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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 6: The scope of jus cogens: possible delimitations of the concept

Ulf Linderfalk

Extract

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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