Jus Cogens as a Social Construct Without Pedigree

46 Netherlands Yearbook of International Law (2015) 85-114

Amsterdam Law School Research Paper No. 2016-59

Amsterdam Center for International Law No. 2016-19

32 Pages Posted: 20 Oct 2016

See all articles by Jean d'Aspremont

Jean d'Aspremont

Sciences Po Law School; University of Manchester - School of Law

Date Written: October 19, 2016

Abstract

This chapter revisits the mainstream foundational nonchalance witnessed in the international legal scholarship relating to jus cogens whereby the practice of courts and tribunals often suffice, for most international lawyers, to compensate a disinterest in the pedigree of jus cogens. The purpose of this chapter is accordingly to depict how international lawyers, by virtue of a series of avoidance-techniques, leave one of their most fundamental doctrines ungrounded without feeling any need to anchor it more firmly in the system of thoughts of international law. Whether such a pedigreelessness actually constitutes a sign of maturity of international legal argumentation, or a theoretical ailment, is not a question that is discussed here. The description of the argumentative constructions to which international lawyers resort in relation to jus cogens to avoid the question of its pedigree is sufficient to illustrate the light treatment generally reserved to the making of the main doctrines of international law and their mystical origin.

Keywords: International law, legal theory, international obligation, autonomy, source, normativity, legitimacy, authority, tradition, international law as a discipline

JEL Classification: K33

Suggested Citation

d'Aspremont, Jean, Jus Cogens as a Social Construct Without Pedigree (October 19, 2016). 46 Netherlands Yearbook of International Law (2015) 85-114, Amsterdam Law School Research Paper No. 2016-59, Amsterdam Center for International Law No. 2016-19, Available at SSRN: https://ssrn.com/abstract=2855232

Jean D'Aspremont (Contact Author)

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

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