Understanding the Jus Cogens Debate: The Pervasive Influence of Legal Positivism and Legal Idealism

Abstract

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).