Case & Mégret: The Colour of Jus Cogens

Sarah Riley Case (McGill Univ. - Law) & Frédéric Mégret (McGill Univ. - Law) have posted The Colour of Jus Cogens (in Emancipating International Law: Confronting the Violence of Racialized Boundaries, Mohsen al Attar, Ata Hindi, & Claire Smith, eds., forthcoming). Here's the abstract:

The international law doctrine of jus cogens recognizes that some prohibitions – such as those against slavery, genocide, and torture – have peremptory status above other international norms and cannot be negotiated away by treaty. However, in their 1993 article “The Gender of Jus Cogens” Hillary Charlesworth and Christine Chinkin claimed, “the concept of jus cogens is not a properly universal one as its development has privileged the experiences of men over those of women, and it has provided a protection to men that is not accorded to women.” The definition of jus cogens in spaces dominated by men, they argued, entrenched gendered experiences with distributive consequences. Jus cogens norms did not address the impacts on women of violence, poverty, food insecurity, and inaccessible health care. Jus cogens norms are biased and have been used to reinscribe benefits that men accrue from oppressing women.

Charlesworth and Chinkin published their article during early engagements with Feminist Approaches to International Law across the Global North, which foregrounded how international law is socially constructed to produce gender disparities. Sources of inspiration for these approaches included literature on colonialism and Third World feminisms. In their discussion of jus cogens, Charlesworth and Chinkin therefore used the term ‘women’ to refer to persons ‘around the world’ whose experiences jus cogens should reflect. Nonetheless, proposals to accommodate women in international law coming from the Global North have since been critiqued for eclipsing alternate feminisms and perspectives concerned with racism, colonialism, gender normativity, and economic inequality, with important consequences.

Acknowledging these nuances, we wish to focus on whether jus cogens reinforces hierarchies associated with multiple forms of imperialism. This has led us to ask if jus cogens might be associated with the dominance of people who have benefitted from and reproduce the white supremacy of colonialism and transatlantic slavery. The question is whether jus cogens might be defined by processes of racialization, simultaneously caught up with gender and class. We recognize, as Charlesworth and Chinkin did, that evoking jus cogens norms is often symbolic in practice. Our intuition is that jus cogens has at times been evoked for its symbolic value to discipline racialized peoples across a gender spectrum, while their appeals to jus cogens have often been excluded from its ambit of protection.

Kleinlein: Change of Peremptory Norms of General International Law (Jus Cogens)

Thomas Kleinlein (Christian-Albrechts-Universität zu Kiel - Law) has posted an ESIL Reflection on Change of Peremptory Norms of General International Law (Jus Cogens).

Haque: Peremptory Norms and Fundamental Values

Adil Ahmad Haque (Rutgers Univ. - Law) has posted Peremptory Norms and Fundamental Values. Here's the abstract:

The International Law Commission recently adopted a set of draft conclusions and commentaries on peremptory norms of general international law (jus cogens). It’s quite likely that the ILC’s work will be widely viewed as a definitive restatement of the law in this area. But the conclusions are at best ambiguous about what holds this area of law together. And, on balance, the commentaries tend to favor the view that non-derogability lies at the center of it all, explaining characteristics like hierarchical superiority and universal applicability, as well as consequences like the invalidity of conflicting rules. That’s the view I will reject.

My basic claim will be that peremptory norms—their characteristics, their consequences, and their content—are best explained by their moral function of reflecting and protecting the fundamental values of the international community. In contrast, the formal characteristic of non-derogability is a consequence of this moral function, rather than a basic or fundamental feature. This understanding makes us better positivists, because we better understand what this human artifact is for, how its various features enable it to perform its function, and why the dynamic process through which international law navigates its own uncertainties invites normative argument into legal reasoning. Since peremptory norms underwrite the unity of the international legal order, this understanding places consensus and contestation over fundamental values at the very heart of international law.

Tladi: Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations

Dire Tladi (Univ. of Pretoria - Law) has published Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Disputations (Brill | Nijhoff 2021). The table of contents is here. Here's the abstract:

Peremptory Norms of General International Law (Jus Cogens): Disquisitions and Dispositions brings together an impressive collection of authors addressing both conceptual issues and challenges relating to peremptory norms of general international. Covered themes in the edited collection include concepts relating to the identification of peremptory norms, consequences of peremptory norms, critiques of peremptory norms, the relationship between peremptory norms and particular areas of international law as well as the peremptory status of particular norms of international law. The contributions are presented from an array of scholars and experts with different perspective, thus providing an interesting mosaic of thoughts on peremptory norms. Written against the backdrop of the ongoing work of the International Law Commission, it exposes some tensions inherent in the jus cogens.

New Issue: Jus Cogens

The latest issue of Jus Cogens (Vol. 3, no. 2, 2021) is out. Contents include:

• Sara De Vido, A Quest for an Eco-centric Approach to International Law: the COVID-19 Pandemic as Game Changer
• Panagiotis Sotiris, Gramsci and Althusser Encountering Machiavelli: Hegemony and/as New Practice of Politics
• Jan-Werner Müller, A Theory of Standards for Intermediary Powers
• Massimo Fichera, The Idea of Discursive Constituent Power
• Thomas Bustamante & Conrado Hübner Mendes, Freedom Without Responsibility: the Promise of Bolsonaro’s COVID-19 Denial

New Issue: Jus Cogens

The latest issue of Jus Cogens (Vol. 3, no. 1, 2021) is out. Contents include:

• Special Issue: Debating A. Buchanan's 'Our Moral Fate. Evolution and the Escape from Tribalism'
• Claudio Corradetti, What Makes Us Human? Evolution, Intentionality and Moral Progress
• Andrew Buchwalter, Human Dignity and the Intercultural Theory of Universal Human Rights
• John Tasioulas, “Fantasy Upon Fantasy”: Some Reflections on Dworkin’s Philosophy of International Law
• Kim Sterelny, On Our Moral Fate
• Simona Tiribelli, Debating Buchanan’s Our Moral Fate: Why Exercising Moral Reasoning Cannot Be a Luxury Good
• Colleen Murphy, Transitional Justice and Our Moral Fate
• Claudio Corradetti, Morality and Tribalism
• Allen Buchanan, Replies to Commentators

Aust: Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission

Helmut Aust (Freie Universität Berlin - Law) has posted Legal Consequences of Serious Breaches of Peremptory Norms in the Law of State Responsibility: Observations in the Light of the Recent Work of the International Law Commission (in Peremptory Norms of General International Law: Perspectives and Future Prospects, Dire Tladi ed., forthcoming). Here's the abstract:

The paper deals with the legal consequences of serious breaches of peremptory norms under general international law. After setting out some aspects of the complex relationship between jus cogens and the law of state responsibility, the contribution presents the recent work of the UN International Law Commission (ILC) on these questions. This work is contextualised in the light of the debates in the Sixth Committee of the UN General Assembly. The contribution discusses to what extent the Commission has offered the international community of States merely an ‘effort to imagine’ hypothetical consequences of breaches of jus cogens – or whether the special consequences for serious breaches of peremptory norms of general international law are now indeed firmly accepted in international law. In particular, the paper assesses recent practice with respect to the three additional consequences that the ILC included in the Articles on State Responsibility in 2001 – the obligation of cooperation as well as the obligations to refrain from recognizing situations brought about by serious breaches of peremptory norms as lawful and to render aid or assistance for maintaining such situations.

New Issue: Jus Cogens

The latest issue of Jus Cogens (Vol. 2, no. 3, 2020) is out. Contents include:

• Patrik Fridlund, Post-truth Politics, Performatives and the Force
• Kriszta Kovács, Parliamentary Democracy by Default: Applying the European Convention on Human Rights to Presidential Elections and Referendums
• Maurits Helmich, Spain, Catalonia, and the Supposed Authority of the Judiciary
• Matteo Mandarini, The Vicissitudes of Representation

New Issue: Jus Cogens

The latest issue of Jus Cogens (Vol. 2, no. 2, 2020) is out. Contents include:

• Samantha Besson, Sovereign States and their International Institutional Order
• Claudio Corradetti, Hegemony Critique and the Crisis of the European Union
• Chris Thornhill & Carina Rodrigues de Araújo Calabria, Global Constitutionalism and Democracy: the Case of Colombia
• Thaddeus Metz, Popper’s Politics and Law in the Light of African Values
• Cristina Lafont, Defending Democratic Participation Against Shortcuts: a Few Replies to Thomas Christiano

New Issue: Jus Cogens

The latest issue of Jus Cogens (Vol. 2, no. 1, 2020) is out. Contents include:

• Pavlos Eleftheriadis, Corrective Justice Among States
• Aoife O’Donoghue, Syria & Locating Tyranny, Hegemony and Anarchy in Contemporary International Law
• Ekaterina Yahyaoui Krivenko, On the (Im)Possibility of Global Norms in a Divided World: Lessons from the Seventeenth Century
• Seyla Benhabib, The End of the 1951 Refugee Convention? Dilemmas of Sovereignty, Territoriality, and Human Rights

New Issue: Jus Cogens

The latest issue of Jus Cogens (Vol. 1, no. 2, 2019) is out. Contents include:

• Alessandro Ferrara, “Most Reasonable for Humanity”: Legitimation Beyond the State
• Ryan Mitchell, Hegemony in a Multipolar World Order: Global Constitutionalism and the Großraum
• Maksymilian Del Mar, The Declamatory Tradition of Normative Inquiry: Towards an Aesthetic History of Legal and Political Thought

Linderfalk: Understanding Jus Cogens in International Law and International Legal Discourse

Ulf Linderfalk (Lund Univ. - Law) has published Understanding Jus Cogens in International Law and International Legal Discourse (Edward Elgar Publishing 2020). Delighted that this is part of the Elgar International Law Series. Here's the abstract:

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.

Offering a new focus for jus cogens research, this insightful work moves beyond traditionally designed investigations of the application of jus cogens in international law and instead analyses the many implicit basic assumptions held by participants in international legal discourse, and the way in which these assumptions explain their various claims. Clarifying the precise relationship between submitted propositions and a legal positivist or legal idealist frame of mind, this captivating book will influence not only the future understanding and practice of international law, but also its codification and progressive development.

Inaugural Issue: Jus Cogens

The inaugural issue of Jus Cogens (Vol. 1, no. 1, 2019) is out. Contents include:

• Jean L. Cohen, Populism and the Politics of Resentment
• Wojciech Sadurski, Public Reason in the Universe of Reasons
• Frank I. Michelman, Political-Liberal Legitimacy and the Question of Judicial Restraint
• Robert E. Goodin, Rough Justice

de Beer: Peremptory Norms of General International Law (Jus Cogens) and the Prohibition of Terrorism

Aniel Caro de Beer (Univ. of Johannesburg - Law) has published Peremptory Norms of General International Law (Jus Cogens) and the Prohibition of Terrorism (Brill | Nijhoff 2019). Here's the abstract:

In Peremptory Norms of International Law and Terrorism (Jus Cogens) and the Prohibition of Terrorism, Aniel de Beer analyses the role of these norms (jus cogens norms) in the fight against terrorism. Jus cogens norms protect fundamental values of the international community, are hierarchically superior and non-derogable. The author argues, based on an analysis of the sources of international law, that the prohibition of terrorism has become the jus cogens norm of our time. She further considers the impact of the status of the prohibition of terrorism as a jus cogens norm on other norms of international law relevant in the fight against terrorism, namely the prohibition of torture, the right to a fair trial and the prohibition of the inter-state use of force.

de Wet: Entrenching International Values Through Positive Law: The (Limited) Effect of Peremptory Norms

Erika de Wet (Univ. of Pretoria - Law) has posted Entrenching International Values Through Positive Law: The (Limited) Effect of Peremptory Norms (in A Metamorphosis of International Law? – Tracing Value Changes in the International Legal Order From the Perspectives of Legal and Political Science, Heike Krieger & Andrea Liese eds., forthcoming). Here's the abstract:

Underpinning a legal system with certain values and helping to resolve norm conflicts is in domestic legal systems usually achieved through hierarchical superiority of certain norms of a constitutional nature. The present paper examines the question whether jus cogens can discharge this function within the traditionally horizontal and decentralized international legal order. In so doing, it commences with an overview of the historical origins of peremptory norms in legal scholarship, followed by its endorsement by positive law and courts and tribunals. This analysis illustrates that there are lingering uncertainties pertaining to the process of identification of peremptory norms. Even so, the concept has been invoked in State executive practice (although infrequently) and has been endorsed by various courts. However, such invocation thus far has had a limited impact from a legal perspective. It was mainly confined to a strengthened moral appeal and did in particular not facilitate the resolution of norm conflicts. The contribution further suggests that this limited impact results from the fact that the content of peremptory obligations is either very narrow or very vague. This, in turn, implies a lack of consensus amongst States regarding the content (scope) of jus cogens, including the values underlying these norms. As a result, it is questionable whether the construct of jus cogens is able to provide meaningful legal protection against the erosion of legal norms. It is too rudimentary in character to entrench and stabilize core human rights values as the moral foundation of the international legal order.

Ohlin: In Praise of Jus Cogens' Conceptual Incoherence

Jens David Ohlin (Cornell Univ. - Law) has posted In Praise of Jus Cogens' Conceptual Incoherence (McGill Law Journal, forthcoming). Here's the abstract:

The most compelling account of jus cogens is that it flows from natural law and constitutes the “ethically minimum” content of international law. Although natural law was once considered an acceptable and obvious approach to jurisprudence, its significance has waned at the expense of legal positivism. However, the hierarchical quality of jus cogens is best explained by some element of natural law—and its explicit invocation of moral content—rather than anything one might find in legal positivism.

Of course, international lawyers have persistently refused to recognize the latent naturalism within jus cogens. While rueful from the point of view of legal theory, the obfuscation was nonetheless essential for jus cogens to succeed. In an alternate world where jus cogens was correctly viewed as a vestige of natural law, modern international lawyers would never have accepted it.

One might lament the failure to recognize the natural law origins of jus cogens because it hampered the development of standards for identifying which legal norms counted as jus cogens. However, no account of jus cogens offers compelling, unambiguous criteria, and second, the lack of clarity on its criteria was a good price to pay in exchange for the legal category’s widespread adoption. In the end, the notion that jus cogens is consistent with international law’s legal positivism was a useful fiction, a “noble lie” that gave us modern human rights law.

Costelloe: Legal Consequences of Peremptory Norms in International Law

Daniel Costelloe (Wilmer Cutler Pickering Hale and Dorr LLP) has published Legal Consequences of Peremptory Norms in International Law (Cambridge Univ. Press 2017). Here's the abstract:

When is a norm peremptory? This is a question that has troubled legal scholars throughout the development of modern international law. In this work, Daniel Costelloe suggests - through an examination of State practice and international materials - that it is the legal consequences of a norm which distinguish it as peremptory. This book sheds new light on the legal consequences that peremptory norms have, for instance, in the law of treaties, international responsibility and state immunity. Unlike their substance or identification, the consequences of peremptory norms have remained under-studied. This book is the first specifically on this topic and is essential reading for all scholars and practitioners of public international law.

Goldmann: Relative Normativity

Matthias Goldmann (Goethe-Universität Frankfurt am Main - Law) has posted Relative Normativity (in Fundamental Concepts of International Law, Jean d’Aspremont & Sahib Singh eds., forthcoming). Here's the abstract:

This paper critically reassesses the notion of relative normativity in international law and the related debate triggered by the emergence of ius cogens and international soft law. Contrary to standard positivist assumptions which treat relative normativity as a pathology, the paper argues that relative normativity has been a consistent feature of international law since its emergence in early modernity. Tracking this development, the paper shows that the rejection of relative normativity is due to the particular political constellation of the formative period of international law around the turn of the 19th to the 20th century with its focus on unfettered state sovereignty. The postwar era, and even more so the era of globalization, saw a relativization of state sovereignty that allowed the re-emergence of relative normativity. It has prompted a theoretical debate, in which attitudes towards relative normativity correlate with general attitudes about globalization and its impact on international law. The paper concludes by arguing that relative normativity is likely to survive even the recent transformations of global governance caused by the more authoritarian forms of government. Efforts to subject relative normativity to the principles of democracy, the rule of law, and human rights are therefore more necessary than ever.

Murphy: Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission

Sean D. Murphy (George Washington Univ. - Law) has posted Protection of Persons in the Event of Disasters and Other Topics: The Sixty-Eighth Session of the International Law Commission (American Journal of International Law, forthcoming). Here's the abstract:

The International Law Commission held its sixty-eighth session in Geneva from May 2 to June 10, and from July 4 to August 12, 2016, under the chairmanship of Pedro Comissário Afonso (Mozambique). Notably, the Commission completed on second reading a full set of eighteen draft articles with commentary on the protection of persons in the event of disasters and recommended to the United Nations General Assembly that it elaborate a convention based on the draft articles.

Additionally, the Commission adopted on first reading a complete set of draft conclusions, with commentary, for two topics: identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. As such, both topics might be completed by the Commission on second reading in 2018.

Progress was also made in developing draft articles on crimes against humanity; draft guidelines on protection of the atmosphere; draft conclusions on jus cogens; and draft principles on protection of the environment in relation to armed conflicts. The Commission commenced a debate on a proposed draft article on “limitations and exceptions” to the immunity of state officials from foreign criminal jurisdiction, but, due to insufficient time, the debate will continue in 2017. Furthermore, an additional proposed guideline on the provisional application of treaties was sent to the drafting committee. The Commission decided to add two new topics to its long-term work program: the settlement of international disputes to which international organizations are parties; and succession of states in respect of state responsibility.

Christófolo: Solving Antinomies between Peremptory Norms in Public International Law

Joao Christófolo has published Solving Antinomies between Peremptory Norms in Public International Law (Schulthess 2016). Here's the abstract:

Ius cogens has been a subject of great interest in international law studies. But the inquiry into the collision between peremptory norms has been virtually non-existent. This book aims at addressing this particular doctrinal gap. Antinomies between ius cogens norms may arise in the conflicting simultaneous application of the peremptory norms on human rights, the non-use of force and self-determination. In order to determine how norms of ius cogens might be applied in situations of normative conflict - either apparent or real ones -, the author suggests the use of “weighing and balancing” techniques. After analysing the main theories on the issue, and describing the most commonly accepted peremptory norms in current international law, this work approaches the problem of antinomies between peremptory norms by applying “weighing and balancing” techniques to two case studies. First, the apparent conflict between the prohibition of the use of force and the prohibition of the most serious violations of human rights and international humanitarian law, as embodied in the notion of “humanitarian intervention”. Second, the real conflict between the prohibition of the use of force and the right to self-determination as conveyed by a hypothetical Israeli-Palestinian peace agreement entailing the partial cession of occupied territories. Norms of ius cogens are known for regulating sensitive and highly axiological matters, as shown by these two case studies. As a result, finding answers to the problem of conflicting peremptory norms is important not only as regards the doctrinal advancement in the field of international law, but also for the purpose of reaching lawful solutions to central concerns of the international community at large.