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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 7: Jus cogens and the concept of a normative conflict

Ulf Linderfalk

Extract

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the proper use of the concept of a normative conflict in the particular context of secondary jus cogens obligations and no-competences. It finds that depending on which of these two schools of thought a lawyer endorses, he or she will define this concept differently. According to legal positivists, a jus cogens rule is in conflict with a rule of ordinary international law when, depending on which of two rules is applied, the conduct of a state is either consistent or inconsistent with international law. According to legal idealists, a jus cogens rule is in conflict with a rule of ordinary international law when the effect of the application of the latter would be contrary to the teleological principle underlying the former, or inconsistent with a commitment to the ideal that this rule is assumed to serve.

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