The legal consequences of jus cogens and the individuation of norms

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The legal consequences of jus cogens and the individuation of norms. / Linderfalk, Ulf.

In: Leiden Journal of International Law, Vol. 33, No. 4, 01.12.2020, p. 893-909.

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TY - JOUR

T1 - The legal consequences of jus cogens and the individuation of norms

AU - Linderfalk, Ulf

PY - 2020/12/1

Y1 - 2020/12/1

N2 - International law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions. As this article argues, contrary to the general assumption, a lawyer's conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

AB - International law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions. As this article argues, contrary to the general assumption, a lawyer's conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

KW - Concept of law

KW - Individuation of norms

KW - Jus cogens

KW - Legal consequences

KW - Rationality of international legal discourse

U2 - 10.1017/S0922156520000357

DO - 10.1017/S0922156520000357

M3 - Article

AN - SCOPUS:85095711501

VL - 33

SP - 893

EP - 909

JO - Leiden Journal of International Law

JF - Leiden Journal of International Law

SN - 0922-1565

IS - 4

ER -