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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 4: The role of state consent in the creation and modification of jus cogens norms

Ulf Linderfalk

Extract

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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