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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 8: Jus cogens and the individuation of norms

Ulf Linderfalk

Extract

This chapter inquires into the respective ideas of legal positivism and legal idealism regarding the criteria properly to be used for the individuation of norms. It finds that, according to legal positivism, individual norms relate to other individual norms as separate units in a logical system. The criteria that enable international lawyers to separate norms from one another are naturally those that help to understand them as precisely such units. According to legal idealism, individual jus cogens norms relate to other individual norms as means for the realisation of an assumed legal ideal. The criteria that enable international lawyers to separate individual jus cogens norms from other norms of international law are those that help to understand them as precisely such means. Chapter 8 spends considerable time outlining the practical implications of these different positions for the performance of secondary jus cogens obligations and no-competences.

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