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Ulf Linderfalk

Since the adoption of the 1969 Vienna Convention on the Law of Treaties, a great number of international scholars and lawyers have spent considerable time trying to clarify the concept of jus cogens. They have not been very successful. As the chapter helps to reveal, there is still a huge divide between different international lawyers’ respective conceptions of jus cogens.

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Ulf Linderfalk

This chapter outlines the respective positions of legal positivism and legal idealism with regard to a series of fundamental questions. These questions include: What counts as law? What is the relationship between law and value? What does it mean to say that a legal norm is valid? What are the elements of law and how is law being structured? What is the significance of law for the pursuit of social order?

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Ulf Linderfalk

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the source of jus cogens obligations and no-competences. For legal positivism, primary and secondary jus cogens obligations and no-competences derive from two different categories of norms, referred to throughout this book as first and second order norms of the jus cogens regime, respectively. Bluntly put, the jus cogens status of a first order norm (N) derives from the existence of the second order norms, and from the application of these norms to N. The second order norms are not themselves jus cogens but are ordinary customary international law. Legal idealism, for its part, ties the existence of jus cogens obligations and no-competences to the commitment of participants in international legal discourse to some or other ideal, such as legality, justice, or the accommodation of the basic needs of human beings. This commitment manifests itself in the mere existence of international legal discourse, which consequently, for legal idealism, is the source of the jus cogens status of obligations and no-competences.

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Ulf Linderfalk

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the role of state consent in the creation and modification of jus cogens norms. According to legal positivism, two different processes are involved depending on what particular modification is being referred to. When modification entails the abrogation of the jus cogens status of a norm, it is effected by the modification of the second order norms of the jus cogens regime. When modification entails a change of the scope of application of a first order norm of the jus cogens regime, it is effected by a modification of the second order norms of the regime followed by a modification of the first order norm itself. In both processes, the role of state consent is precisely the same as in the ordinary processes for the creation and modification of positive law. According to legal idealism, a modification of a jus cogens norm is effected by a change in the instrumental relationship between an ideal and the several secondary jus cogens obligations and no-competences tied to the classification of a norm as jus cogens. These processes are not dependent on state consent, in any normal sense of that word.

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Ulf Linderfalk

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the proper way to justify a jus cogens proposition, that is to say, a proposition classifying some norm as jus cogens. According to legal positivism, a proposition classifying a norm (N) as jus cogens will have to be justified by showing two things: first, that states generally do not derogate from N, and that they generally do not modify N by means other than the creation of new jus cogens norms; second, that states widely subscribe to the opinion that there is in customary international law an authoritative set of norms by virtue of which no derogations from N are permitted, and modifications of N can be accomplished only by the creation of new jus cogens norms. For legal idealism, a jus cogens proposition excites questions about the efficacy of a norm (N). What has to be shown is that the legal consequences ensuing from having categorised N as jus cogens are necessary to realise some presupposed legal ideal. As the chapter concludes, if a lawyer makes an attempt to provide justification of a jus cogens proposition along these lines, he or she will be facing some very challenging questions. This is so whether the lawyer takes the position of a legal positivist or of a legal idealist, but for different reasons.

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Ulf Linderfalk

This chapter inquires into the possibility that taking a position as either a legal positivist or a legal idealist may help to delimit the extension of the jus cogens concept. It finds that, according to legal positivism, jus cogens norms do not necessarily apply to all subjects of international law, and neither do they necessarily establish obligations erga omnes. Legal idealists, on the other hand, are divided over these precise issues. Whether jus cogens norms necessarily apply to all subjects of law, and whether they necessarily establish obligations erga omnes, will inevitably depend on the nature of the particular ideal that a legal idealist presupposes. With respect to the suggestion that legal principles may classify as jus cogens, the chapter finds that both legal positivism and legal idealism will renounce it, but for partly different reasons.

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Ulf Linderfalk

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the proper use of the concept of a normative conflict in the particular context of secondary jus cogens obligations and no-competences. It finds that depending on which of these two schools of thought a lawyer endorses, he or she will define this concept differently. According to legal positivists, a jus cogens rule is in conflict with a rule of ordinary international law when, depending on which of two rules is applied, the conduct of a state is either consistent or inconsistent with international law. According to legal idealists, a jus cogens rule is in conflict with a rule of ordinary international law when the effect of the application of the latter would be contrary to the teleological principle underlying the former, or inconsistent with a commitment to the ideal that this rule is assumed to serve.

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Ulf Linderfalk

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the criteria properly to be used for the individuation of norms. It finds that, according to legal positivism, individual norms relate to other individual norms as separate units in a logical system. The criteria that enable international lawyers to separate norms from one another are naturally those that help to understand them as precisely such units. According to legal idealism, individual jus cogens norms relate to other individual norms as means for the realisation of an assumed legal ideal. The criteria that enable international lawyers to separate individual jus cogens norms from other norms of international law are those that help to understand them as precisely such means. Chapter 8 spends considerable time outlining the practical implications of these different positions for the performance of secondary jus cogens obligations and no-competences.

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Ulf Linderfalk

This chapter summarises the findings of the previous chapters and discusses their significance for future international legal discourses. As the book concludes, in international jus cogens discourse, a fruitful exchange of opinions is inhibited by the general failure of discussants to fully acknowledge the relationship between submitted propositions and a legal positivist’s or legal idealist’s frame of mind. The book has significance inasmuch as it will help participants in international legal discourse to engage more rationally with the divide between different international lawyers’ respective conceptions of jus cogens.

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Ulf Linderfalk