Chapter 4: The role of state consent in the creation and modification of jus cogens norms
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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.