Jus Cogens Versus the Chapter VII Powers of the Security Council: With Particular References to Humanitarian Intervention and Terrorism

Abstract

Abstract The idea of the hierarchical superiority of jus cogens norms in relation to all other norms or actions has gained track. Hence, today, the widely held view is that even decisions of the Security Council cannot contravene imperative norms. This runs counter to the indispensable powers of this organ to do whatever it takes to maintain peace. The argument is that the Security Council can, in the face of a threat or breach of peace, one that, in extremis, has the potential to eradicate the human race, take or authorise necessary action even if this action collides with jus cogens. Such decisions of the Security Council may target every single world entity or individual. Moreover, the world peace body can also legislate and create peremptory norms that are binding upon the whole world. This Article fleshes out the constitutional framework in which the exercise of these powers should be understood and uses as illustrations the old alleged right of humanitarian intervention and the new jus cogens crime of terrorism.