Deriving Peremptory Norms from Sovereignty
American Society of International Law Proceedings, Vol. 103, 2009
12 Pages Posted: 5 Apr 2009 Last revised: 22 Nov 2015
Date Written: March 30, 2009
In international law, the term "jus cogens" refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. Although the jus cogens concept has achieved widespread acceptance, international legal theory has yet to furnish a satisfying account of jus cogens's legal basis. We argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant's discussion of the innate right of children to their parents' care. Drawing on Kant's account, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to their power. An immanent feature of this state-subject fiduciary relationship is that the state must comply with jus cogens. The fiduciary theory clarifies jus cogens's content by generating discrete criteria for identifying peremptory norms.
Keywords: jus cogens, peremptory norms, fiduciary, rule of law, international law, human rights
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