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Understanding Jus Cogens in International Law and International Legal Discourse

Ulf Linderfalk

Whilst the concept of jus cogens has grown increasingly more important in public international law, lawyers remain hugely divided both over what precisely confers a jus cogens status on a norm, and what this conferral implies in terms of legal consequences. In this ground-breaking book, Ulf Linderfalk clearly and succinctly explores the reasons for this divide in order to facilitate more rational and productive future discourse.
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Chapter 3: The source of jus cogens obligations and no-competences

Ulf Linderfalk

Extract

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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