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Although, today, jus cogens is a recognized element of international law and international legal discourse alike, many issues of vital importance to a well-functioning jus cogens regime remain unsettled. The current debate centres on the following six questions: (1) What is the source of jus cogens obligations? (2) What is the role of consent in the creation and modification of jus cogens norms? (3) How do we identify norms belonging to this category? (4) What does the category comprise? Are there such things, for example, as regional jus cogens or jus cogens principles? Are jus cogens rules necessarily rules of conduct? (5) What are the function and effects of the international jus cogens regime? (6) What is the function of jus cogens in international legal discourse? Overall, the intense scholarly debate had on peremptory international law over the last ten to twenty years has not been terribly productive. One important reason for this would seem to be the general failure of discussants to fully understand the relevance of some basic assumptions that they bring to bear on their respective analysis and consideration of the topic. To facilitate future constructive debate, this essay aims to clarify the relevance for any thoughtful consideration of jus cogens issues of legal positivism and legal idealism. While legal positivism and legal idealism are sets of theories offered to explain the concept of law, it is not surprising that lawyers of different camps will have different answers to questions (1) and (2). As argued in this essay, however, the influence of different theoretical approaches to the concept of law goes further than this—it permeates the entire jus cogens debate. Consequently, depending on whether lawyers take the position of a legal positivist or a legal idealist, they will be inclined to answer differently all questions (1)–(6).

While recognition of jus cogens norms is nowadays largely undisputed it remains a question surrounded by ambiguities and uncertainties. Nonetheless, one can assert that it is part of customary law. In fact, its customary status pre-dates its incorporation in the Vienna Convention on the Law of Treaties with respect to both jus cogens and jus cogens superveniens. Its customary nature fosters the applicability of jus cogens beyond the purview of treaty law. While the notion has gradually permeated international case law, its rhetorical force has not yet translated into solving a legal dispute at the inter-state international responsibility system. Developments in the fields of human rights and international criminal law suggest that the time is ripe to move onto such a stage: jus cogens inherent force may serve as means for compelling respect for the commands and prohibitions of international law beyond the traditional state-centred system. Dispelling some unfounded assumptions about potential disrupting effects in international relations that would ensue from developing the legal effects of jus cogens and jus cogens superveniens, in tandem with judicial interpretation of crucial questions that may arise (e.g. intertemporality and separability of treaty provisions) may advance such an endeavour. It is further argued that jus cogens and jus cogens superveniens can have a sound impact beyond the realm of treaty law, where its contours and effects still require further development in international case law. Reparations for breaches of jus cogens or for violations of international obligations involving underlying compliance with jus cogens may contribute to further the notion’s practical value.

Robert Kolb, one of the leading international scholars of his generation, offers a seminal survey of the question of peremptory international law. The author analyses and systemises different questions, such as: the typology of peremptory norms beyond the Vienna Convention on the Law of Treaties; here he distinguishes between ‘public order’ jus cogens and mere ‘public utility’ jus cogens. Furthermore, what about relative jus cogens, such as regional jus cogens norms or conventional jus cogens norms? What about some consequences of jus cogens breaches in the law of State responsibility: are they themselves jus cogens? Thus, can individual war reparations be renounced by lump-sum agreements? What happens if different jus cogens norms are in conflict? Is there a difference between the scope of jus cogens in inter-State relations and its scope for other subjects of law, such as the UN and its Security Council? Is jus cogens necessarily predicated on

In addition to the tremendous human suffering which it has produced, the fighting in Bosnia- Herzegovina since 1992 has had an important impact upon international relations. This article examines one aspect of this impact: the extent to which this war has highlighted the emptiness of the concept of jus cogens as applied in public international law.Since at least some uses of force by international actors and some acts in the course of war-making are said to violate rules of jus cogens, one would expect that at least the possibility of the violation of such rules would arise whenever an armed conflict with any sort of international character takes place. In the case of Bosnia-Herzegovina, however, the problem is not simply that such violations have arguably taken place, but that compliance with a rule of international law with considerable claim to jus cogens status apparently helped set off the conflict; that the United States individually and the Security Council of the United Nations collectively are actively promoting a formula for settling the conflict that would seem to require acquiescence in acts violative of supposed to be of jus cogens character; and that the ultimate resolution of the issue may well require what amounts to toleration of violation of still other rules widely believed to be part of jus cogens.The aim of this article is neither to condemn departures from jus cogens nor to engage in verbal gymnastics designed to obfuscate the fact that the international community is treating or will treat peremptory norms as moralisms irrelevant in practical terms. Rather, this article seeks to show that the problem lies in the concept of jus cogens itself. More specifically, the article intends to make the case that the concept is intellectually indefensible - at best useless and at worst harmful in the practical conduct of international relations.The article first provides a brief history of developments in the fighting in Bosnia-Herzegovina. It next addresses the history of the jus cogens concept and discusses a few of the types of action constituting violations of rules which have jus cogens status, if any do. Finally; the article will both critique the concept of jus cogens and show how the fighting in Bosnia-Herzegovina illustrates the problems with that concept.

In addition to the tremendous human suffering which it has produced, the fighting in Bosnia- Herzegovina since 1992 has had an important impact upon international relations. This article examines one aspect of this impact: the extent to which this war has highlighted the emptiness of the concept of jus cogens as applied in public international law.Since at least some uses of force by international actors and some acts in the course of war-making are said to violate rules of jus cogens, one would expect that at least the possibility of the violation of such rules would arise whenever an armed conflict with any sort of international character takes place. In the case of Bosnia-Herzegovina, however, the problem is not simply that such violations have arguably taken place, but that compliance with a rule of international law with considerable claim to jus cogens status apparently helped set off the conflict; that the United States individually and the Security Council of the United Nations collectively are actively promoting a formula for settling the conflict that would seem to require acquiescence in acts violative of supposed to be of jus cogens character; and that the ultimate resolution of the issue may well require what amounts to toleration of violation of still other rules widely believed to be part of jus cogens.The aim of this article is neither to condemn departures from jus cogens nor to engage in verbal gymnastics designed to obfuscate the fact that the international community is treating or will treat peremptory norms as moralisms irrelevant in practical terms. Rather, this article seeks to show that the problem lies in the concept of jus cogens itself. More specifically, the article intends to make the case that the concept is intellectually indefensible - at best useless and at worst harmful in the practical conduct of international relations.The article first provides a brief history of developments in the fighting in Bosnia-Herzegovina. It next addresses the history of the jus cogens concept and discusses a few of the types of action constituting violations of rules which have jus cogens status, if any do. Finally; the article will both critique the concept of jus cogens and show how the fighting in Bosnia-Herzegovina illustrates the problems with that concept.

<i>Jus cogens</i> is a mysterious body of international law. For decades, international lawyers have sought to answer a range of questions about <i>jus cogens</i>. Yet uncertainty persists. This essay makes a start in unravelling the mystery by addressing a basic question: how <i>jus cogens</i> is made, changed, or unmade. Prominent in existing explanations of <i>jus cogens</i> law-making is the idea of consent. Many attempts have been made to show that <i>jus cogens</i> is consensually made, or that it is not. I suggest that we should abandon consent-based explanations; consent is not a useful lens through which to analyse <i>jus cogens</i> law-making. At the same time, existing accounts which do reject consent are not persuasive either. I seek to show how we can more effectively explain <i>jus cogens</i> law-making without relying on the idea of consent. In essence, a rule of international law becomes <i>jus cogens</i> because it is believed by certain legal officials – principally states – to be morally paramount. These moral beliefs are social facts which go to the weight of the rule, with the consequence that the rule’s weight increases. <i>Jus cogens</i> rules are weighty rules in international law. This explanation of <i>jus cogens</i> law-making draws upon familiar insights in the philosophy of law, and circumvents the problems which trouble existing approaches.

Abstract Traditionally the problem of jus cogens has been conceptualised as a problem of identification of peremptory norms, taking as a starting point Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties. These provisions in fact, while defining jus cogens and contemplating invalidity and termination as special effects affecting incompatible treaties, fail to enumerate what norms are to be considered peremptory. In recent times, however, jus cogens has been invoked and applied – as a sort of “super-law” taking precedence over all other international norms – in legal contexts other than the law of treaties with a variety of “special” or “derogatory” effects. Such an expansion calls for a refocusing of the “identification” problem surrounding jus cogens in terms of effects rather than, or solely, in terms of norms. But it seems that the effects usually ascribed to jus cogens cannot be unlimited in number and scope. This implies that a criterion is needed to determine if and to what extent a certain jus cogens' effect is produced. It is submitted that a fully inductive approach should be taken. Jus cogens appears then in most cases to be relied upon ad abundantiam to “prove” a special effect which already flows either from an applicable treaty or from state practice and opinio iuris. In the remaining instances, reliance upon jus cogens seems to amount to invoking the need for the emergence of a corresponding new customary norm in the future, evidently on the assumption (whether right or wrong) that this norm does not exist yet or is not yet well-established. As a result, the key constructive meaning that can be attached to jus cogens is “promotional” – hence provisional and “educational” – insofar as the interpreter feels that a precedent, which is assumed as reflecting a fundamental value of the international community as a whole and capable of reasonably being accepted by the generality of states, should be set in order to bring about a change in existing law.

This editorial explores how two developments—the humanization and fragmentation of international law—permeate all aspects of jus cogens: its foundations, content and consequences. The authors are particularly intrigued by the question of how the unceasing popularity of jus cogens can be reconciled with its limited role in legal practice. It has often been observed that jus cogens owes its proliferation to the increased focus on human rights. This, in turn, has yielded two effects. First, such focus on human rights has triggered greater attention for the enforcement of peremptory norms. Secondly, it has put the responsibility of non-state actors for violation of jus cogens norms on the agenda. It may not be too far-fetched to understand the reticence of states to accept the expansion of jus cogens and its effects against the background of the fear that this will weaken the power of the state, whereas one might argue that the state is rather in need of reinforcement, in view of the manifold challenges it is confronted with. Next to the process of ‘humanization’ of international law, the appeal of jus cogens can be explained from the international lawyer’s desire for a single and coherent system of law, including a more clearly established hierarchy of norms. This aspiration is primarily infused by the concern for ‘fragmentation’ of international law. However, as in the case of humanization, countervailing factors prevent a further expansion of jus cogens in international law. For one thing, jus cogens, belonging to the realm of general international law, is too coarse and inflexible to be of effective use in special sub-fields of international law. A second explanation for the limited role played by jus cogens is that specialized international or regional courts and tribunals are hesitant or may even lack the competence to pronounce on a conflict between their legal order and other branches of international law.

This article forms a contribution to the ongoing scholarly debate on the possible effect of jus cogens norms. For the purpose of the article, it is assumed that peremptory norms certainly exist in positive international law. According to the argument, even if we limit the effects of jus cogens norms to those described in the 1969 Vienna Convention, the jus cogens concept takes us farther than most commentators seem to realize. This is due partly to the power potential invested in the jus cogens concept, partly to the intricate structure typical of legal norms. In fact, as argued in this article, if we take the existence of peremptory international law to its logical consequence, it will carry too far: most actors on the international arena will consider the effects unacceptable. Using as an example the jus cogens norm most often referred to in the literature – the principle of non-use of force – it is a purpose of the present article to establish this proposition as valid. A second purpose is to attract attention to what appears to be the really crucial question for further discussion: How should the effects of jus cogens be limited? Whoever opened the Pandora's Box that once contained the jus cogens concept obviously did not fully realize the consequences that this would have for international law in general. How can this situation be remedied?

Foreword Christian Tomuschat and Jean-Marc Thouvenin I. L'identification des regles fondamentales - un probleme resolu ? Paul Tavernier II. Jus Cogens, Obligations Erga Omnes and other Rules - The Identification of Fundamental Norms Stefan Kadelbach III. An Example of Jus Cogens: The Status of Prisoners of War Stefanie Schmahl IV. Un exemple remarquable d'application du jus cogens, le statut de prisonnier de guerre Philippe Weckel V. Ius cogens and the Law of Treaties Wladyslaw Czaplinski VI. The Duty Not to 'Recognize as Lawful' a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation Without Real Substance? Stefan Talmon VII. L'obligation de non-reconnaissance des situations creees par le recours illicite a la force ou d'autres actes enfreignant des regles fondamentales Theodore Christakis VIII. La specificite des reparations pour crimes internationaux Elisabeth Lambert-Abdelgawad IX. Do Damages Claims Arising from Jus Cogens Violations Override State Immunity from the Jurisdiction of Foreign Courts? Thomas Giegerich X. L'immunite des Etats Isabelle Pingel XI. Limits of International Law Immunities for Senior State Officials in Criminal Procedure Torsten Stein XII. The Right of Third States to Take Countermeasures Christian Hillgruber XIII. Special Jurisdiction of the ICJ in the Case of Infringements of Fundamental Rules of the International Legal Order? Matthias Ruffert XIV. La saisine de la Cour internationale de Justice en cas de violation des regles fondamentales de l'ordre juridique international Jean-Marc Thouvenin XV. Violations of Fundamental Norms of International Law and the Exercise of Universal Jurisdiction in Criminal Matters Andreas Zimmermann XVI. La competence universelle en matiere penale Michel Cosnard XVII. Universal Jurisdiction in the Area of Private Law - The Alien Tort Claims Act Georg Nolte XVIII. Competence civile universelle et droit international general Jean-Francois Flauss XIX. Conclusions Alain Pellet XX. Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes - Concluding Observations Christian Tomuschat The Contributors Index Table of Cases / Index de jurisprudence.

The doctrine of jus cogens attracts fierce advocates as well as strong sceptics, who debate the nature, functions and even the existence of such norms. Like Sherlock Holmes, the idea of jus cogens emerged as a concept in the imagination of writers. Over time both Sherlock Holmes and jus cogens have generated widespread belief in their reality, but it is a reality that is subjectively shaped by each follower. Early publicists creating and developing international law posited the existence of extra-consensual norms that constrained the exercise of state sovereignty, a theory that emerged in large part from Christian theology with its notions of overriding divine law. Later publicists argued that non-derogable norms originate either in natural law, ‘necessary’ law, the ‘dictates of the public conscience’, ‘universal law’, or international moral imperatives. Some recent scholars rely on the Vienna Conventions on the Law of Treaties to argue to the contrary that norms of jus cogens do not fundamentally differ from other international rules in their origin; they emerge only from state consent, being identified ‘by the international community of states as a whole’ as peremptory norms. Within the literature as to the origin of jus cogens, in the absence of state practice, theorists differ in their views of the functions the concept serves, some arguing that it is limited in application to treaty law. Others assert that such norms act to place absolute limits on the conduct of states, governments and individuals and establish a hierarchy of norms. This article examines the origin of jus cogens in doctrine and the scant evidence to be found in state practice. It also examines the functions of jus cogens, questioning whether these remain largely literary and theoretical, with an impact like Sherlock Holmes that derives primarily from belief in its existence.

Abstract Few concepts in international law have attracted as much attention or created as much controversy as jus cogens and erga omnes rules. This article attempts to show that jus cogens rules are rules of customary international law, and then to elucidate the relationship between these customary rules and the concept of erga omnes. This article explains that: in contrast to jus cogens rules, erga omnes rules may arise either as customary rules or through treaties; a jus cogens or erga omnes rule could apply to only a limited number of States; although jus cogens rules are necessarily erga omnes rules, erga omnes rules could exist which were not of a jus cogens character.

The international law principle ofjus cogens, or "compelling law," while of potential value in domestic and international human rights litigation, is rarely invoked by name in the United States. This Article proposes that application of jus cogens may enhance judicial enforcement of human rights. The Article defines jus cogens and sets out some of its substantive content. It presents the procedural effects ofjus cogens, with an emphasis on how jus cogens overcomes judicial doctrines that have frustrated plaintiffs in human rights litigation. The Article concludes by showing howjus cogens concepts, under other names, have been a major force in defending rights in the United States.

The article explores the validity of the Furundzija dictum in accordance with which jus cogens has to bind the state in its treaty relations and with respect to acts of the legislature, executive and judiciary. It mainly focuses on the implications of the prohibition of torture as a limitation to the national (constitutional) legislative process (an 'internal manifestation' of jus cogens), as well as to national legislation pertaining to sovereign immunity (an 'external manifestation' of jus cogens). The article also gives some indication of the role of jus cogens in determining the applicable law in conflict of law disputes and in fulfilling the double criminality requirement in extradition proceedings. In the process, it reflects the highly complicated nature between jus cogens and national law. For example, whereas the 'internal manifestation' can result in a strengthening of international norms within the national legal order, the 'external manifestation' has the potential to undermine the binding character of general international law, or even destabilize the international legal order itself. The article also exposes an emerging hierarchy of norms in international law, which is underpinned by a deepening of the international consensus pertaining to the content and hierarchical order of the international value system.

This chapter investigates the existence of environmental jus cogens norms and the possibility of extending peremptory norms into the environmental domain. For this purpose, the chapter briefly describes the trite manifestation and use of jus cogens in international law. It then surveys the current doctrinal state of the art to determine to what extent it could be said that certain norms may or may not have attained the status of jus cogens in the international environmental law (IEL) domain. The latter analysis is then extended to present the reasons for and possible obstacles currently countering, from a theoretical and practical point of view, the adoption of environmental jus cogens norms. The final part of the chapter follows a re-imaginary approach to determine which IEL norms could in future qualify for jus cogens status through the lens of the informally proposed Anthropocene geological epoch.