Abstract
Peremptory norms or jus cogens hold a unique position in international law. Unlike customary international law and treaty law, they abide no derivation and bind all states regardless of their willingness to be bound. Some scholars had elaborated fundamental theories to answer the theoretical background of jus cogens. However, they have never reached a satisfactory result. This study aims to elaborate the theoretical background of jus cogens and to observe the relationship between jus cogens, obligation erga omnes, and customary international law. The positivists recognize that jus cogens is an imperative norm within state practice and opinio juris. The positivist theory is not in line with the concept that jus cogens bound to states without their consent since every state has their sovereignty and cannot be bound by any kind of provision without consent. The proponents of the natural law theory stated that peremptory norms are inherited from the tradition of natural law so that it is the highest norm in international law that directly binds countries. On the other hand, the public order theory states that international law recognizes important (imperative) norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law. The three theories are considered insufficient to answer the philosophical basis of jus cogens. In its development, therefore, some new theories have been developed to challenge the basis of jus cogens.
Highlights
Jus cogens is considered as a problematic term in international law
The public order theory states that international law recognizes important norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law
The third tradition of international legal theory defines jus cogens as the norm of public order, which is important for the unity of international law as a legal system
Summary
Jus cogens is considered as a problematic term in international law. The scope of jus cogens enumerated in Article 53 of the Vienna Convention on the Law of Treaties (VCLT) 1969, regardless there is no clarity on the definition of jus cogens. In national legal system, government impose public order as a norm that must be obeyed by the society This is an evidence and a condition that must be fulfilled since the norm has become a customary law. States are prevented from making any changes by agreement and there is no possibility of renunciation Vattel says, It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or convention and between customs which are innocent and reasonable and those which are unjust and deserving of condemnation. Vattel emphasizes the principle of lex specialis, which generally allows state to override or modify general principles of international law This principle cannot be applied if the agreements established between states are contrary to. The main norm at issue is not the existence of individual accountability, but the characters of war crimes and their trial without the need for states’ approval. 6
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