Custom, Jus Cogens, and Human Rights
Custom’s Future: International Law in a Changing World, Curtis A. Bradley ed., Cambridge University Press, Forthcoming
19 Pages Posted: 23 Mar 2015
Date Written: March 20, 2015
The paper presents a moral judgment-based account of customary international law (MJA), according to which opinio juris embodies a moral judgment, and moral judgment is involved in the interpretative process of determining whether a customary norm has come into being. The MJA is shown to fit with the service conception of the legitimacy of international law, as opposed to a consent-based view. The second half of the paper considers the implications of the MJA for human rights as both customary norms and as norms of jus cogens.
Keywords: international law, custom, customary international law, consent, legitimacy, human rights, jus cogens
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