Entrenching International Values Through Positive Law: The (Limited) Effect of Peremptory Norms

Heike Krieger and Andrea Liese (eds.), A Metamorphosis of International Law? – Tracing Value Changes in the International Legal Order From the Perspectives of Legal and Political Science, Forthcoming

KFG Working Paper Series, No. 25, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”

19 Pages Posted: 25 Jan 2019

See all articles by Erika De Wet

Erika De Wet

Faculty of Law, University of Pretoria

Date Written: January 2019

Abstract

Underpinning a legal system with certain values and helping to resolve norm conflicts is in domestic legal systems usually achieved through hierarchical superiority of certain norms of a constitutional nature. The present paper examines the question whether jus cogens can discharge this function within the traditionally horizontal and decentralized international legal order. In so doing, it commences with an overview of the historical origins of peremptory norms in legal scholarship, followed by its endorsement by positive law and courts and tribunals. This analysis illustrates that there are lingering uncertainties pertaining to the process of identification of peremptory norms. Even so, the concept has been invoked in State executive practice (although infrequently) and has been endorsed by various courts. However, such invocation thus far has had a limited impact from a legal perspective. It was mainly confined to a strengthened moral appeal and did in particular not facilitate the resolution of norm conflicts. The contribution further suggests that this limited impact results from the fact that the content of peremptory obligations is either very narrow or very vague. This, in turn, implies a lack of consensus amongst States regarding the content (scope) of jus cogens, including the values underlying these norms. As a result, it is questionable whether the construct of jus cogens is able to provide meaningful legal protection against the erosion of legal norms. It is too rudimentary in character to entrench and stabilize core human rights values as the moral foundation of the international legal order.

Suggested Citation

De Wet, Erika, Entrenching International Values Through Positive Law: The (Limited) Effect of Peremptory Norms (January 2019). Heike Krieger and Andrea Liese (eds.), A Metamorphosis of International Law? – Tracing Value Changes in the International Legal Order From the Perspectives of Legal and Political Science, Forthcoming; KFG Working Paper Series, No. 25, Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?”. Available at SSRN: https://ssrn.com/abstract=3315653

Erika De Wet (Contact Author)

Faculty of Law, University of Pretoria ( email )

Physical Address Economic and Management Sciences
Pretoria, Gauteng 0002
South Africa

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