Jus Cogens: International Law’s Higher Ethical Norms

THE ROLE OF ETHICS IN INTERNATIONAL LAW, Donald Earl Childress, III, ed., Cambridge University Press, 2012

Notre Dame Legal Studies Paper No. 11-19

15 Pages Posted: 20 Apr 2011 Last revised: 24 Feb 2012

Mary Ellen O'Connell

Notre Dame Law School

Date Written: April 19, 2011

Abstract

Most international lawyers recognize that the international legal system includes a category of higher norms known as jus cogens or peremptory norms. Most international lawyers also agree that jus cogens norms are superior to and may void conflicting laws. Beyond these points, however, there is little agreement. This Chapter presents evidence and arguments toward building consensus in the field of international law respecting additional aspects of jus cogens. In particular, it argues for the following propositions:

Jus cogens norms are moral or ethical norms in nature. Other imperative norms such as those critical to the operation of the international legal system, are general principles of law, not jus cogens.

Jus cogens norms invalidate directly conflicting international or national laws. Jus cogens norms do not have the effect of striking down otherwise valid law or of imposing affirmative duties.

Only natural law theory contains explanations of jus cogens norms; positivism is inadequate to explain the existence and operation of jus cogens.

Much natural law theorizing reflects a scholar or judge’s own subjective views. This problematic aspect often seen in theorizing about jus cogens may be addressed through combining natural law theory with an adjunct legal theory known as legal process.

Keywords: jus cogens, peremptory norms, natural law, legal positivism, legal process

JEL Classification: K10, K33, K40,

Suggested Citation

O'Connell, Mary Ellen, Jus Cogens: International Law’s Higher Ethical Norms (April 19, 2011). THE ROLE OF ETHICS IN INTERNATIONAL LAW, Donald Earl Childress, III, ed., Cambridge University Press, 2012 ; Notre Dame Legal Studies Paper No. 11-19. Available at SSRN: https://ssrn.com/abstract=1815155

Mary Ellen O'Connell (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-7953 (Phone)

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