Genesis, function and identification of jus cogens norms

Abstract

Against the backdrop of scepticism in legal writings, the purpose of this chapter is to assess which functions jus cogens can fulfil. It takes up the genesis of the concept and shows that state and court practice display a rather narrow notion with respect to the functions of the jus cogens principle. This is due to the definition and legal consequences laid down in the Vienna Convention on the Law of Treaties and the International Law Commission's codifications, which suggest a legal formalist approach with respect to the identification of peremptory norms. The ways in which jus cogens is presented as an argument today are at times contradictory, but do not justify fear of abuse. However, they point at a role, which is more significant than the technical functions of jus cogens, namely its symbolic value in that the concept of jus cogens denotes basic conditions of collective and individual self-determination, most notably in the area of human rights. In that function, it lends itself for legal policy purposes. Ensuing uncertainties of content are a problem not genuinely linked to jus cogens, and they must be addressed with respect to the underlying obligations rather than to the concept itself. However, they advocate in favour of a narrow concept of peremptory norms.