Jus cogens as a social construct without pedigree

Abstract

This chapter revisits the mainstream foundational nonchalance witnessed in the international legal scholarship relating to jus cogens whereby the practice of courts and tribunals often suffice, for most international lawyers, to compensate a disinterest in the pedigree of jus cogens. The purpose of this chapter is accordingly to depict how international lawyers, by virtue of a series of avoidance-techniques, leave one of their most fundamental doctrines ungrounded without feeling any need to anchor it more firmly in the system of thoughts of international law. Whether such a pedigreelessness actually constitutes a sign of maturity of international legal argumentation, or a theoretical ailment, is not a question that is discussed here. The description of the argumentative constructions to which international lawyers resort in relation to jus cogens to avoid the question of its pedigree is sufficient to illustrate the light treatment generally reserved to the making of the main doctrines of international law and their mystical origin.