The Political Economy of Jus Cogens
This paper was submitted to a conference on the political economy of international law organized by University "La Sapienza." The proceedings from this conference will be edited by Professor Alberta Fabbricotti and published by Edward Elgar in 2016, Forthcoming.
29 Pages Posted: 29 Jun 2015 Last revised: 1 Sep 2015
Date Written: March 29, 2015
This paper uses the history and function of the jus cogens concept in international law to demonstrate that its meaning and implication have varied in respond to particular sets of interests of significant international actors. The history reveals three incarnations of the concept: A claim about limits on the ability of sovereign states to enter into treaties that negate the essence of state sovereignty; a claim about limits on the formation of international law based on the fundamental interests of the states engaged in Cold War competition; and a claim about the existence of strong protection of human interests that exists independent of state consent. The principal argument of the paper is that the present, human-rights oriented conception of jus cogens is itself contingent and a reflection of the interests of persons who participate in the international legal system, especially non-state actors. The paper speculates about changes in the configuration of state interests that might produce new adaptions of the jus cogens concept, including doctrines and applications that would be fundamentally at odds with the current conception.
Keywords: Jus cogens, international law
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