What's so Special About Jus Cogens? On the Disinction between the Ordinary and the Peremptory International Law
Posted: 11 Dec 2010
Date Written: December 8, 2010
International lawyers distinguish between jus cogens and ordinary international law. This language raises questions about the distinguishing quality of jus cogens norms. What, exactly, is it about jus cogens that distinguishes it from ordinary international law? In attempting to answer this question, international lawyers usually resort to the “the Legal-Consequences-as-Criterion Theory”: while ordinary international law can be rebutted or modified in accordance with the duly expressed will of states, jus cogens norms will permit no derogation and will allow modification only by the creation of a new norm having the same character. Due to the matter explained, this Theory has a very strong influence on the understanding of the international legal system; this is why the present essay submits it to analysis and assessment. Part I inquires into the relationship between the Legal-Consequences-as-Criterion Theory and the general definition of jus cogens reflected in Article 53 of the 1969 Vienna Convention on the Law of Treaties. As argued, Article 53 is entirely reliant upon the validity of the Legal-Consequences-as-Criterion Theory. Part II inquires into the soundness of this same Theory. As argued, the Theory does not provide good reasons for the distinction between jus cogens and ordinary international law.
Keywords: International law, jus cogens, peremptory international law, legal concepts, 1969 Vienna Convention on the Law of Treaties
JEL Classification: K33
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