreme Court of the Russian Federation, which comes from the fact that under the gen-
erally recognized principles of international law «... should be understood the imperative fundamental norms of international law, adopted and recognized by the international community of states as a whole, deviation from which is unacceptable», and under the general norm of international law — «... a rule of conduct, adopted and recognized by the international community of states as a whole as legally binding»3.
Jus cogens norms are the only source of international law, in respect of which the general principle of voluntary adoption of international obligations by states is not applicable. In the terminology
1 See Article 53 of the Vienna Convention on the Law of Treaties 1969 // Collection of International Treaties of the USSR. № XLII. 1988. Article 53 of the Vienna Convention on the Law of Treaties between States and international organizations or between international organizations 1986 // Public International Law. Collection of documents. Vol. 1. M., 1996. P. 87-113.
2 Ibidem.
3 Resolution of the Plenum of the Supreme Court of October 10 2003 № 5 «On application generally recognized principles and norms of international law and international treaties of the Russian Federation by the courts of general jurisdiction» // Bulletin of the Supreme Court of the Russian Federation, 2003. № 2. About bad data definitions, see: N. Lyutov. Fundamental international laws and principles labor sphere: problems of definition // Bulletin of labor law and social security law. 2009. № 4. P. 106.
© Lyutov N.L., 2014
* Lyutov Nikita Leonidovich — Candidate of legal sciences, Associate Professor of Labor Law and Social Security
Law Department, Moscow State University named after O.E. Kutafin.
[nlioutov@mail.ru]
123995, г. Москва, ул. Садовая-Кудринская, д. 9.
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of the Constitution of the Russian Federation (Part 4 of Art. 15) they are called generally accepted principles and norms of international law. For international labor law this kind of sources of international law (hereinafter — ILL) is extremely important.
The attempt to treat a jus cogens norms from a purely formal point is doomed to failure. First of all, it is not clear what is meant by the subject of law — «the international community of states as a whole», referred to as a lawmaker in this case. There is no international legal norm that would be adopted as binding by all the states of the world without exceptions. The unanimous adoption of jus cogens norms wasn't meant when formulating the text of the Vienna Convention of 1969. As it is pointed out by the chairman of the drafting committee, acting in the preparation of the Convention, the words «as a whole» were added just to avoid the situation when one state would be able to veto the establishment of norms of jus cogens4. But it's also no sense to talk about a quorum required for adoption of the norm by the «international community».
N. Vitruk believes5 that even a universally accepted norm (i.e. by the overwhelming majority of states) does not generate a duty of the state to respect it, if this rule is not found reflection in a domestic law, in the act of ratification or a state contract. This view is shared by M. Baglay as well6.
M. Lushnikova identifies three characteristics to be met by the ILL norms for recognition as jus cogens norms: a) legal consolidation in international law sources, and b) recognition by of the international community in general, and c) to be imperative (mandatory) and be provided with the international legal guarantees7. The first of these characteristics can hardly be called indisputable. Despite the fact that, as some experts in international law say, after the status of jus cogens norms was formalized in the 1969 Vienna Convention, the «posi-tivization» of this concept occurred8, and we must agree that at their core, these norms have a natural legal basis9. Norms of jus cogens, based on natural
law, take precedence over the main sources of international law, including general principles of law, international treaties and customs10.
Therefore, one can hardly speak of the need of legitimation of the superior source of law in the subordinate. A. Kozik, K. Tomashevsky and E. Volk widen11 the list of features, to which jus cogens norms should correspond in the ILL, and they clarify the requirement of consolidation in international legal instruments, saying that here we should talk about the constituent instruments and declarations of the universal international organizations. Since the charters of international organizations still represent one of the types of international agreements, I think that the same objections are applicable to this requirement.
When it comes to standards of jus cogens, the question arises about the fundamental theoretical debate supporters of natural and positive law. Supporter of the natural legal approach M. Baglay writes12 that many researchers question whether there exist any «universally recognized norms and principles of international law», and if so, what is their content? He refrained from answering this question. The absence of a clear list of jus cogens norms is not accidental. Back in the early XX century L. Tal wrote that a recognized and indisputable criterion for the selection of such rules does not exist «...neither in science nor in the positive law and one does not have to regret about it. Public assessment of legally protected interests changes depending on the economic, political and other conditions and on the cultural level. Notions of public order, the good manners (deanery) and other postulates which the state and individuals must coordinate their actions with, are not the same at different times and at different levels of legal culture»13. The argumentation of the opponents of the recognition of the common principles of international law as a source of law was extended by G. Tunkin and boils down to the fact that such principles work only in a well — organized and effective legal system and since international law is not such a system, then the existence of such general principles is not possible14.
4 Nieto-Navia R. International Peremptory Norms (Jus cogens) and International Humanitarian Law. P. 10. URL: <http:// www.iccnow.org/documents/WritingColombiaEng. pdf> (Last visit on 7, February 2013).
5 Constitutional law / ed. V. Lazarev. Moscow, 1999. P. 90-92.
6 Baglay M. Constitutional law of the Russian Federation. M., 2008. P. 37.
7 Lushnikova M. On the unity (unification, harmonization) and differentiation of the sources of international labor law and international social security law // Bulletin of labor law and social security law. 2009. № 4. P. 51.
8 This opinion was expressed by J.-R. Dupuy, member of the International Law Commission to the UN, during the adoption of the 1969 Vienna Convention. See: Bianchi A. Human Rights and the magic ofjus cogens // The European Journal of International Law. Vol. 19. № 3. 2008. P. 492.
9 This position is expressed by the majority of researchers.
See, for example: O'Connel M. E. Jus cogens: International Law
Higher Ethical Norms // The Role of Ethics in International Law. D.E. Childress III (ed.). Cambridge Uni-versity Press, 2012. P. 98; Nieto-Navia R. Op. cit. P. 3-4, etc.
10 See, for example: O'Connel M.E. Op. cit. P. 83.
11 Kozik A., Tomashevsky K., Volk E. Internanational and national labor law (problems of interaction). Minsk, 2012. P. 75. Weil P. Towards Relative Normativity in International Law? // The American Journal of International Law. Vol. 77. № 3. 1983. P. 413-442. URL: <http://ru.scribdcom/doc/26213474/ To-wards-Relative-Normativity-in-International-Law> (last visit on February 7, 2013); Glennon M.J. Del'absurdite du droit impératif (jus cogens) // Revue Generale de Droit International Public. № 110, 2006. P. 529-536.
12 Baglay M. Idem. P. 37.
13 Tal L. Employment contract. Civilistic research. M., 2006. (reprint 1913). P. 415-416.
14 Tunkin G. Theory of international law. M., 2009. P. 132.
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Point of view15 of the impossibility of existence of jus cogens norms in modern international law is considered to be rather marginal. Nevertheless, some states do not recognize any legal obligations except of ones directly received by them as a result of act of ratification of international treaties16. Can it be stated that jus cogens norms exist in the ILL? With regard to the existence of jus cogens norms in the labor law and ILL different opinions are expressed.
First of all it is necessary to find out whether the International Labor Organization (ILO), the most authoritative organization in the world dealing with ILL, considers any of international norms as jus cogens norms. At first glance at adopted within the ILO 1998 Declaration on Fundamental Principles and Rights at Work17, it seems that the ILO refers to those four principles and rights entrenched in this Declaration18. However, it is not really so.
Art. 1 ILO Declaration 1998 states that freely joining the ILO, all Member States recognized the principles and rights enshrined in the ILO Charter and Philadelphia ILO Declaration19, and that these principles and rights have been expressed and developed in the form of specific rights and obligations in Conventions recognized as fundamental (basic) in the Organization itself and beyond it20. The ILO
15 Weil P. Towards Relative Normativity in International Law? // The American Journal of International Law. Vol. 77. № 3. 1983. P. 413-442. URL: <http://ru.scribdcom/doc/26213474/ Towards-Relative-Normativity-in-International-Law> (last visit on February 7, 2013); Glennon M.J. Del'absurdite du droit impératif (jus cogens) // Revue Generale de Droit International Public. № 110,2006. P. 529-536.
16 The Vienna Convention on the Law of international treaties of 1969 establishing the status of norms jus cogens, to date has been ratified by only 113 of the 192 states of the UN Member States (see: United nations Treaty Collection (UNTC Data — base) Status ofVi-enna Convention on the Law ofTreaties, 1969. URL: <http://treaties. un.org/Pages/ViewDetailsIII. aspx?&src=UNTSONLINE&mtdsg_ no=XXIII~l&chapter =23&Temp=mtdsg3&lang=en> (last visit on February 7, 2013).
17 Rossiyskaya Gazeta. 1998. December 16.
18 These include: a) freedom of association and effective recognition of the right to collective bargaining, and b) the elimination of all forms of forced or compulsory labor, c) the effective prohibition of child labor d) the elimination of discrimination in respect of employment and activity.
19 ILO Declaration 1944 «On the goals and objectives of the International Labour Organization» included in the text of the ILO Constitution as an application // Constitution of the International Labour Organization and Regulations of the International Labour Conference. Geneva, 1996. P. 5-23.
20 At the time of adoption of the Declaration in 1998 seven ILO
conventions were considered as fundamental: № 87 — Freedom
of Association and Protection of the Right for organization of 1948; № 98 — regarding the application ofprinciples ofthe right
for organization and the right to enter the contracts collectively
of 1949; № 100 — Equal payment for men and women for work of equal value of 1951; № 111 — Discrimination in respect of
employment and occupation, 1958; № 29 — Forced and obligatory labour, 1930; № 105 — Abolition of Forced Labour, 1957; № 138 — the Minimum Age of employment, 1973; After the
Declaration 1998 says that all Member States, even if they have not ratified the Conventions, have an obligation arising from the very fact of membership in the Organization, to respect, promote, update themselves and to realize, in good faith and in According to the Constitution, the principles concerning the fundamental rights. It should be kept in mind that the ILO does not recognize eight fundamental conventions as jus cogens norms but says about the use regardless of ratification of the principles entrenched there. From the text of the ILO Declaration of 1998, it follows that the fundamental principles must be observed regardless of the ratification, not because they are recognized by the ILO as jus cogens, but because the ILO Member States joined the ILO charter and accordingly the Declaration of Philadelphia of 1944, which allegedly contain the listed principles and rights.
However, the Charter of the Philadelphia Declaration of 1944 does not contain either a clear and unambiguous list of fundamental rights, as that contained in the Declaration of 1998. As basic principles Philadelphia Declaration proclaims that: a) labor is not a commodity, and b) freedom of speech and of association activity are essential factors for the sustained progress; c) poverty anywhere is recognized as a threat to the general welfare, and d) the fight with the need has to be carried on with unrelenting vigor within each nation, and by continuous and concerted international efforts in which the representatives of workers and employers, enjoying equal rights with government representatives, join with them in free discussion and democratic decision-making in order to promote the general welfare (Article 1). In addition, Art. II contains five statements of ILC (International Labor Conference) based on provisions of the Charter that universal and lasting peace can only be based on social justice. Among these statements, which are also can be attributed to the principles, there is a reference about the need of providing equal opportunities, which can be interpreted as the prohibition of discrimination in employment and occupation.
Besides, Art. III lists goals of ILO, which are carried out by helping the nations of the world to adopt the programs relevant to such goals. These objectives can hardly be attributed to the fundamental principles, they relate to the activities of the ILO itself and not to the duties of States, mentioned in the 1998 Declaration. In the preamble to the ILO Constitution, referring to the aims of creating the ILO, among other aims it indicated the ensuring equal payment for equal work (one of the elements of prohibition of the discrimination), the need to protect children and adolescents (can be interpret-
adoption in 1998 of the said Declaration the eighth convention was added: № 182 — Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 1999.
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ed as the prohibition of child labor) and to ensure the principle of freedom of association.
Thus, directly from the text of the Charter and the Declaration of Philadelphia only three of the four fundamental principles of the 1998 Declaration follow: freedom of association; the right to collective negotiations; the prohibition of child labor; the prohibition of discrimination in respect of employment and occupation. In some documents, the ILO can be found mentioning that the ILO Declaration «in some cases expresses the customary law»21. There is even an opinion22 that by virtue of its content 1998 Declaration should not be attributed neither to treaties nor to recommendation acts. One can hardly say that the Declaration of 1998 applies one of the classical sources of international law, although some experts express such an opinion23.
However, it is clear that the value of it for the ILL is huge.
Considered principles are not only articulated in the Declaration of 1998 in its current form, but the whole policy of the ILO for all the years after the adoption of the Declaration aims to develop the four principles in their current formulation. ILO (International Labor Office) Director General, according to the implementation mechanism enshrined in the Annex to the Declaration in 1998, annually provides to the ILC Global surround report on the implementation of one of the four fundamental principles and rights. Accordingly, the progress of each of the principles is closely studied by the ILC quadrennially.
Specific procedures are imposed on promoting ratification by the ILO Member States that have not ratified yet all eight fundamental conventions24. ILO Director-General J. Somavia in the 2008 Report to the ILC «Decent Work: expected strategic challenges» offered25 to consider one of the strategic objectives of the ILO the achievement of full ratification by the members of all eight fundamental conventions by 2015.
21 ILO. Office of the Legal Adviser. Manual for drafting ILO instruments. Geneva: ILO, 2006. P. 80.
22 Leary V. «Form Follows Function»: Formulations of International Labor Standards — Treaties, Codes, Soft Law, Trade Agreements // International Labor Standards: Globalization, Trade and Public Policy. R.J. Flanagan, WB. Gould IV (eds.), Stanford Law and Politics, 2003. P. 179.
23 Sukharev A. Effect of universally recognized principles and international law on the formation of the basic principles of legal regulation of labor in Russia // Theoretical problems of legal regulation of labor: international law and national Aspects / ed. S. Golovin. Yekaterinburg, 2009. P. 8.
24 ILO. Governing Body, Committee on Legal Issues and International Labour Standards (LILS). 304th Session, Geneva, March, 2009. Fifth item on the agenda. Ratification and promotion of fundamental ILO Conventions. P. 2-11.
25 International Labour Conference. 97th Session 2008. Report I (C). Decent Work. Some Strategic Challenges Ahead. Geneva: ILO, 2008. Para. 94. P. 23.
This allows us to conclude that legally ILO doesn't say that the given standards have become jus cogens, however the entire policy of the organization aims to make four fundamental principles and rights to be so. It is not surprising that in the legal science there is no unanimity on which specific provisions of the ILL should be attributed to the universally recognized norms of jus cogens.
It has been suggested that the very fundamental ILO conventions are compulsory for participating countries only in case of joining them, «... but a number of commitments defined by the conventions are imposed on the ILO members regardless of the ratification»26. It appears that this approach is not quite accurate. What kinds of commitments are in particular applied regardless of the ratification?
From the legal acts or opinions of the ILO it does not follow that the provisions contained in the fundamental conventions are somehow divided as related or unrelated to the norms of jus cogens.
Several important U.S. specialists in the labor law proceed from the fact that regardless of the ratification only one of the four fundamental principles of the ILO may be applied- freedom of association27. At the same time it is asserted that «widely, but may be not universally it is accepted that at least one set of rights should be included among jus cogens norms: prohibition of various forms of slavery, forced labor, involuntary work, human traffic etc»28.
Obviously, these two statements made in the same textbook, contradict to each other. Another representative of the USA, J. Belleys, on the contrary, acknowledges as undisputable three of the four fundamental principles except of the freedom of association, presence or absence of which depends on the type of country's political system29.
British scientists S. Deakin and J. Morris vaguely write that «the ILO Charter establishes a number of principles, such as freedom of association and the prohibition of discrimination, which are understood as direct sources of law»30. Moreover, the status of fundamental conventions is estimated by them quite unconventionally. Eight ILO conventions on their opinion are recognized fundamental in two senses: as applicable regardless the level of economic development of states and as necessary precondition components for the application of all other ILCs. The first of these statements correctly reflects the con-
26 Sukharev A. Idem. P. 8.
27 Atleson J., Compa L. et al. International labor law: cases and materials on workers' rights in the global economy, ThomsonWest, 2008. P. 66.
28 Ibid. P. 30.
29 Bellace J.R. The ILO Declaration of Fundamental Principles and Rights at Work // The International Journal of Comparative Labour Law and Industrial Relations. Vol. 17. Issue 3. 2001. P. 279.
30 Deakin S., Morris G. Labour Law. Fourth Edition. Hart Pub-
lishing, 2005. P. 106.
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tent of the 1998 Declaration, the second is rather controversial, it can hardly be directly deduced from the text of the ILO Declaration of 1998 or the Charter and the Philadelphia Declaration.
In a Spanish textbook on labor law there can be found references that four fundamental principles enshrined in the ILO Declaration of 1998 constitute the «essential core» of ILO standards — without any guidance regarding the status of these principles31.
Famous French scientists J. Pelissier, Supio A. and A. Jammes also quite vaguely talk about ILO fundamental norms (although the notion of jus cogens norms refers more to law than to an international organization adopting legal norms), among which it is mentioned «the prohibition of forced and child labor, freedom of association, in respect of which any special procedures, such as examination of complaints are seen, etc»32.
The representative of Belarus K. Tomashevsky believes that on the basis of all ILO declarations one can derive six fundamental principles in the work sphere: 1) the principle of social justice; 2) the principle of equal payment for work of equal value; 3) the principle of freedom of speech and freedom of association; 4) the principle of humanity (humanism) in the labor sphere; 5) the principle that labor is free and is not a commodity; 6) the principle of social partnership comprising equality and cooperation of the workers, employers and governments33.
The complex structure of the principles is proposed by Russian scientists M. Lushnikova and A. Lushnikov34. Fundamental principles of international legal regulation of labor they divide at the same time on two double criteria: private and public, natural legal and positivist. Accordingly, stands out: — First, a set of principles based on natural law and private law criteria : a) the principle of freedom of labor; b) the principle of freedom of association, c) the principle of equality of labor rights, d) the principle of fair working condi-
tions , and e) the principle of social partnership (social cooperation); — Secondly, a set of principles based on positivist and public legal criteria: a) the principle of non-compulsory labor, b) prohibition of discrimination; c) guarantee of labor rights to socially vulnerable population groups, and d) every possible protection of labor rights, including international legal ways.
As well as other classification principles this cannot be certain. In particular, it is not very clear what's the sense of combining two fundamentally different classification features; it is not clear what means the opposition of positive and natural law in such a case. One way or another all these principles are enshrined in the international acts and, therefore, are referred to the positive law. At the same time the application of jus cogens, as already mentioned, has a natural legal basis. This refers equally to both listed groups of principles, so the assignment of them to one group or another probably should be considered provisional.
E. Yershova, speaking of generally accepted norms of international labor law, doesn't list the principles themselves, but indicates the acts where they can be contained35. A list of these acts is very wide (e.g., it includes ILO Conventions without providing specific norms), so it is impossible to make a conclusion about the content of principles using this list.
I. Dmitrieva identifies generally recognized principles with the usual norms of International law36 and gives, as an example, ILO Recommendation of 1982 on Employment Termination at the Initiative of the employer (№ 166)37. I can not agree with this approach; international custom and the of jus cogens norm are two different types of sources of international law that may coincide only in some cases. International custom is a rule of conduct emerged in practice38, or according to the definition of Art. 38 of the Statute of International Court of Justice «proof of universal39 practice accepted as
31 Valverde A.M., Gutierrez F.R.-S., Murcia J.G. Derecho del Trabajo. 20.a ed. Madrid, 2011. P. 127.
32 Pelissier J., Supiot A., Jeammaud A. Droit du Travail. Paris, 2000. P. 74.
33 Tomashevsky K. Essays on labor law. History of philosophy, systems and sources ofproblems. Minsk, 2009. P. 230-231; Alias: Generally recognized principles of international law in the work sphere: listing and legal force // Journal of International Law and International relations. № 4. 2010. URL: <http://www.evolutio. info/index.php?option=com_content&task=view&id=1756&It emid=232> ( Last visit — February 7, 2013). Alias: Chapter 5. Sources of labor law: general provisions and national sources // The course of labor law. General part. Minsk, 2012. P. 184. This same list is shown in the work, co-authored with A. Kozik, K. Tomashevsky and E. Volk. See: Kozik A., Tomashevsky K., Volk E. Idem. P. 77-78.
34 Lushnikov A., M. Lushnikova. Course of the employment law: in 2 Vol. Vol. 1. The essence of labor law and history of its development. Labor rights in the human rights system. General part. M., 2009. P. 513-514.
35 Ershova E. Employment law in Russia. M., 2007. P. 31.
36 Dmitrieva I.K. Principles of the Russian labor law. M., 2004. P. 117-118.
37 Conventions and Recommendations adopted by the International Labour Conference. 1957-1990. Vol. II. Geneva, 1991. P. 1991-1996.
38 Tolstykh V. Course of international law. M., 2009. P. 165, Kaczorowska A. Public International Law. 4th ed. London and New York, 2010. P. 35, etc.
39 Russian translation of the article of the Statute is not quite accurate. The text in the authentic (English) language speaks not of the «universal» practice (in English in this case the word «universal» should be used), but of the «common» practice (general practice), i.e. contrasting with a specific or private legal norm. See English text of the Statute on the site of the International Court: International Court Of Justice. Statute of the International Court Of Justice: URL:<http://www.icj-ij.org/documents/ index.php?p1 =4&p2=2&p3=0>(last visit — February 7, 2013).
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a legal norm». In international law custom is commonly understood either as a tacit state consent to the use of one or another norm40 or as a reflection of the development of trends concerning international relations41. It is important that practices can be both universal and particular, applicable even in bilateral international relations. This position is reflected in the decisions of the UN International Court42. For applicability of the custom as a source of international law, it is usually necessary opinio juris, i.e. opinion of the state on the complaisance of the corresponding custom. Exceptions from this rule are just customs relating to jus cogens.
Recommendation number 166 explicitly refers to recognized standards adopted by the «international community as a whole» Solving the question of determining the conventions status43 and ILO recommendations, the Working Group on Policy regarding the Revision of Standards, of the ILO Administrative Council44 was not able to assign a status only to the Convention number 158 and eponymous Recommendation number 166 related to it. It is connected with the lack of consensus in the relationship between representatives of employees and employers within the ILO, and between the ILO member states as well45.
Finally, the U.S. government, providing Commercial preferences46 in accessing its market, requires from states to comply four «internationally recognized workers' rights» that partially overlap
40 Anzilotti D. Course of International Law. M., 1961. P. 79; Tunkin G. Idem. P. 142, 148; Lukashuk I. International law. General part. M., 2008. P. 103.
41 Verdross A. International law. M., 1959. P. 154-155.
42 Tolstykh V. Idem. P. 168.
43 About the ILO classification depending on the status see Gusov K., Liutov N. International labor law. M., 2012. P. 153-156.
44 ILO. Governing Body. Working Party on Policy regarding the Revision of Standards. Follow-up to the recommendations of the Working Party. ILO Document GB.283/LILS/ WP/ PRS/1/2. ILO, Geneva, 2002.
45 The possibility to include more flexible wording to the Convention Number 158 is currently being discussed within the ILO Governing Council to allow partially ratify this Convention. For more details on the discussion see the record of the meeting of the Administrative Board at its 304th Session in March 2009: ILO. Governing Body, 304th Session. Committee on Legal Issues and International Labour Standards (LILS), Geneva, March, 2009. Improvements in the standards-related activities of the ILO Implications of the Social Justice Declaration on the Standards Strategy and update on the implementation of the interim plan of action. ILO Doc. № GB.304/LILS/4. Geneva, March, 2009; ILO. Governing Body. Working Party on Policy regarding the Revision of Standards. Deferred examination of Conventions (b) Termination of Employment Convention, 1982 (№ 158) (Short survey). ILO Doc. № GB.280/LILS/WP/PRS/2/2. URL: <http://www.ilo.org/public/english/standards/relm/gb/ docs/gb280/pdf/prs-2-2.pdf>(Last visit — February, 7 2013).
46 Lyutov N. Trade preferences and international labor stan-
dards: the experience of the European Union and the United
States/ / Journal of Foreign Legislation and Comparative Juris-
prudence. № 2. (№ 13). 2008. P. 148-152.
with fundamental rights and principles at work, but do not include the prohibition of discrimination in employment and occupation and, conversely, contain «acceptable working conditions in the minimum wage, working hours and safety», not mentioned in the ILO Declaration of 1998. This interpretation is made mostly for pragmatic reasons47, that's why the United States are criticized by many, including American scientists48. Even without considering the political motivation in the case of the U.S. interpreting the contents of the principles, it is obvious that the way of listing them in the formulation of the 1998 Declaration can't be recognized indisputable.
We have to admit that the concept of jus cogens norms in the ILL, despite its importance to the labor law should be included to the kind of legal concepts that S. Golovina refers49 to the uncertain category, i.e. those which can not be determined uniquely, since their meaning and sense may depend on the specific situation and other factors. But if this concept is completely subjective, there is a risk of total loss of its legal meaning. To find this meaning it is necessary to clarify what is meant under the rules of jus cogens in the international law.
Long before the adoption of the 1969 Vienna Convention, in 1937 the Austrian classic of international Law A. von Verdross wrote about «banned international treaties» that contradict to the norms of jus cogens, and before him the Russian classic of international law F. Martens had appeared with the similar allegations, recalling I. Bluntschli, the German international affairs specialist. But the really serious meaning of these norms acquired during the preparation for the adoption of the 1969 Vienna Convention within the UN Commission on International law. Then the main initiators of entrenching of the doctrine of jus cogens in the 1969 Vienna Convention were representatives of the Soviet bloc50. The idea the socialist countries was to get engaged actively in the process of international lawmaking within the
47 This approach allows us to maintain normal trade relations with the Middle East oil exporters, criticized by the ILO and organizations protecting human rights and standing against the discrimination based on sex, and with Israel having similar problems due to religious discrimination. The provision about «acceptable working conditions» allows sifting subjectively the states that are not loyal enough to the U.S. referring to the human rights standards.
48 Compa L., Vogt J.S. Labor rights in generalized system of preferences: A 20 year review // Comparative Labor Law and Policy Journal. Vol. 22. 2001. P. 236; Alston P. Labor Rights Provisions in US Trade Law: «Aggressive Unilateralism?» // Human Rights Quarterly. Vol. 15, 1, 1993. P. 1-35; Hepple B. Labour Laws and Global Trade, Oxford and Portland, Oregon, 2005. P. 89-105.
49 Russian Labor Law / ed. S. Golovina. M., 2008. P. 74.
50 Aleksidze L. The problem of jus cogens in contemporary international law // Soviet Yearbook of International law, 1969. M., 1970. P. 127-145; Alias: Some problems in the theory of international law. Imperative norms. Jus cogens. Tbilisi, 1982; Tunkin G. Idem. P. 130-142.
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N.L. LYUTOV
LEX RUSSICA
concept of peaceful coexistence of socialist and capitalist countries. From its geopolitical viewpoint the USSR, being then at the peak of its power, felt itself influential enough on the world stage for promoting its own ideology, including unformalized principles. Representatives of the capitalist bloc sought to keep the initiative, pointing to the fact that it represents the attempt to prevent the application of general international obligations51. Nevertheless 1969 Vienna Convention cemented the victory of the Soviet initiative. After the end of the Cold War and confrontation of two political blocs associated with it, the approach to jus cogens norms changed. Now they are considered primarily through the prism of human rights52 as an opportunity to impose obligations in respect of human rights on a state even if it hasn't taken them voluntarily. In figurative expression of the American specialist P. Stephen, jus cogens norms have evolved from the shield that protects the USSR against unwanted direction of customary rules of international law, a sword directed against certain states53. It's obvious that such weapons should be treated with maximum caution, given the fact that in modern international relations, human rights often only used as a pretext of some countries to achieve their pragmatic interests.
In any case, the international law experts refer very limited set of rights to the norms of jus cogens. Mostly, when it comes to the norms of jus cogens, it is said about banning the most odious crimes: genocide, torture, drug trafficking and slavery54. In 1966, the Commission on International Law among international treaties that contravene the norms of jus cogens cited, as examples, other things: agreements, aimed at such activities as the slave trade, piracy, genocide and etc55.
Therefore regional principles as well as the principles applicable in the countries with a certain social systems, and similar principles can not be considered jus cogens56. The idea of the existence of not definitive
51 Lipson L. Peaceful Coexistence // Law and Contemporary Problems. Vol. 29, 1964. P. 871-881.
52 Simma B., Alston Ph. The Sources of Human Rights Law: Custom, Jus cogens and General Principles // Australian Yearbook of International Law. Vol. 17. 1992. P. 82-108.
53 Stephan P.B. The Political Economy of Jus cogens // Public Law and Legal Theory Research Paper Series № 201114. University of Virginia School of Law, March 2011. P. 32. Social Science Research Network Electronic Paper Collection: URL: <http:// ssrn.com/abstract=1780472> (Last visit — 7 February 2013).
54 Aleksidze L. The problem of jus cogens in contemporary international law. P. 144-145; Tunkin G. Idem. P. 141-142; Bianchi A. Idem. P. 495; Nieto-Navia R. Idem. P. 27, etc.
55 International Law Commission. Yearbook. Vol. II, 1966. P. 248; International Law Commission. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001. United Nations, 2008. P. 112. URL: <http://untreaty.un.org/ ilc/texts/instruments/english/commentaries/9_6_2001 .pdf> (Last visit — 7 February 2013).
56 Course of International Law: in 7 Vol. Vol. 1. Concept, object and the system of international law. M., 1989. P. 268-269.
prescriptions as jus cogens norms addressed to states, but legal opportunities containing legal entitlements of individuals and similar subjects such as variety of industry guidelines including ILL principles, is also criticized by international law scholars57. E. Usenko believed that in the formed branches of international law there can be only one basic (industrial) principle58. V. Tolstykh indicates that concerning the prohibition of aggression, genocide, apartheid, discrimination, torture, slave trade, piracy, as well as the right of nations to self-determination there is an international consensus about giving them the status of jus cogens, while the impera-tivity of norms of Human Rights remains debating59.
The existence of serious doctrinal differences in recognition of one or another principle as a norm of jus cogens means that the principle doesn't have a necessary feature — universal recognition. In this regard, it is appropriate to talk about already held norms of jus cogens, in respect of which there are decisions of the authoritative international court (for example, the International Court of Justice) explicitly mentioning them, and those that only have the potential to be recognized as such when there are proofs of an international consensus in respect of them, expressed as decisions of international courts. In this case it is important that only international courts, and not some or other courts have the jurisdiction in recognition of a norm as jus cogens.
This thesis is well illustrated by the so-called case Ferrini et al v. Germany60. In 2004, L. Ferrini, as well as a number of other persons and their relatives, deported against the will during the Second World War for forced labor from Italy to Germany, won a lawsuit in the Court of Cassation of Italy. Italian court held that sovereign immunity of Germany does not extend on the forced labor situations, ban of which has the status of jus cogens. Later, similar solutions have become taken in Italy on other similar lawsuits61. Germany filed a lawsuit in the International Court of Justice, which in the UN ruled in its favor62, indicating that such kind of actions can
57 Chebotarev I. The notion of special principles of International Law // International relations and law: a look into the XXI century. Materials of the Conference in honor of Professor L. Galenski / ed. SV Bakhina. St. Petersburg, 2009. P. 256-258. A similar approach can be found in foreign legal literature on international law, for example, see: O'Connel M.E. Op. cit. P. 80.
58 Usenko E. On the system of international law / / Soviet State and Law. 1988. № 4. P. 117-126.
59 Tolstykh V. Idem. P. 117-121.
60 Ferrini v. Federal Republic of Germany. Italian Court of Cassation. March 11, 2004 // American Journal of International Law. Vol. 99. № 1. 2005. P. 242-248.
61 Focarelli C. Federal Republic ofGermanyv. Giovanni Mantel-li and Others // American Journal of International. Law. Vol. 103. № 1. 2009. P. 122-131; Knuchel S. State Immunity and the Promise of Jus cogens // Northwestern Journal of International Human Rights. Vol. 9. № 2. 2011. P. 155.
62 International Court of Justice. Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening). Judgment
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not affect the sovereign State immunity. The Court refrained from evaluating the actions of Germany in cases being considered as a violation of norms of jus cogens, indicating that the immunity in this case «can't be affected, even if the assumption of the Italian courts about the violation of jus cogens norms is true»63.
In 1970, in the resonant case «Barcelona Traction» the ICJ indicated64 that such basic human rights as protection from slavery and racial discrimination should be considered as obligations erga omnes, i.e. imposed on the state towards the international community as a whole65. Specialists in international law consider it «indirect reference to the norms of jus cogens»66. But the International Court of Justice strongly avoids the direct recognition of the existence of jus cogens norms in specific cases. An important regional international judicial body, the Inter-American Court of Human Rights,
in 2003 expressly stated that the prohibition of discrimination (concerning working migrants without documents) refers to the norms of jus cogens67.
As an outcome of the analysis we can say that in international law the relation to the norms of juscogens is significantly more restrained than in the works of specialists in labor law. Carefulness of international lawyers seems justified given the fact that jus cogens norms affect an essential element of the global law and order — state sovereignty. Held legitimacy of the jus cogens norms in ILL can be stated with respect of the prohibition of discrimination and the prohibition of slavery as extreme forms of forced labor. For other, albeit important Human Rights in the labor sphere it is correctly to talk only about the possibility of their becoming norms of jus cogens. The possibility of a legal norm to be updated as a new jus cogens norm is expressly provided by the 1969 Vienna Convention (Article 64).
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Перевод И.А. Мартыненко,
преп. кафедры английского языка № 2 Университета имени О.Е. Кутафина (МГЮА)
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