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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 5: The identification of jus cogens norms

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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