TY - CHAP
T1 - Audience and Authority—The Merit of the Doctrine of Jus Cogens
AU - Orakhelashvili, Alexander
PY - 2020/8/24
Y1 - 2020/8/24
N2 - 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.
AB - 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.
KW - Jus cogens
KW - act of state
KW - international human rights and humanitarian law
KW - international law before domestic courts
KW - objective treaty obligations
KW - sources of international law
KW - state immunity
UR - https://www.springer.com/gp/book/9789462651135?utm_campaign=bookpage_about_buyonpublisherssite&utm_medium=referral&utm_source=springerlink
U2 - 10.1007/978-94-6265-114-2_5
DO - 10.1007/978-94-6265-114-2_5
M3 - Chapter (peer-reviewed)
SN - 978-94-6265-113-5
T3 - Netherlands Yearbook of International Law
SP - 115
EP - 145
BT - Netherlands Yearbook of International Law 2015
A2 - den Heijer, Maarten
A2 - van der Wilt, Harmen
PB - T.M.C. Asser Press
ER -