The Political Economy of Jus Cogens

45 Pages Posted: 7 Mar 2011 Last revised: 24 Mar 2011

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Paul B. Stephan

University of Virginia School of Law

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Date Written: March 7, 2011

Abstract

This paper, prepared for a conference hosted by Vanderbilt Law School on foreign sovereign immunity at home and abroad, begins with the dispute now before the International Court of Justice, Jurisdictional Immunities of the States (Germany v. Italy). Italy’s courts claim that the normal rule of foreign sovereign immunity that it would apply to a civil suit against a foreign state does not apply if the plaintiff’s claim alleges violations of jus cogens norms of international law. The paper uses this argument as a lens into the history and meaning of the jus cogens concept in international law.

The paper demonstrates that the vision of jus cogens one embraces depends on background assumptions about the present and future of the international system. A robust conception of jus cogens assumes both (1) that independent judges and tribunals, informed by the views of non-state actors, can identify core international obligations and manage their tradeoffs with other values pursued by the international legal system, and (2) that the actions of independent judges and tribunals, informed by non-state actors, will influence state behavior. Doubts about the abilities of judges and tribunals, or fear about the rise of powerful and authoritarian actors in the international system, will lead one to assign a much narrower role to jus cogens.

Keywords: international law, sovereign immunity, jus cogens

Suggested Citation

Stephan, Paul B., The Political Economy of Jus Cogens (March 7, 2011). Virginia Public Law and Legal Theory Research Paper No. 2011-14. Available at SSRN: https://ssrn.com/abstract=1780472

Paul B. Stephan (Contact Author)

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