Peremptory International Law – Jus Cogens: A General Inventory

✍ Scribed by Robert Kolb

• Publisher: Hart Publishing
• Year: 2015
• Tongue: English
• Leaves: 168
• Category: Library

✦ Synopsis

Robert Kolb, one of the leading international scholars of his generation, offers a seminal survey of the question of peremptory international law. The author analyses and systemises different questions, such as: the typology of peremptory norms beyond the Vienna Convention on the Law of Treaties; here he distinguishes between ‘public order’ jus cogens and mere ‘public utility’ jus cogens. Furthermore, what about relative jus cogens, such as regional jus cogens norms or conventional jus cogens norms? What about some consequences of jus cogens breaches in the law of State responsibility: are they themselves jus cogens? Thus, can individual war reparations be renounced by lump-sum agreements? What happens if different jus cogens norms are in conflict? Is there a difference between the scope of jus cogens in inter-State relations and its scope for other subjects of law, such as the UN and its Security Council? Is jus cogens necessarily predicated on the concept of a hierarchy of norms? What is the exact extent of the peremptory nature of some rules? Sometimes, only the core of a principle is peremptory, while its normative periphery is not. Also, in the use of force, the peremptory character of the provision is compatible with agreements falling under the recognised exceptions, such as collective self-defence. These and other unusual questions are discussed in the present book.

✦ Table of Contents

Cover
Half-title
Title
Copyright
Preface
Contents
Table of Cases
Table of Legislation
1. Definition and Functions of Jus Cogens
I. Definitional Issues
A. Concept
B. Opinions
C. Definitions
II. Functions of Jus Cogens
2. Negationism: The Adversaries of Jus Cogens
I. An Institutional Critique: Jus Cogens Supposes a Centralised Legal Order
II. A Structural Argument: Jus Cogens Supposes a Clear Distinction Between the Creators and the Subjects of the Law, and Between Objective Law and Contractual Engagements
III. A Second Structural Argument: Jus Cogens Supposes a Hierarchy or Differentiation of Norms Unknown to International Law
IV. A Positive Law Argument: Jus Cogens is Not Recognised in the International Legal Order
V. A Pragmatic Argument: Jus Cogens is Useless
VI. A Political Argument: Jus Cogens is Dangerous for International Law and is a Tool for Political Manipulation
VII. A Multicoloured Bouquet of Arguments Against Jus Cogens: M Glennon
3. Theories of Jus Cogens
I. Jus Cogens as an Expression of Natural Law
II. Jus Cogens as the Public Order of the International Community, Giving Rise to Hierarchically Superior Norms (Rules of Vertical Collision)
III. Jus Cogens as Rules of International Constitutional Law (Fundamental General Principles, Minimum Necessary for the Existence of an International Legal Order)
IV. Jus Cogens as a Legal Technique Inherent in Law: Defining Jus Cogens by Its Effect (Non-Derogability)
V. Jus Cogens as a Specific Rule for Conflict of Successive Treaties (Rules of Horizontal Collision)
VI. The Theories of Cançado Trindade, Chaumont and Wengler
A. Cançado Trindade
B. Chaumont
C. Wengler
4. Legal Construction of International Jus Cogens
I. Relativity of Jus Cogens
II. Types of Jus Cogens
A. Public Order Jus Cogens
B. Public Utility (or Public Law) Jus Cogens
C. Logical Jus Cogens
III. The Extension of Jus Cogens: What Legal Acts and Facts are Covered by the Notion?
A. Agreements
B. Unilateral Legal Acts
C. Customary International Law?
D. General Principles of Law?
IV. Some Special Issues
A. Extent of Peremptoriness
(i) The Non-Use of Force Rule (Hereinafter NUFR)
(ii) Provisions of International Humanitarian Law (Law of Armed Conflict) Containing a ‘Military Necessity’ Clause
B. Human Rights Law and So-Called ‘Derogation’ Clauses
C. International Humanitarian Law, in Particular Articles 6/6/6/7 of Geneva Conventions (GC) I – IV
D. Differentiation of Jus Cogens According to Legal Subjects?
E. Definition of the Proper Normative Conflict
5. Sources of Jus Cogens
I. The General Issue
II. Regional Jus Cogens? Bilateral Jus Cogens?
III. Modification of Jus Cogens Norms
A. Modification
B. Parallelism of Form
6. Effects of Jus Cogens
I. An Extension of Possible Effects: From Nullity of Legal Acts to Consequences of Breach, to Potentially Unlimited Effects
A. Nullity
B. Responsibility
C. Boundlessness?
II. Secondary Rules as Jus Cogens?
III. What Effects Flow from Jus Cogens?
7. A Blind Spot: Conflicts Between Jus Cogens Norms
I. Conflicts Between Public Order Jus Cogens and Public Utility Jus Cogens
II. Conflicts Between Public Utility Jus Cogens Norms
III. Conflicts Between Public Order Jus Cogens Norms
A. ‘Humanitarian Intervention’/‘Responsibility to Protect’
B. Non-Recognition of Territorial Situations Obtained by Force and Self-Determination of Peoples
8. Conclusion
Select Bibliography
Index