Audience and Authority—The Merit of the Doctrine of Jus Cogens

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Abstract

It seems that, several decades after the 1969 Vienna Convention approved the concept of jus cogens and detailed its particular implications as part of positive international law, the debate as to the feasibility of this concept should be over. However, the current debate, while maintaining the adherence to the overall concept of jus cogens, questions its particular implications, either because those who take this view ask for extra evidence, or they are not confident that they can sell to the relevant legal audiences the view that the peremptory nature of the rule relates not to its binding force but to its normative implications. This contribution addresses the merit of this debate, and highlights the merit of jus cogens in relation to objective treaty obligations, sources of international law and the law of State immunity. Examining all the available evidence, this contribution concludes that the adherence to the ‘narrow’ version of the jus cogens doctrine, notably in cases relating to State immunity, represents not an accurate statement of the legal position, but political and ideological choices made and maintained by national and international courts.

Details

Original languageEnglish
Title of host publicationNetherlands Yearbook of International Law 2015
EditorsMaarten den Heijer, Harmen van der Wilt
Publication statusPublished - 24 Aug 2020

Publication series

NameNetherlands Yearbook of International Law
PublisherSpringer Nature
Volume46
ISSN (Print)0167-6768

Keywords

  • Jus cogens, objective treaty obligations, sources of international law, international human rights and humanitarian law, state immunity, act of state, international law before domestic courts