Saul: Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges

Matthew Saul (Univ. of Oslo - Law) has posted Identifying Jus Cogens Norms: The Interaction of Scholars and International Judges (Asian Journal of International Law, forthcoming). Here's the abstract:

In this paper I address the justifications and methods adopted by scholars and international judges for the identification of jus cogens norms. More specifically, I examine how the approaches taken by these two subsidiary sources of international law relate. In so doing, I seek to highlight and develop a clearer understanding of why, in spite of considerable scholarly and judicial attention, more progress on the doctrine of jus cogens identification has not been made. The analysis covers assessment of the practice of interaction, but also its underpinnings, which include the implications of jus cogens identification for the legitimacy of international courts. I argue that scholars have focused on justificatory theory at the expense of methodological considerations and that this has limited the scope for the development of a useful discourse with international judicial bodies on matters of jus cogens identification.